Custody

Published on: October 21, 2024

In the absence of extraordinary circumstances, grandmother was denied custody. Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023), the Family Court of Schenectady County dealt with a custody dispute involving a grandmother’s right to custody against the child’s mother. In New York, courts generally uphold the principle that a parent’s right to custody of their children is paramount. However, under certain exceptional circumstances, the court may consider granting custody to a grandparent. These “extraordinary circumstances” include situations where there has been a prolonged disruption of custody, the parent has abandoned the child, shown persistent neglect, unfitness, or other factors that significantly impact the child’s well-being.

For instance, if a parent voluntarily relinquishes care and control of the child to a grandparent for an extended period, typically 24 continuous months, this can constitute an extended disruption of custody that might justify granting the grandparent custody. Additionally, if a parent persistently neglects the child by failing to maintain substantial, repeated, and continuous contact or fails to plan for the child’s future, these behaviors can also be viewed as extraordinary circumstances.

Background Facts

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: September 17, 2024

In the absence of specific related to why the move would be in the best interests of the child, the court denied a parental relocation request. Betts v. Moore, 175 A.D.3d 874 (N.Y. App. Div. 2019)

by Stephen Bilkis

When a parent wants to relocate with their child, they must get the permission of the other parent or of the court. The court will approve such a request to relocate and modification of a custody order if it is in the best interests of the child.

In Betts v. Moore, 175 A.D.3d 874 (N.Y. App. Div. 2019), the petitioner mother sought to modify an existing custody and visitation order, requesting permission to relocate with her child from Ontario County to Monroe County and seeking sole custody. The Family Court dismissed her petitions. On appeal, the mother argued that the court erred in its decision. The appellate court examined the case under the factors set out in Matter of Tropea v. Tropea to determine whether the relocation was in the best interests of the child.

Background Facts

Published on: September 16, 2024

Mother’s request to relocate with child to Florida denied because not in the best interests of the child. Holtz v. Weaver, 94 A.D.3d 1557 (N.Y. App. Div. 2012)

by Stephen Bilkis

This case involved a dispute over parental relocation. The mother, who had primary custody of the child, sought permission from the court to relocate with the child to Florida. The father opposed the move, and the matter was brought before the court for a decision. The court had to determine whether the proposed relocation was in the best interests of the child, as required by New York law.

Background Facts

The mother and father had divorced, and custody of their child was shared, with the mother being the primary custodial parent. The mother filed a petition seeking to modify the custody and visitation arrangements that were part of their divorce judgment. She requested permission to move with the child to Florida, citing her desire to care for her ill father, who lived there. The father opposed the relocation, arguing that it would negatively impact his relationship with the child and was not in the child’s best interests.

Published on: September 4, 2024

Court addressed jurisdictional issues in a child custody case. Katz v. Katz 68 Misc. 3d 1228 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

Child custody disputes with jurisdictional issues present significant challenges, especially when the children have been residing in a state other than New York. One of the primary challenges is determining which state has jurisdiction over the case, as this impacts various aspects of the legal proceedings, including custody determinations and child support orders.

When children have been living outside of New York, the issue of “home state” jurisdiction arises under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Establishing the “home state” is crucial because it dictates which state’s courts have primary jurisdiction over custody matters. However, when children have resided in a different state for an extended period, as in this scenario, determining the “home state” becomes complex and may require careful examination of the children’s residency history.

Furthermore, conflicting claims of residency between the parents add another layer of complexity to jurisdictional disputes. In cases where one parent asserts residency in New York while the other claims residency in another state, the court must carefully evaluate the evidence presented by both parties to determine the children’s primary residence and the state with the most significant connections to their lives.

Published on: August 8, 2024

Court determined the “home state” under UCCJEA. M.G. v. C.M. 61 N.Y.S.3d 191 (N.Y. Sup. Ct. 2017)

by Stephen Bilkis

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a legal framework adopted by most states in the United States to provide clarity and consistency in child custody jurisdiction matters across state lines. It aims to prevent jurisdictional disputes and forum shopping, ensuring that custody determinations are made in the state that is most appropriate and connected to the child and the family.

Under the UCCJEA, the concept of “home state” is crucial in determining which state has jurisdiction over child custody matters. The “home state” is defined as the state where the child has lived with a parent (or a person acting as a parent) for a consecutive six-month period immediately before the commencement of a child custody proceeding. If the child is less than six months old, the “home state” is the state where the child has lived since birth.

When multiple states are involved in a custody dispute, the UCCJEA provides guidelines for determining which state has jurisdiction. Generally, the state that qualifies as the child’s “home state” will have primary jurisdiction over custody matters. However, if no state meets the criteria of being the child’s “home state,” the UCCJEA outlines other bases for jurisdiction, such as significant connections with the child or the child’s family, emergency circumstances, or whether no other state has jurisdiction.

Published on: August 5, 2024

Mother challenges modification to custody order. Turkashwand v. Brock, 189 A.D.3d 1428 (N.Y. App. Div. 2020)

by Stephen Bilkis

Turkashwand v. Brock, 189 A.D.3d 1428 (N.Y. App. Div. 2020) was a case from Nassau County, New York, which involved modifications to custody and parental access. The case addresses an appeal by the mother against several Family Court orders concerning her custodial rights and the allegations against the father.

To modify an existing custody order, a court must find that there has been a substantial change in circumstances since the last order was issued. This standard ensures that the court only revisits custody arrangements when necessary to serve the best interests of the child. The rationale behind requiring a change in circumstances is to provide stability and continuity for the child, avoiding frequent and potentially disruptive changes in their living situation.

In Turkashwand v. Brock, there were allegations of parental alienation. Parental alienation can be a compelling reason for modifying custody because it directly impacts the child’s well-being and their relationship with both parents. Parental alienation involves one parent’s actions that deliberately undermine the child’s relationship with the other parent. This can include speaking negatively about the other parent to the child, limiting contact, or otherwise manipulating the child’s perceptions, resulting in estrangement from the alienated parent.

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 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.