Visitation

Published on: September 4, 2023

Father’s incarceration alone did not warrant denial of his visitation petition. Rodriquez v. Van Putten, 309 AD2d 807 (NY App. Div. 2d Dep’t 2003)

by Stephen Bilkis

Cases concerning child visitation present intricate legal landscapes. One such case, Rodriquez v. Van Putten (309 AD2d 807), sheds light on the delicate balance between a parent’s right to visitation and a child’s best interests. This Appellate Division case grapples with the implications of a father’s incarceration on visitation rights.

Taking a looking at New York’s general standard for visitation, the courts examine various factors to determine what’s in the child’s best interests are met. The child’s preferences and wishes, adjusted for their age and maturity, are taken into account. Another crucial factor is the nature of the existing relationship between the child and each parent, assessing emotional bonds and effective communication. Additionally, the overall mental, emotional, and physical well-being of each parent is evaluated to ensure they can provide a safe and nurturing environment for the child. Any history of abuse, neglect, or domestic violence is taken into serious consideration to ensure the child’s safety and well-being. Additionally, the parent’s work schedule, availability, criminal record, or any substance abuse issues are scrutinized to understand their ability to be present and responsible caregivers. Overall, New York courts aim to craft visitation schedules that prioritize the child’s growth, development, and happiness, aiming for an environment that fosters their well-being and positive future.

Background

Published on: August 9, 2023

Court refused to allow father who was convicted for child rape to have visitation with his child. Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999)

by Stephen Bilkis

The “best interests of the child” is a paramount legal standard used in family law to guide decisions regarding custody, visitation, support, and other matters that directly affect children. Essentially, it mandates that any decision made by the court or involved parties must prioritize what is best for the child’s overall well-being, growth, and development.

The case of Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999), delves into a visitation proceeding with unique circumstances, shedding light on how the court navigates the complexities to determine what is in the best interests of the child.

When it comes to visitation, the court’s focus is firmly on ensuring the child’s welfare, emotional development, and stability throughout the visitation process. This means maintaining a consistent and stable visitation schedule that helps the child feel secure. The quality of the relationship between the child and the visiting parent is a critical factor, with a positive and strong bond being seen as beneficial for the child. Safety and well-being during visitation are paramount, so the court carefully examines the environment and the visiting parent’s ability to provide a nurturing and secure space. Additionally, the court assesses the parents’ fitness and capacity to provide a stable and loving environment during visitation.

Published on: August 7, 2023

Court determined that it was not in the best interests of the child to grant visitation to incarcerated petitioner. Rodriquez v. Van Putten, 309 AD2d 807 (NY App. Div. 2d Dep’t 2003)

by Stephen Bilkis

The principle of “best interests of the child” is a fundamental legal standard used in family law to guide decisions regarding child custody, visitation, support, and other matters that impact a child’s well-being. It is a paramount consideration meant to ensure the child’s overall welfare and development take precedence over the desires or interests of the parents or other parties involved.

In essence, determining the best interests of the child involves a thorough assessment of various factors. These can include the child’s age, physical and mental health, educational needs, established routines, relationships with each parent, and any history of domestic violence or substance abuse within the family.

Judicial decisions are made with the aim of promoting stability, security, and continuity in the child’s life, ensuring they maintain meaningful and consistent relationships with both parents when possible. The court strives to create an environment that encourages the child’s growth emotionally, physically, intellectually, and morally.

Published on: November 21, 2022

Court was asked to intervene when the mother and grandmother limited father’s access to child. Marvin F. v. Jaran H., 73 Misc. 3d 1222, 155 N.Y.S.3d 305 (N.Y. Cnty. Ct. 2021)

by Stephen Bilkis

In this case, the court was asked to intervene when the child’s maternal grandmother appeared to influence the amount of parental access the mother gave the father.

Background

The mother and father were not married when they had a child together. The father was very involved in the child’s life during the first few months of the child’s life. He would see the child three or four times a week in the morning prior to going to work, in the evenings and on the weekends. The mother showed that she was committed to helping ensure that the father was involved and understood how to care for the child. Things changed when the mother’s mother moved in with her to help care of the child. The grandmother became the child’s paid babysitter. The father’s access to the child became increasing limited.

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 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: 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 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.