New York Family Law Blog

Published on: July 22, 2012

Court Considers Special Needs of Infant in Custody Battle

by Stephen Bilkis

The New York child custody laws are designed to ensure that the rights of the children are protected as related to visitation and custody. In general, a parent is not restricted from visitation with their children as long as they have not harmed the children or have been found to be an unfit parent based on some other action or neglect on their part. Even in most cases of child neglect, the court will typically encourage visitation between the children and the parents so that a positive relationship can be fostered between them.

When a divorce decree determines which parent that a child will reside with most of the time, they take into account many different factors. Among these factors, are how old the child is and the relationship that the child has with each parent. Historically, a very young child has been determined to be better off with its mother. However, in some cases, where the mother has been determined to be unfit, even a very young baby may be given over to the custody of its father to receive better care. The court makes these determinations based upon what is best for the child and not necessarily what is best for the parents. A New York Family Lawyer said the court places the needs of the child paramount to the needs of the parent. In one case, a father was granted full custody of a very small baby in the course of a divorce decree. The mother appealed the custody appointment because she was a fit mother and there was no legal reason to prevent her from being with her baby.

The courts reviewed the case and discovered that she was correct. It is not clear what the circumstances were that caused the initial trial court to find that the infant would be better off with her father, but the Supreme Court determined that the original trial court was in error. There was no evidence presented that demonstrated that the mother was unfit to handle the role of parenthood. Further, it is usually important to keep a mother and very young infant together for the welfare of the infant. An NYC Family Lawyer said the original trial court was from a foreign court and the Supreme Court who overturned the verdict determined that they had erred in their judgment of the situation. A child of tender years needs to be with its mother.

Published on: July 21, 2012

Court Discusses Custody Decision

by Stephen Bilkis

In order for a court to modify any order previously enacted by that court or another, the petitioner/complainant is responsible to demonstrate that there has been a significant change in circumstances that would warrant the court to take action to modify the agreement. A significant change is something more than just a desire to change the circumstances of the decree. For instance, if a custodial parent is arrested, it may be important to modify the elements of the decree to change the primary custody location to the non-custodial parent who is not incarcerated.

A New York Family Lawyer said there are many situations that can provoke a change in the circumstances enough to warrant a finding to change the decree. The most common changes are those in residences. When two parents share custody of a child and they both reside in close proximity, things usually go fairly smoothly. However, if one of those parents move to a different state, the other parent is likely to file for a change in the original decree based on a significant change in circumstances. Sharing custody of a child locally is easy. Sharing custody of a child from different states can often pose a financial hardship to the parents involved in a significant manner. It then falls to the court to determine what if any changes need to be made to the original divorce decree to accommodate the changes in life situations.

When a custodial parent loses a job and source of income so that they are unable or unwilling to support the child on their own, the family may resort to a change in the custody arrangement through the court system in order for the child to reside with the parent who is most capable of caring for them. Severe illness of one parent can also be taken into consideration as a change of situation significant enough to cause the court to act on changing the original court ordered decree.

Published on: July 20, 2012

visitation

by Stephen Bilkis

Divorce creates many situations within a family that cause difficulties. In New York, the goal of the court system is to ensure that the children do not suffer because of the conflict between the parents. A New York Family Lawyer said no matter how much a court system may attempt to ensure that the children do not suffer from the stresses of the parents, it is impossible to achieve this goal entirely. In many cases, the parents do not stay in New York and one may move to a different jurisdiction. When this happens, the parents along with the court must decide if they are in a position to continue to handle the court issues of visitation and support through the New York court system.

One case from 1999, concerned the ongoing issues of a family going back more than ten years before the case was discussed in New York Family Court. The couple were married in Buffalo, New York on June 21, 1987. In 1988 and 1990, they brought two children into their marriage. The couple resided in New York City and Long Island while they both attended college. Toward the end of their marriage, they moved to Hamilton, Massachusetts. They were separated on December 21, 1993, and divorced in 1995. The couple agreed that the children would live with their mother in the family home in Massachusetts and the father moved to a townhouse near the home. In 1995, the mother moved to Buffalo, New York with the two children. The couple agreed that the Massachusetts Family Court would continue to have jurisdiction over the divorce decree and the continuing issues of visitation and support with the children. However, as both parents moved on with new families of their own, additional issues have arisen.

The final divorce decree created in Massachusetts allowed that the children were the full custody of the mother with the father being allowed liberal visitation. However, the father remarried and began a new life with his new wife and stepdaughter in Ipswich, Massachusetts. The mother met a man in New York and later moved with him and the two children from her previous marriage to Oregon. The father at that time filed for the children to rejoin him in Massachusetts. The issue of the court became a situation in which the father stated that he was being expected to spend too much money visiting the children in Oregon, or having the children flown out to visit him in Massachusetts. A Queens Family Lawyer said the case was brought before the New York Family Court in which they agreed with the father and ordered that the child support payments that the father was ordered by the Massachusetts Court to make, should be put into a separate banking account and used to pay for the expenses of visitation and plane fare. The mother filed an appeal.

Published on: June 28, 2012

Court Discusses the Rights of a Non-Marital Parent

by Stephen Bilkis

On October 15, 1999, a child was born between the petitioner mother and respondent father. The respondent father acknowledged his paternity and his name was placed on child’s birth certificate. A New York Family Lawyer said the respondent visited regularly and contributed to the child’s support for 18 months. However, the parties never married or lived together because respondent has a family of his own. Accordingly, in the spring 2001, the parties’ relationship ended, although respondent continued to call the petitioner to discuss the child during the months that followed. During the years that follow, respondent father did not visit nor give support to the child.

The mother then met and married her current husband. The mother moved out of her apartment but submitted a change of address notification form to the United States Post Office. She changed her home telephone number but kept the same cell phone number, the same job, the same work address and the same telephone number at work. The mother notified her landlord about her move.

Thereafter, the respondent father received a notice from the petitioner mother’s intent for stepparent adoption. Respondent father filed a petition seeking visitation rights and opposed the adoption. In his petition, respondent alleged that he did everything for the child. On 2006, the petitioner mother and her husband filed a stepparent adoption.

Published on: June 27, 2012

Court Decides Child Custody Arrangement

by Stephen Bilkis

The Domestic Relations Law sec. 240(1) provides that the trial court’s award of child custody must be made as justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child, noting that in all cases there shall be no prima facie right to the custody of the child in either parent. However, a New York Family Lawyer said an appellate court would be seriously remiss if it allowed a custody determination to stand where it lacked a sound and substantial basis in the record and, indeed, was contrary to the weight of the credible evidence.

The plaintiff wife and defendant husband were married in 1974 while attending nursing school and medical school, respectively. During their marriage, they had twin daughters whose custody has been the subject of this action. The record established that in 1982, the husband established his private practice in pediatrics and his income grew steadily thereafter. The wife in 1983 became a nurse investigator for a law firm which entails more flexible hours.

During the trial, the court requested psychiatric evaluation of all family members, as well as the evaluation by the Nassau County Probation Department. A New York Criminal Lawyer said the evaluation specifically recommended that the wife be granted custody of children. However, the Supreme Court awarded the twin daughter’s custody to the defendant husband. The Court concluded that the wife has been more or less a ‘remote control’ mother, having an interest in her children’s welfare, but leaving the actual rearing, at this point in their lives, to the father and a housekeeper. The Supreme Court based its findings with the record that reveals that the wife’s hours spent in pursuit of a career outside the home are decidedly fewer and more flexible than those spent by the husband.

Published on: June 26, 2012

Ex-Wife Seeks to Relocate Children to Different State

by Stephen Bilkis

On this proceeding, a husband filed an appeal from an order of the court upon a motion by the wife for permission to relocate with the child to the State of Virginia and his motion to enjoin her relocation and to change custody, however, denied his application for an in-camera interview between the court and the child. A New York Family Lawyer said the man also appealed from the orders of the same court which denied his motion to enjoin the former wife from relocating with the child and for the transfer of child custody to him. He also appealed for the granted motion of the court for his wife for permission to relocate and the awarded custody of the child to the mother and from the awarded counsel fees and expenses to the wife.

The parties were married and filed for their divorced. They had one son and their separation agreement provided for joint custody with each having physical custody of the child during alternating weeks, until the child’s fifth birthday or until he enters kindergarten. Thereafter and for the next three years, the mother was to have weekday custody of the child during the school year and the father was to have custody every weekend. A Nassau County Family Lawyer said that after the child’s eighth birthday or when he entered the third grade, the custody arrangement would be reversed in which the father would have weekday custody during the school year and the mother having custody on the weekends. During the summers, the parent with weekday custody would have custody on the weekends and vice versa.

Moreover, the separation agreement also provided that in the event that such a move becomes necessary, either parent shall have the absolute right to relocate out of New York State to another geographical area, including, but not limited to Boston or Washington, so long as the new residence of that parent is within a one hour direct flight time to or from New York, exclusive of ground travel, plus one hour of ground travel to or from each airport and the residence of each parent, without causing a modification of the custody provisions.

Published on: June 25, 2012

Plaintiff Claims Order for Protection was Violated

by Stephen Bilkis

In consolidated proceedings in accordance with the Family Court Act articles 6 and 8, the man appeals, as limited by his brief, from stated portions of an order of the Family Court which, among other things, adjudged him to be in violation of an order of protection and sentenced him to 15 days of incarceration in the Nassau County Correctional Facility, and as limited by his brief, from so much of an order of the same court, as denied his application for sole child custody of the couple, or alternatively, increased visitation.

A New York Family Lawyer said Article 6 of the Family Court Act has the authority to make initial child custody and visitation awards. It also may modify existing orders, unless a judgment of divorce retains sole jurisdiction to the Supreme Court. While Article 6 of the Family Court Act gives Family Court jurisdiction over child custody, the substantive law of child custody remains embodied in case law.

Article 6 further confers the Family Court jurisdiction over guardianship proceedings. The Surrogate’s Court has concurrent jurisdiction for guardianship, and Family Court can grant only guardianship of the person, while Surrogate’s Court can grant guardianship of the person and guardianship of the property.

Published on: June 24, 2012

Court Discusses Modification of Visitation Schedule

by Stephen Bilkis

A married couple who resided in New York filed for a divorce and was granted a decree of divorce in January 18, 1980. The decree or divorce granted the custody of their common child to the wife while giving the husband a visitation schedule.

A New York Family Lawyer said the father took full advantage of his visitation rights and cultivated a good relationship with their daughter despite the divorce. The child also began a close relationship with her grandparents on her mother’s and father’s side.

Sometime in 1987, the mother applied for a modification of the visitation schedule in the divorce decree. The mother claimed that she has obtained employment in Tennessee and would like to relocate there with her child.

Published on: June 22, 2012

Does Re-Marriage Justify Change in Custody?

by Stephen Bilkis

A couple was married in New York sometime on April 7, 1979. They had a daughter who was born on November 28, 1980. A New York Family Lawyer said tht two years after their daughter was born, the woman sought a divorce from her husband. The woman was granted custody of the child while the divorce case was being heard.

In February 24, 1983, the mother and father made oral stipulations where the parties agreed that their daughter will remain with the mother and the father will have liberal visitation rights.

The order of divorce was honored by the mother and the father except for some instances when the mother took her daughter to the Bahamas for a vacation in 1985. A New York Custody Lawyer said while on vacation there, the mother met a Canadian who was also divorced and had two sons. The Canadian was a resident of Montreal where he had a business.

Published on: June 21, 2012

Court Determines Custody Dispute

by Stephen Bilkis

A married couple was having marital problems. The husband left his wife and his daughter when he left their apartment in May 1981. From that time, the wife had custody of their daughter.

A New York Family Lawyer said the wife continued to have custody over their child during the divorce proceedings she instituted against her husband when the family court granted her temporary custody over their child while her application for divorce was being heard. She asked to an order granting her custody over their child and for the payment of maintenance and child support.

During the course of the divorce proceedings, the husband also applied that instead of being given visitation rights, he be granted custody over their child. The only question before the family court then was who between the mother and the father should be given custody over their child.