New York Family Law Blog

Published on: August 26, 2024

Cohen v. Escabar 219 A.D.3d 726 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Cohen v. Escabar 219 A.D.3d 726 (N.Y. App. Div. 2023), Louis Escabar, a minor, appealed from an order of protection issued against him, dated June 28, 2021. The order stemmed from a family offense proceeding initiated by Jamie Cohen against her ex-boyfriend, Escabar.

An individual under the age of 18 is considered a minor or an infant in legal terms. When a minor is involved in a legal matter, they typically require representation by a parent, guardian, or a guardian ad litem appointed by the court. This representation ensures that the minor’s interests are adequately protected during legal proceedings.

If a minor does not have a parent or guardian available to represent them, the court may appoint a guardian ad litem to act on the minor’s behalf. A guardian ad litem is a person appointed by the court to represent the best interests of the minor and make decisions on their behalf during the legal process.

Published on: August 21, 2024

Celinda JJ. v. Adrian JJ. 2021 N.Y. Slip Op. 5900 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

When it comes to whether a parent will be permitted to relocate with a child, the court will make a determination as to to whether it is in the best interests of the child. While the case can become more complicated where a parent is incarcerated and grandparents oppose relocation, the inquiry is the same: What is the in best interests of the child.

Background Facts

Celinda JJ. v. Adrian JJ. 2021 N.Y. Slip Op. 5900 (N.Y. Sup. Ct. 2021) involves a mother and father with four children. The father was convicted of rape against the mother and another female, resulting in a 15-year prison sentence. Seeking permission to relocate to South Carolina, the mother initiated legal proceedings. In a separate case, the paternal grandmother’s request for custody and visitation was denied, granting the mother sole legal and primary physical custody. A hearing was set to consider the relocation petition.

Published on: August 19, 2024

Applicability of equitable estoppel in a paternity case. Danielle E.P. v. Christopher N., 2022 N.Y. Slip Op. 4841 (N.Y. App. Div. 2022)

by Stephen Bilkis

At the center of the case of Danielle E.P. v. Christopher N., 2022 N.Y. Slip Op. 4841 (N.Y. App. Div. 2022) is a child born in September 2016, whose biological father’s identity was at issue. The court was asked to determine whether the doctrine of equitable estoppel should be applied.

The doctrine of equitable estoppel operates to prevent a party from asserting a legal claim or right when it would be unjust or unfair to allow such assertion due to that party’s prior actions, representations, or silence. In the context of paternity proceedings, equitable estoppel may be invoked to preclude a mother from asserting the biological paternity of a child when she has fostered a close relationship between the child and another father figure and it would be detrimental to the child’s welfare to disrupt that relationship. Essentially, equitable estoppel aims to prevent injustice by preventing a party from taking advantage of their own conduct to the detriment of another party who has reasonably relied on that conduct.

Background Facts

Published on: August 15, 2024

Court addressed wasteful dissipation, granting husband $150,000 credit against wife’s marital property share. D’Ambra v. D’Ambra, 2024 N.Y. Slip Op. 1291 (N.Y. App. Div. 2024)

by Stephen Bilkis

In divorce cases, the division of marital property can raise disputes about fairness and accountability. In a recent case, the court addressed claims of wasteful dissipation of marital assets, which impacted the equitable distribution of property between the spouses.

Background Facts

The parties were married in January 2007 and shared a marital residence in Queens, New York, as well as a rental property in Florida. The plaintiff paid all marital expenses while the defendant did not earn an income during the marriage. The couple had no children together, but the defendant’s adult son from a previous relationship lived with them starting in 2011.

Published on: August 14, 2024

Petition to terminate spousal maintenance. Makris v. Makris 179 A.D.3d 694 (N.Y. App. Div. 2020)

by Stephen Bilkis

Makris v. Makris, 179 A.D.3d 694 (N.Y. App. Div. 2020) is about divorce and maintenance obligations. Spousal maintenance in New York can be terminated under specific conditions defined by state law. One such circumstance is if the recipient spouse remarries, as the obligation to pay maintenance typically ceases upon remarriage. Similarly, the death of either the paying or receiving spouse automatically terminates the maintenance obligation.

Another scenario for termination is if it can be demonstrated that the recipient spouse is self-sufficient or no longer requires financial support. This could result from a significant increase in the recipient spouse’s income or assets, rendering them financially independent. Conversely, if the paying spouse experiences a substantial decrease in income or faces financial hardship, they may petition the court to terminate or modify the maintenance obligation.

Additionally, if there is a significant change in circumstances since the maintenance order was issued, such as a disability affecting either spouse’s ability to work, the court may consider terminating or modifying the maintenance arrangement. Cohabitation by the recipient spouse with a new partner in a relationship similar to marriage may also prompt termination of maintenance, as it suggests the recipient no longer requires financial support.

Published on: August 12, 2024

Court considered whether a reduction in maintenance was warranted on the basis of hardship. Valvo v. Valvo 218 A.D.3d 909 (N.Y. App. Div. 2023)

by Stephen Bilkis

Valvo v. Valvo, 218 A.D.3d 909 (N.Y. App. Div. 2023) involves an appeal from the Family Court of Saratoga County regarding a petition to modify maintenance and child support obligations. The dispute arises from a divorce between the petitioner (referred to as the father) and the respondent (referred to as the mother) in 2012.

In New York, Family Court will grant a downward modification in child support only under limited circumstances as follows:

Financial Hardship: One of the most common reasons for seeking a reduction in child support payments is a significant change in the financial circumstances of one or both parents. For example, if the non-custodial parent experiences a loss of income, such as unemployment or disability, they may petition the court for a reduction in child support payments. However, it’s essential to demonstrate that the loss of income is involuntary and not due to willful neglect or avoidance of child support obligations.

Published on: August 8, 2024

Court determined the “home state” under UCCJEA. M.G. v. C.M. 61 N.Y.S.3d 191 (N.Y. Sup. Ct. 2017)

by Stephen Bilkis

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a legal framework adopted by most states in the United States to provide clarity and consistency in child custody jurisdiction matters across state lines. It aims to prevent jurisdictional disputes and forum shopping, ensuring that custody determinations are made in the state that is most appropriate and connected to the child and the family.

Under the UCCJEA, the concept of “home state” is crucial in determining which state has jurisdiction over child custody matters. The “home state” is defined as the state where the child has lived with a parent (or a person acting as a parent) for a consecutive six-month period immediately before the commencement of a child custody proceeding. If the child is less than six months old, the “home state” is the state where the child has lived since birth.

When multiple states are involved in a custody dispute, the UCCJEA provides guidelines for determining which state has jurisdiction. Generally, the state that qualifies as the child’s “home state” will have primary jurisdiction over custody matters. However, if no state meets the criteria of being the child’s “home state,” the UCCJEA outlines other bases for jurisdiction, such as significant connections with the child or the child’s family, emergency circumstances, or whether no other state has jurisdiction.

Published on: August 7, 2024

Court considered whether the consent of the father was required for adoption. In re J’adore. E. 2020 N.Y. Slip Op. 6788 (N.Y. App. Div. 2020)

by Stephen Bilkis

In a Family Court case in Queens County, the father contested an adoption proceeding initiated by the maternal grandparents of the subject child. The court had to determine whether the father’s consent was necessary for the adoption and whether he had effectively abandoned the child.

Background Facts

The child in question was born in May 2009, losing their mother shortly after birth. Following this loss, the child’s maternal grandparents took on the responsibility of caring for them. From August 2016 onwards, the child lived with the grandparents, who agreed to raise them as their own.

Published on: August 5, 2024

Mother challenges modification to custody order. Turkashwand v. Brock, 189 A.D.3d 1428 (N.Y. App. Div. 2020)

by Stephen Bilkis

Turkashwand v. Brock, 189 A.D.3d 1428 (N.Y. App. Div. 2020) was a case from Nassau County, New York, which involved modifications to custody and parental access. The case addresses an appeal by the mother against several Family Court orders concerning her custodial rights and the allegations against the father.

To modify an existing custody order, a court must find that there has been a substantial change in circumstances since the last order was issued. This standard ensures that the court only revisits custody arrangements when necessary to serve the best interests of the child. The rationale behind requiring a change in circumstances is to provide stability and continuity for the child, avoiding frequent and potentially disruptive changes in their living situation.

In Turkashwand v. Brock, there were allegations of parental alienation. Parental alienation can be a compelling reason for modifying custody because it directly impacts the child’s well-being and their relationship with both parents. Parental alienation involves one parent’s actions that deliberately undermine the child’s relationship with the other parent. This can include speaking negatively about the other parent to the child, limiting contact, or otherwise manipulating the child’s perceptions, resulting in estrangement from the alienated parent.

Published on: August 3, 2024

Court upheld denial of motion to vacate order of protection due to lack of meritorious defense evidence. Thompson-Richmond v. Perez, 157 A.D.3d 801 (N.Y. App. Div. 2018)

by Stephen Bilkis

In family law cases, orders of protection play a critical role in ensuring the safety and well-being of individuals. The case of Thompson-Richmond v. Perez, 157 A.D.3d 801 (N.Y. App. Div. 2018) demonstrates how the courts evaluate motions to vacate default orders of protection.

Vacating an order of protection in New York involves asking the court to cancel or set aside an order that was previously issued. A party can request this under specific circumstances, such as proving they were not properly notified of the court proceedings, providing a reasonable excuse for failing to appear, or showing a significant change in circumstances. The party must also present a potentially meritorious defense or reason why the order should no longer be in effect. Courts assess these requests carefully, balancing the petitioner’s rights with the safety and well-being of the protected individual.

Background Facts