Custody

Published on: January 13, 2020

Court Orders Supervised Visitation Where Unsupervised Visitation Would Be Detrimental To The Child- Spencer v. Killoran, 2017 NY Slip Op 991 (N.Y. App. Div. 2017)

by Stephen Bilkis

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.

Published on: December 8, 2019

Court Decides Whether to Grant Father Unsupervised Parental Access- Gonzalez v. Santiago, 167 A.D.3d 885 (N.Y. App. Div. 2018)

by Stephen Bilkis

In this case the Family Court was asked to determine whether to grant a father unsupervised visitation with his child because he lost his job and could not to afford the fees associated with supervised visitation.

The parents of the child were never married. Their relationship ended when the child was 6 months old, and the mother accused the father of domestic violence and received an order of protection. Both parents petitioned for custody. The Family Court awarded the mother custody and the father 4 hours of weekly unsupervised visitation. A few months later the mother petitioned the court for a modification to the custody order, alleging that the father had harmed the child. The court changed the father’s access to 4 hours per week of professionally supervised visitation. The order required that the father pay the expense associated with the supervised visitation.

A few months later the father petitioned the court for another modification of the custody order, asking that his access be changed back to unsupervised as he had lost his job and was not able to afford to pay the fees associated with the supervised visitation. In denying the father’s petition the Family Court noted that according to the father’s own testimony, even before he lost his job he had difficulty paying the supervised visitation expenses. Thus, when he lost his job, there was not a true change in circumstances as required for the court to consider modifying a custody arrangement. The father appealed.

Published on: October 8, 2019

Court Will Suspend Visitation Where It Has Been Detrimental to the Child’s Mental State – Lupo v. Rainsford, 162 A.D.3d 1032 (N.Y. App. Div. 2018)

by Stephen Bilkis

In this case a father appealed a decision of the Family Court to suspend his visitation. The original custody order followed the parents’ divorce. The father was granted visitation. The order was later modified requiring that the father’s parental access had to occur in a public place. The mother again petitioned the court to modify the custody order, further restricting the father’s access to the child. The Family Court granted the mother’s petition and suspended the father’s access altogether. The father appealed.

When the Family Court issues a final custody order, it will only change it if the circumstances have significantly changed, as a custody order is issued only after the court has carefully considered substantial testimony and evidence. Often there is testimony from medical professionals. When appropriate the child will testify and give his or her preference. The goal of Family Court is always to facilitate healthy relationships between the child and both parents, and works with both parents to make sure that they each get to spend a significant amount f time with the child. However, each case is different. Ultimately, the child court will take all of the information presented and make a custody decision based on what is in the best interests of the child. In some cases that may mean that it is necessary to modify the order so that the visitation is restricted.

Circumstances that would warrant a change to a custody order include a change in the lifestyle of the household, such as a new job that requires the parent to be absent often. Substance abuse or violence in the household would require a modification as it is not in the best interests of the child to be in a dangerous environment. If a parent experiences physical or mental health problems such that he or she would have difficulties caring for the child or such that the child would be in danger, the court would consider modifying the custody order. Of course, the court will consider the preference of the child, particularly when the child gets older.

Published on: October 8, 2019

Right of Biological Mother to Seek Custody of Children She Surrendered – Beverly L. v. James H. (In re Custody/Visitation Proceeding), 2016 NY Slip Op 26243 (N.Y. Fam. Ct. 2016)

by Stephen Bilkis

The issue before the court is whether a parent who adopted out her children had the right to seek custody of them upon learning that the children were being sexually abused by the adoptive father.

The petitioner voluntarily surrendered her parental rights to her three children, 2 daughters and a son. As part of the post-surrender agreement, the mother retained the right to visit with the children, and she did so regularly. The three children were subsequently adopted. A few years after the adoption, Biological Mother found out that the children were not living in a safe environment. One of her daughters was being sexually abused by Adoptive Father. The other daughter was being sexually abused by an unrelated person. The son was being bullied in the adoptive home. In response, Biological Mother sought custody of the children. Adoptive Father admitted that he sexually abused one of the daughters and was in jail. Adoptive Mother filed a motion opposing Biological Mother’s petition, arguing that she had no standing to file for custody. Adoptive Mother also stated that she wanted to keep the children and that she was divorcing the adoptive father. In addition, the attorney representing the children opposed Biological Mother’s petition for custody.

The question before the court is whether a biological mother who previously surrendered her children has standing to bring an Article 6 custody petition against the children’s adoptive parents in a case where the adoptive father has admitted to sexually abusing one of the children.