Custody

Published on: November 2, 2022

Court denied a parent’s request that the AFC be removed. Proceeding Under Article 6 of the Family Court Act D.D. v. R.M., 2021 N.Y. Slip Op. 50796 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, the purpose of the Attorneys for Children Program (AFC) is to provide representation to minors in court proceedings such as proceedings related to custody and visitation. The AFC is not to show bias for or against any parent. They are to advocate for the child and make decisions based on what is in the child’s best interests. In Proceeding Under Article 6 of the Family Court Act D.D. v. R.M., the court was asked to decide if there should be a custody modification giving sole custody of the children to the father due to the mother violating the custody order. During the proceeding the mother accused the AFC of being inappropriately aligned with the father and filed a motion to have the AFC removed.

Background

The father is entitled to weekly parenting time every Tuesday and Thursday from 2:45 PM to 6:30 PM, and every other Friday to Sunday from 6AM to 6PM, and that he has not seen or Face-Timed with the Children since March 16, 2021. He alleges that although he has arrived at the mother’s home to pick up the Children for all his Court-ordered parenting time, the mother has refused to bring the Children out of the house, and she claims that the Children are afraid of the father and that they do not want to see the father.

Published on: October 31, 2022

Court denied custody modification due to lack of changed circumstances. S.J. v. K.A., 2021 N.Y. Slip Op. 50215 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, the court will not change a custody order unless there has been changed circumstances. In other words, the court does want parents to file petitions to modify custody every few months. Not only would this be a burden on the courts, ever changing custody arrangements would lead to instability in the children’s lives. Of course, if there was a finding of child abuse, the court would order a modification to the custody order. In addition, if the custodial parent intentionally makes it difficult for the noncustodial parent to take advantage of their parenting time, the court would consider a modification to the custody order.

Examples of changed circumstances include the child is over 12 years old and requests a change; one parent has abandoned or neglected the child, a parent is incarcerated, or one of the parents suffered from substance abuse.

In S.J. v. K.A, the court was asked to determine whether there were changed circumstances such that a modification of the custody order was warranted.

Published on: October 26, 2022

Court modified custody order from father having full custody to mother having full custody. S.N. v. J.A., 2021 N.Y. Slip Op. 50304 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, a child custody order can only be changed under specific conditions, including if there has been changed circumstances such that it would be in the best interests of the child that the court modify the child custody order. In this case, the Family Court was asked to consider whether a modification of the custody was appropriate given the circumstances.

Background

The mother and father were parents a child. A March 2017 order granted the father sole custody of the child. The mother now seeks a modification of the order granting her sole custody. The child was born on May 16, 2014. Following the mother’s admission that the child suffered an unexplained injury while in her care, on December 4, 2014, the Suffolk County Family Court issued an order placing the child with the sister of the purported father and permitting the mother supervised visitation. After it was determined that the purported father was not the child’s father, the child was placed with the mother’s aunt and uncle. On March 10, 2016, a final order of protection was issued against the mother on behalf of the child for two years. When paternity was established, the child’s father filed for full custody and it was granted on March 3, 2017. The mother was granted supervised visits with her mother doing the supervising.

Published on: October 19, 2022

Should an incarcerated mother who severely abused her children be permitted visitation? Y.Y.W. v. Z.G., 2022 N.Y. Slip Op. 50071 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In Y.Y.W. v. Z.G., the mother filed a petition seeking to modify two prior final orders, which denied her custody of her two sons and also prohibited visitation. The orders gave the father full legal and physical custody of the subject children.

Background

In 2016, Hon. Ilana Gruebel found clear and convincing evidence that the mother had severely abused, abused and neglected the older son and consequently derivatively severely abused, abused and neglected the younger son, with whom she was pregnant at the time. The older son was brought to the hospital and was found to have suffered severe injuries from abuse. There were 49 bruises on his body and puncture wounds on his face. As a result of the abuse, he suffered permanent injuries including inability to breathe on his own, inability to eat on his own, complete immobility, and loss of sight.

Published on: October 17, 2022

What is the standard for changing a custody agreement? A.L. v V.T.L. 2022 NY Slip Op 22017

by Stephen Bilkis

In A.L. v V.T.L., the Family Court, Rockland County, was asked to consider the standard for changing a custody agreement that gave one parent final decision-making authority over health-related decision for the children. Here, the issue that led to the dispute was the mother’s decision to vaccinate their younger child for COVID.

Background

The parties married on January 26, 2008. The have two children together: A.T.L. born in 2008 and M.T.L. born in 2010. The parties divorced on May 28, 2015. They signed a Stipulation of Settlement on March 27, 2015 which provide that the parties were to have joint legal custody of the children and that the parties were to jointly consult and agree with each other with respect to the children’s health. It also stated that in the event the parties are unable to agree upon a decision, the mother shall have final decision making authority, subject to the father’s right to seek court intervention.

Published on: October 12, 2022

Can parental access to a child be conditioned on COVID vaccination or COVID testing?, C.B. v. D.B., 2021 NY Slip Op 21268

by Stephen Bilkis

While vaccinations have been around for decades, none have caused as much controversy as the COVID vaccine. In C.B. v. D.B., the Supreme Court, New York County, was asked to determine whether a custodial parent require the noncustodial parent to be vaccinated or show a negative test as a condition for assess to the child.

Background

The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, the mother (plaintiff) commenced this action for divorce in September of 2019. The mother, describing defendant’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have the father’s access subject to supervision. The court agreed.

Published on: October 5, 2022

In determining whether a custodial parent has the right to relocate with the child depends on whether doing so would be in the best interests of the child. H.K. v R.C. 2021 NY Slip Op 21190

by Stephen Bilkis

When a court makes a decision about custody, parent access, and other aspects related to the custody and care of a child, the court’s decision must be based on what is in the best interests of the child. In H.K. v R.C., the Supreme Court, New York County, was asked to decide whether a parent’s request to relocate over the objection of the noncustodial parent was in the best interests of the child.

Background

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides father with a regular access schedule of alternate weekends, along with one weekly weekday dinner. It also entitles him to substantial holiday and vacation parenting time.

Published on: October 5, 2022

The presumption that a child born to a marriage is the legitimate child of both parents applies equally to a non-biological parent in a same-sex marriage, Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845 (N.Y. Sup. Ct. 2014)

by Stephen Bilkis

In New York there is a presumption that a child born to a marriage is the legitimate child of both parents. The issue before the Supreme Court of New York, Wendy G-M. v. Erin G-M is whether his same presumption also applies to both parties in a same-sex marriage.

Background

Plaintiff Wendy G-M. and her spouse, Defendant Erin G-M. were married. They were legally married in Connecticut before New York enacted the Marriage Equality Act. Wendy and Erin agreed to have a child together and agreed that the birth mother would undergo artificial insemination. Wendy and Erin also agreed that both the birth mother and the spouse would be the mothers of any child born from the procedure. A child was born to Wendy, who was the birth mother, and the birth certificate listed both Wendy and Erin as the parents. Soon afterward, however, Wendy and Erin separated. Wendy filed for divorce in December 2013, less than then three months after the birth of the child. Wendy would not permit Erin to visit with the child. Erin then filed a request with the Supreme Court of New York for access to the child, maintenance, and attorney fees. In opposition, Wendy argued that Erin was not a legal mother of the child.

Published on: October 3, 2022

What impact should domestic violence have on a custody determination? Wissink v. Wissink, 749 N.Y.S.2d 550 (App. Div. 2002)

by Stephen Bilkis

In Wissink v. Wissink, there was conclusive evidence that the father physically abused the mother. However, there was also conclusive evidence that the father never physically abused the daughter and that the daughter wanted to live with him. The issue that the Appellate Division considered was the impact of a finding of abuse should have on a determination of custody?

Background

Defendant David Wissink and Plaintiff Jane Wissink were married and have a teenage daughter named Andrea, born on June 21, 1986. She is the biological child of the Jane and David. Jane also has a daughter, Karin, by a prior marriage. The parties have had a turbulent relationship marked by numerous episodes of physical violence, police intervention, and Family Court orders of protection. It is clear that David frequently battered Jane. However, he never directly mistreated Andrea, and Andrea favored him over her mother.

Published on: September 26, 2022

A custody agreement providing for a specific religious upbringing will be enforced only if it is in the best interests of the child. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017)

by Stephen Bilkis

In Weisberger, the Supreme Court was asked to enforce a religious upbringing clause in the parties’ separation agreement that required to the mother to practice full religious observance in accordance with the Hasidic practices or be relegated to supervised therapeutic visitation.

Background

Plaintiff Naftali Weisberger and Defendant Chava Weisberger married in 2002 and divorced I 2009. They had 3 children. In a stipulation of settlement dated November 3, 2008, the parties agreed to joint legal custody of the children with the mother having primary residential custody. They agreed that the father’s visitation with the children would consist of a two-hour period once per week after school; overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays. The stipulation also contained a religious upbringing clause that the children would be raised Hasidic and that Naftali would choose the children’s school. It further provided that Naftali would pay child support. However, Naftali never paid child support and did not fully exercise his visitation rights.