Visitation

Published on: May 17, 2023

Father failed to prove substantial change for custody modification. Matter of O’Brien v. O’Brien, 66 A.D.3d 1025 (2d Dep’t 2009)

by Stephen Bilkis

Child custody disputes can be emotionally charged and legally complex, particularly when one parent seeks to modify an existing custody order. In New York, custody orders are always subject to modification if there has been a substantial change in circumstances. However, a parent seeking modification must present sufficient evidence to demonstrate that a change in circumstances has occurred since the original custody order was entered. The change must be of such a nature that it affects the best interests of the child, and it must have occurred since the original order was entered.

Examples of changes that may warrant modification include a change in a parent’s living situation, a change in the child’s school or medical needs, or a change in the relationship between the child and each parent. The court will consider a variety of factors, including the child’s relationship with each parent, the ability of each parent to provide for the child’s needs, and the child’s own wishes, if he or she is of a suitable age and maturity. The best interests of the child are always paramount in custody disputes, and the court will consider all relevant factors when determining whether to modify a custody order. Proving that there has been a change in circumstances that warrants a modification can be challenging, as demonstrated in the case of Matter of O’Brien v. O’Brien, 66 A.D.3d 1025 (2d Dep’t 2009).

Factual Background

Published on: April 17, 2023

A person who is not a biological or adoptive parent of a child may still seek custody or visitation rights if they have an established “parent-child” relationship with the child. Matter of Debra H. v. Janice R., 14 N.Y.3d 576 (2010)

by Stephen Bilkis

In New York, same-sex couples were not allowed to marry until 2011. As a result, issues related to parental rights in same-sex relationships often had to be resolved through the court system. In recent years, the recognition and protection of same-sex parental rights has been a hotly contested issue. While progress has been made in some areas, legal obstacles still exist for many same-sex couples seeking to establish and protect their parental rights. The landmark case of Matter of Debra H. v. Janice R. was a significant victory for same-sex couples in New York. It affirmed the right of a non-biological parent in a same-sex relationship to seek custody and visitation rights for their child, even in cases where they are not married and have not legally adopted the child. This decision was a groundbreaking moment in the fight for same-sex parental rights and set an important precedent for future cases in New York and beyond.

Factual Background

Debra H. and Janice R. began a committed relationship in 1991 and decided to start a family together. They agreed that Janice would carry a child using donor insemination, and in 1995, their daughter was born. Debra and Janice raised the child together for several years until their relationship began to deteriorate. In 2001, Janice moved out of the home they shared with their daughter and filed for custody of the child.

Published on: April 12, 2023

Parents’ right to raise children outweighed grandparents’ right to visitation. Matter of Best v. Best, 70 A.D.3d 986 (3d Dep’t 2010)

by Stephen Bilkis

In New York State, grandparents have the right to petition for visitation with their grandchildren, but the circumstances in which they may do so are limited. The courts have established that the parental right to make decisions for their children is fundamental and must be protected, and that grandparent visitation rights may only be granted if it is in the best interests of the child. In the case of Matter of Best v. Best, 70 A.D.3d 986 (3d Dep’t 2010), the court considered the petition of grandparents who sought visitation with their grandchild, but were denied by the lower court.

Factual Background

In Matter of Best v. Best the grandparents sought visitation with their grandchild, who was born to their daughter out of wedlock. The daughter was initially granted sole custody of the child, but later shared custody with the child’s biological father. The grandparents had a close relationship with the child and had cared for her on numerous occasions, including overnight visits. However, when the relationship between the daughter and the child’s father deteriorated, the grandparents were cut off from contact with their grandchild.

Published on: April 10, 2023

Parents’ rights outweighed grandparents’ desire for visitation. Matter of Quesnell v. Ferrara, 26 A.D.3d 579 (2d Dep’t 2006)

by Stephen Bilkis

Grandparent visitation rights have been a contentious issue in family law. Grandparents can be a vital part of a child’s life, and New York State recognizes the importance of their role. However, grandparents seeking visitation rights with their grandchildren must navigate a complex legal landscape. Under New York law, parents generally have the right to make decisions about their children, including decisions about visitation. However, in certain circumstances, grandparents may be able to seek visitation rights. The courts will consider a variety of factors, including the relationship between the grandparents and the child, the reasons for the parents’ objection to visitation, and the best interests of the child. In Matter of Quesnell v. Ferrara the court was tasked with determining whether grandparents should be granted visitation rights with their grandchild.

Factual Background

The case involved a grandmother, Joan Quesnell, who sought visitation with her granddaughter, who was born to her son and his girlfriend, the child’s mother. The relationship between the grandmother and the child’s mother had become strained, and the mother eventually moved out of the grandmother’s home with the child.

Published on: April 5, 2023

Court determined that the best interests of the child outweighed the grandparents’ visitation rights. Matter of Emanuel S. v. Joseph E., 84 A.D.3d 1308 (3d Dep’t 2011)

by Stephen Bilkis

In the case of Matter of Emanuel S. v. Joseph E., the court addressed the issue of grandparent visitation rights. Grandparents play an important role in the lives of their grandchildren, and in some circumstances, they may seek visitation rights to maintain that relationship. In New York, grandparents have the legal right to seek visitation with their grandchildren under certain circumstances. However, the courts must balance the interests of the grandparents with the best interests of the child.

Factual Background

In Matter of Emanuel S. v. Joseph E., the grandmother sought visitation with her granddaughter. The grandmother had a pre-existing relationship with the child and had been a significant presence in the child’s life. She had babysat the child regularly, attended school events, and spent holidays and vacations with her. The grandmother also provided financial support to the child’s mother when she was unable to work due to medical issues.

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.