Custody

Published on: December 6, 2024

Mother’s permanency hearing appealed dismissed as moot. Westchester Cnty. Dep’t of Soc. Servs. v. Antoinette W. (In re Malazah W.), 121 N.Y.S.3d 677 (N.Y. App. Div. 2020)

by Stephen Bilkis

Permanency hearings are critical in child welfare cases, ensuring that children placed in the care of social services have stable and appropriate long-term plans. In Matter of Malazah W. and Malikah W., the Family Court addressed the permanency goal for two children removed from their mother’s care due to neglect. The mother appealed a February 2019 permanency hearing order, which continued the goal of reunification and the children’s placement with Westchester County’s Commissioner of Social Services (CSS).

Background Facts

Antoinette W., the mother of Malazah W. and Malikah W., consented to a finding of neglect without admission under Family Court Act Article 10. The children were placed in the custody of CSS. As part of the permanency planning process, a hearing was held in November 2018 to assess the children’s status and determine the appropriate permanency goal.

Published on: November 25, 2024

In the absence of marriage, without evidence of a formal agreement or financial contribution, there no right to property or financial support. Farre v. Lours, 2020 N.Y. Slip Op. 33963

by Stephen Bilkis

Common law marriage is a legal concept that recognizes a couple as married without the need for a formal ceremony or marriage license. It typically arises when a couple lives together for a certain period of time and holds themselves out as married, presenting themselves to others as spouses. In common law marriage states, these couples are treated legally as if they had undergone a formal marriage ceremony.

However, New York does not recognize common law marriage. This means that even if a couple lives together for an extended period and behaves as if they are married, they are not considered legally married under New York law. In New York, a valid marriage requires a formal marriage ceremony performed by an authorized officiant and the issuance of a marriage license.

In Farre v. Lours, 2020 N.Y. Slip Op. 33963, a plaintiff brought forth various claims against the father of her children, seeking financial relief and asserting rights related to their shared assets and living arrangements. The case involved complex legal arguments surrounding the nature of their relationship, financial contributions, and promises made during their partnership.

Published on: November 11, 2024

Appellate Division applies the Indian Child Welfare Act to a custody matter. Suffolk Cnty. Dep’t of Soc. Servs. v. Samantha Q. (In re Dupree M.)

by Stephen Bilkis

The Indian Child Welfare Act (ICWA) of 1978 is a federal law designed to protect the best interests of Native American children and preserve the stability and security of Indian tribes and families. While originally enacted to address the alarming rate of Native American children being removed from their families by nontribal agencies, the ICWA has broader implications for child custody matters, including those in New York.

In New York, the ICWA applies not only to federally recognized tribes but also to tribes recognized by the state. This recognition expands the jurisdictional reach of the ICWA, ensuring that Native American children and families in New York receive the law’s protections. The ICWA establishes minimum federal standards for the removal of Indian children from their families and placement in foster care or adoptive homes that reflect the unique values of Indian culture.

One of the key provisions of the ICWA is its jurisdictional framework, which governs where child custody proceedings involving Native American children should take place. Under the ICWA, tribes have exclusive jurisdiction over such proceedings when the child resides or is domiciled within the tribe’s reservation. However, in cases where the child is not domiciled on the reservation, the ICWA creates concurrent jurisdiction, with a presumption in favor of tribal jurisdiction.

Published on: November 4, 2024

Court upheld mother’s increased visitation. Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), a father appealed against a court order that increased the mother’s visitation rights with their children. Under New York law, in order for there to be a custody modification, there must be a change in circumstances.

A “change in circumstances” refers to significant alterations in the living situation, health, or welfare of a child or parent that impacts a child custody arrangement established by a previous court order. This change must be substantial enough to justify reevaluating the custody or visitation terms to ensure they continue to serve the best interests of the child. Common examples include relocation, changes in a parent’s lifestyle or health, alterations in the child’s needs or preferences, or any developments that materially affect the parent’s ability to provide a stable and supportive environment for the child.

Background Facts

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 6, 2024

Court awarded sole custody to mother due to father’s actions. In re Amanda R., No. 2021-04095 (N.Y. App. Div. Jun. 24, 2021)

by Stephen Bilkis

In custody disputes, courts focus on the best interests of the child when determining which parent should be awarded custody. The “best interests of the child” standard is the guiding principle in custody cases. Courts evaluate which arrangement will most effectively promote the child’s well-being, stability, and development. Factors include the child’s relationship with each parent, the ability of each parent to meet the child’s physical and emotional needs, any history of abuse or neglect, and the parents’ ability to foster a positive relationship with the other parent. Courts also consider the child’s preferences, depending on age and maturity, and ensure decisions prioritize the child’s safety, health, and overall happiness. Each case is unique and evaluated on its specific circumstances.

Background Facts

The mother and father in this case were involved in a contentious custody dispute. The parties shared a child, and the father sought to retain a significant role in the child’s life. However, evidence presented during the hearing revealed issues with the father’s ability to effectively co-parent and prioritize 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.