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Court Maintains that Modification of Custody Must Benefit the Child


On 1 September 2009, a Family Court in Kings County issued an order which, after a hearing, in effect, granted the father’s petition to modify a prior custody order of the same court dated 3 August 2004, so as to award him sole legal and physical custody of the subject child with visitation to the mother; denied the mother’s petition for sole legal and physical custody of the subject child, and denied her application to relocate with the subject child to Newburgh, New York. Thus, a New York Family Lawyer said in related child custody proceedings pursuant to Family Court Act Article 6, the mother appeals from the said order.

The court finds that the order must be affirmed, without costs or disbursements.

Under the rules, a relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child. A New York Custody Lawyer said the best interests of the child are determined by a review of the totality of the circumstances. Deference should be accorded to the credibility determinations of the hearing court, which saw and heard the witnesses, and the hearing court’s determination should not be set aside unless it lacks a sound and substantial basis in the record.

Here, the Family Court considered the appropriate factors in determining that it was not in the child’s best interests to relocate with the mother to Newburgh. The Family Court’s determination that the father satisfied his burden of demonstrating that there existed a change of circumstances warranting a change of custody is supported by a sound and substantial basis in the record. A Nassau County Family Lawyer said the evidence presented at the hearing established, among other things, that the mother interfered with the father’s visitation rights and failed to inform the father of important matters regarding the child, such as her proposed impending relocation with the child to Newburgh and her unilateral decisions regarding the child’s schooling. Thus, the court finds it proper to decline to disturb the Family Court’s determination.

Second Case:

On or about 11 December 2009, a Family Court in Bronx County issued an order which, upon a finding of permanent neglect, terminated respondent mother’s parental rights to the subject child and committed the custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children’s Services for the purpose of adoption. An appeal thereafter followed.

The court finds that the order must be affirmed, without costs.

Here, the court finds that the Family Court’s determination that the mother permanently neglected the child was supported by clear and convincing evidence. The record is replete with clear and convincing evidence that the agency exercised diligent efforts to strengthen the mother’s relationship with the child. A Nassau County Custody Lawyer said whose efforts included, among other things, furnishing the mother with a service plan tailored to her individualized needs and diligently fostering her reunification with the child by providing her with visitation, notice of the child’s medical appointments, and referrals to various support and treatment programs. The service plan required, among other things, that the mother complete a drug rehabilitation program and attend a CPR course for the child’s special needs. However, the efforts were exercised to no avail. The mother’s recalcitrance was palpably demonstrated by the undisputed evidence that she failed to complete either program during the statutory period and failed to comply with random drug tests as required by the service plan. Clearly, this shows that the mother substantially and continuously or repeatedly failed to plan for the future of the child. Moreover, a preponderance of the evidence demonstrates that the child’s best interests are served by terminating the mother’s parental rights. The child has been living with his foster mother, who is his paternal aunt, since 2006. The foster mother has provided the child with a safe and nurturing home, and the evidence indicates that she is attentive to the child’s medical needs. In contrast, the mother admittedly failed to complete a drug rehabilitation program during the statutory period as well as a CPR training course, which could have been completed in a single day. In addition, the mother’s request for a suspended judgment is unpreserved. Notwithstanding this, suspended judgment would not be warranted in light of the mother’s testimony that her drug use never threatened the child’s safety. This demonstrates the mother’s failure to appreciate the gravity of her shortcomings and further substantiates that freeing the child for adoption was in his best interests.

A New York Family Attorney at Stephen Bilkis & Associates is the legal counsel for you when it comes to cases like the above. Our legal professionals have been extensively trained and have participated in various trial litigations thereby acquiring exceptional skills and competence. Contact us now for a free consultation and speak with one of our New York Child Custody Attorneys or New York Child Adoption Attorneys.

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