Custody

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.

Published on: September 26, 2022

In a tri-custody case, the Supreme Court, Suffolk County, considered whether a de facto third parent establish legal custody rights. Dawn M. v. Michael M., 47 N.Y.S.3d 898 (2017)

by Stephen Bilkis

With the increasing number of people involved in polyamorous relationships, it is not surprising for the issue of child custody to develop where there are three individuals are in the household raising the child. In Dawn M. v. Michael M., a husband (biological father), his wife, and another woman (biological mother)—decided to conceive and raise a child and the three parties lived together as a family for the first eighteen months of the child’s life. Some time after the husband wife divorced, the ex-wife, who was not the child’s biological mother, became concerned about her legal rights with respect to child custody.

Background

Plaintiff Dawn M. and Defendant Michael M. married in 1994. They tried unsuccessfully to have a child. Dawn became close friends with Audria, and in 2004 Audria moved in with the couple. The three began having three-way sexual relations. As time went on, Audria, Dawn, and Michael began to consider themselves a “family” and decided to have a child together. In 2007 the child was born. Dawn and Audria shared maternal responsibilities. The child called both Dawn and Audria “mommy” and considered both women as his mother.

Published on: September 21, 2022

New York Supreme Court discussed the concept of zones of final decision-making authority in point custody situations. J.R. v. M.S., 55 N.Y.S.3d 873 (2017)

by Stephen Bilkis

Child-rearing decisions are often challenging when couples divorce or otherwise end their romantic relationship. In some cases, there is so much animosity between parents that they are unable to effectively communicate with respect to the needs of the child. In J.R. v. M.S., the New York Supreme Court was asked to decide on the custody arrangement where they had a history of having trouble working together to make certain child-rearing decisions.

Background

The parties were married in 1999. There were tensions throughout their marriage and the tensions intensified after the birth of their only child in 2007. In 2013, the father revealed he had an affair and the couple separated. In January 2014, the father filed for divorce. In September 2014, the parties entered into an agreement setting forth an interim parental access schedule. For the next two years, the parties attempted to agree on a parenting plan. There were countless settlement conferences and numerous draft agreements. Ultimately, the parties were unable to reach a compromise.

Published on: September 19, 2022

Appellate Division determined that child support payments may be suspended if the custodial parent unjustifiably prevented access to the child. Usack v. Usack, 17 A.D.3d 736 (N.Y. App. Div. 2005)

by Stephen Bilkis

Generally, child support and custody are two different issues. Parental access is not based on the amount of child support is paid or whether it is paid on time or is in arrears. This means that a parent who has been ordered to pay chid support cannot stop paying child support simply because they have not had access to the child. In Usack v. Usack, the Appellate Division was asked to review this general rule in circumstances where the custodial parent intentionally prevents the non-custodial, child support paying parent access.

Background

Plaintiff James Usack and Defendant Linda Usack were married for 20 years and had three children. Linda had a good relationship with the children. After Linda had an affair with another man, James filed for divorce. James told the children about the affair, and from that point on, the children’s relationship with Linda was strained. The Supreme Court of New York granted James custody of the children and ordered Linda to pay child support a portion of the uninsured medical expenses for all three children.

Published on: September 12, 2022

The ICWA is applicable to the adoption of a Native American child even if the child’s Native American parents do not participate in tribal life. In re Baby Boy C., 805 N.Y.S.2d 313 (2005)

by Stephen Bilkis

The Indian Child Welfare Act of 1978 (ICWA) was enacted in response to practices that separated large numbers of Native American children from their families and tribe. See 25 USC § 1901 et seq. It is common for representatives from the relevant Indian tribe to intervene in child custody proceedings involving Indian children. The ICWA established certain placement preferences for Indian children who, as in the case of In re Baby Boy C., are no longer in their parents’ custody.

Background

Defendant Rita C., a Native American member of the Tohono O’odham Nation tribe (Tribe), gave birth to Baby Boy C. in March 2004. The father, Justin W., was not Native American. Rita grew up in a tribal community but eventually left it and no longer participated in its political, social, and religious affairs. Her other children were not being raised in a tribal community.

Published on: September 5, 2022

Appellate Division found that a trial court cannot confirm a custody order that was determined by arbitration. Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (2009)

by Stephen Bilkis

In Schechter v. Schechter, the court considered whether a religious arbitration tribunal could determine child custody and whether the Supreme Court could then confirm the arbitration decision.

Background

David Schechter, the plaintiff and Wendy Zehava Schechter, the defendant entered into an agreement pursuant to which they agreed to arbitrate all marital issues between them before a rabbinical arbitration tribunal, the Bais Din. The Bais Din wrote a decision, awarding the parties joint custody of the couple’s 14-year-old daughter. David filed a motion to confirm the arbitration agreement before the Supreme Court, Nassau County, the appropriate trial court. Wendy consented to the trial court confirming the award with certain exceptions.

Published on: January 3, 2022

New York recognizes the same-sex of marriage validly entered into outside of New York. Beth R. v. Donna M., 853 N.Y.S.2d 501 (2008)

by Stephen Bilkis

At the time that this case was decided, New York did not recognize same sex marriage. The law changed on June 24, 2011. Before that time, it was common for same sex couples to get married outside of New York in jurisdictions that did recognize same sex marriage. Just like with any marriage, when same sex relationships dissolved, legal questions related to child custody and child support had to be resolved. In Beth R. v. Donna M., the Supreme Court of New York was asked to determine whether New York recognizes same sex marriages validity entered into outside of New York and what the rights and obligations are of the parties regarding child custody and child support.

Background

Plaintiff Beth R. and Defendant Donna M., both residents of New York, met in 1999 and soon thereafter entered into an intimate relationship. The moved in together in 2002. In 2003, Donna became pregnant through artificial insemination.

Published on: April 13, 2020

Despite Child’s Wishes, Non-Custodial Father Granted Visitation- Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 (N.Y. App. Div. 2020)

by Stephen Bilkis

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.

Published on: April 6, 2020

Appellate Division Reversed Family Court Decision Denying Mother’s Request for Visitation Modification- Matter of Jessica D. v Michael E.2020 NY Slip Op 02133 (N.Y. App. Div. 2020)

by Stephen Bilkis

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.

Published on: March 30, 2020

Change of Custody to Father Not in Children’s Best Interest Despite Alienation by Mother- Matter of Eddie S. v. Sylvia S., 2020 NY Slip Op 50296(U)

by Stephen Bilkis

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.