New York Family Law Blog

Published on: December 4, 2023

Court considered whether a custody modification was warranted. A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

A Lincoln hearing, named after a court case, is a process where the judge interviews a child privately to understand their preferences regarding custody or visitation. The purpose is to consider the child’s viewpoint without parental influence when making decisions about their welfare. The hearing allows the judge to gather information directly from the child to help determine what arrangement would be in their best interests. It ensures the child’s voice is heard in court proceedings involving custody and visitation disputes.

In A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023), a contentious child custody case, testimony elicited during a Lincoln hearing was used to help the court determine the custody arrangement. The initial custody arrangement granted the mother primary custody of the child, with the father having visitation rights.

Background facts

Published on: November 15, 2023

Father was unable to rebut presumption that he willful violated a child support order. Movsovich v. Wood, 178 A.D.3d 1441 (N.Y. App. Div. 2019).

by Stephen Bilkis

The case of Movsovich v. Wood, a Family Court Act article 4 proceeding, addresses issues related to child support enforcement. The respondent appeals a decision that addressed the willful violation of a child support order and its consequences.

In New York, prima facie evidence of a willful violation of a child support order arises when there is a presumption that a respondent has sufficient means to support their minor children, and there is evidence demonstrating a failure to pay support as ordered. This presumption is codified n Family Court Act § 454(3)(a). When the party receiving child support presents evidence that the respondent has not complied with the court-ordered support obligations, it creates a prima facie case of willful violation.

Once the custodial parent establishes this prima facie case, the burden shifts to the noncustodial parent (the respondent) to provide credible and competent evidence demonstrating an inability to make the required support payments. The noncustodial parent must present evidence showing reasonable efforts to obtain gainful employment or any other circumstances that might hinder their ability to meet the support obligation.

Published on: November 13, 2023

Court decided that limitation visitation for incarcerated parent was reasonable. Smith v. Smith, 92 A.D.3d 791 (2012)

by Stephen Bilkis

What happens to parental rights when a parent is incarcerated in New York state. Generally, parents retain their parental rights, including the right to visitation. However, the caveat, is that every decision that a New York court makes with respects to children is guided by what is deemed to be in the best interests of the child. In New York, the principle of “best interests of the child” serves as a foundational guideline for courts in determining custody and visitation arrangements.

In New York, this standard considers various factors, including the child’s physical and emotional health, the stability of each parent’s living environment, and the ability of parents to meet the child’s needs. Ultimately, the court aims to make decisions that promote the child’s

When applied to incarcerated parents, the “best interests of the child” standard takes into account a range of factors unique to the circumstances of parental incarceration. Courts typically consider the length of the sentence, the nature of the offense, the potential impact on the child’s emotional well-being, and the practical challenges associated with maintaining a relationship. While parental incarceration alone does not automatically preclude visitation, the court assesses whether such visitation might be detrimental to the child and may impose conditions such as supervised visitation or limitations based on logistical constraints. The overarching goal remains to strike a balance between maintaining the child’s connection with the incarcerated parent and ensuring their overall welfare and stability.

Published on: November 8, 2023

Family Court Denied Incarcerated Mother Visitation. YYW v. Z.G. 74 Misc. 3d 1206, (2022)

by Stephen Bilkis

In the case of YYW v. Z.G. 74 Misc. 3d 1206 (2022), the Family Court considered a case where the petitioner sought visitation of one of her children. However, the petitioner was incarcerated. She had been convicted for severely abusing her child while she was pregnant with another child. When making a decision related to custody of visitation such as a modification of an existing order, the Family Court always looks at what is the best interests of the child.

When seeking to modify a custody order, the Family Court carefully assesses several factors to ensure the child’s best interests are paramount. The petitioner must demonstrate a substantial change in circumstances that necessitates modification. This change need not be extraordinary but must unequivocally serve the child’s welfare. The court evaluates the stability of the child’s life, the fitness of each parent, and the prior custody award, taking into account the totality of circumstances before making any modifications to the existing custody order.

Here, the case is complicated not only by the fact that the petition is incarcerated, but the reason for her incarceration is relevant to the best interests of the child issue. The court must navigate the delicate balance between maintaining the child’s safety and acknowledging the parental rights of the incarcerated individual.

Published on: November 6, 2023

Appellate Court reversed Family Court custody modification decision due to failure to interview children. Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113 (N.Y. App. Div. 1990)

by Stephen Bilkis

Visitation disputes arising from divorce cases often cast a shadow on the lives of children caught in the crossfire. The case of Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113 (N.Y. App. Div. 1990), provides a poignant example of the complexities and challenges inherent in such legal battles.

Background

The Koppenhoefer case centers on Hans and Alicia, children of divorced parents entangled in visitation disputes since 1977. The divorce judgment, including a separation agreement, awarded custody to the mother while granting the father liberal visitation rights. Problems arose due to the lack of structure in visitation, prompting ongoing complaints from both parents. In 1982, Family Court modified the visitation terms, setting specific hours for weekends and midweek visits. Alimony was terminated, and child support increased to $105 per week.

Published on: November 1, 2023

Incarcerated father denied visitation. In the Matter of Marcial v. Sullivan, 296 A.D.2d 551 (N.Y. App. Div. 2002)

by Stephen Bilkis

In the Matter of Marcial v. Sullivan the Family Court, Kings County, was tasked with weighing the delicate balance between a father’s desire for visitation and the welfare of his two children. The case, decided in 2002, sheds light on the nuanced considerations that come into play when a parent seeks visitation while facing incarceration.

In New York, incarcerated parents retain the right to seek visitation with their children, underscoring the importance of maintaining family connections. However, the overarching principle guiding such cases is the paramount consideration of the child’s best interests. While imprisonment alone doesn’t preclude visitation, courts carefully evaluate individual circumstances. Factors such as the nature of the parent-child relationship, the child’s age, and any potential risks are weighed to ensure that visitation aligns with the child’s well-being. This nuanced approach acknowledges the significance of maintaining parental ties even in challenging situations but emphasizes that these rights are subject to the ultimate goal of safeguarding the child’s welfare.

Background

Published on: October 30, 2023

Appellate Division determined that increased visitation with incarcerated father was not in the best interests of the child. In re Davis, 232 A.D.2d 773 (N.Y. App. Div. 1996)

by Stephen Bilkis

In the case of In re Davis (1996) the Appellate Division was asked to review a case involving parental visitation rights when where one parent is incarcerated. In New York, parental incarceration alone does not automatically preclude visitation rights, emphasizing the overarching principle that the best interests of the child remain paramount. Courts weigh various factors, including the nature of the incarceration setting, the distance involved, and the potential impact on the child’s well-being. While visitation may be deemed appropriate, the frequency and conditions are meticulously assessed to align with the child’s welfare. The case law underscores the need for a careful balance between a parent’s desire for visitation and the child’s best interests, ensuring a nuanced approach to each situation.

Background

In re Davis centers on a visitation dispute between parents who divorced in 1993 and share one child born in 1992. The mother was granted sole custody with no provision for visitation by the father. The father, incarcerated for the majority of the child’s life, was serving a prison term of 6 to 12 years at Gouverneur Correctional Facility in St. Lawrence County.

Published on: October 25, 2023

Mother’s request to modify in-person access to her children was denied. Khan v. Schwartz, 201 A.D.3d 718 (N.Y. App. Div. 2022)

by Stephen Bilkis

Khan v. Schwartz, 201 A.D.3d 718 (N.Y. App. Div. 2022), involves a child custody dispute where the mother seeks to modify the in-person parental access provisions of a prior order that granted sole legal and physical custody of the children to the father.

In New York, the legal standard for granting sole custody involves a thorough consideration of the child’s best interests. Courts evaluate various factors to determine custody arrangements, and the overarching principle is to ensure the child’s well-being and safety. Factors considered include the parents’ ability to provide a stable home environment, the child’s relationship with each parent, any history of abuse or neglect, and the physical and mental health of all parties involved. The court may also consider the child’s preferences, particularly as they mature.

The standard is not based on a presumption in favor of either parent but on an assessment of the totality of circumstances. The goal is to create a custody arrangement that fosters the child’s emotional and physical development while maintaining a meaningful relationship with both parents whenever possible. Ultimately, the court’s decision aims to serve the child’s best interests, and it may order sole custody to one parent if it determines that such an arrangement is most conducive to the child’s overall welfare.

Published on: October 23, 2023

Court denied mother’s request for father to have professional supervised visits by father. Paul v. Donna, 175 A.D.2d 236, (N.Y. App. Div. 1991)

by Stephen Bilkis

In New York, the standard for supervised visitation involves assessing whether unsupervised visitation would be detrimental to the child. Generally, a noncustodial parent is presumed to have reasonable rights of visitation, and the denial of those rights is considered a drastic remedy. The court may order supervised visitation if there is substantial evidence demonstrating that unsupervised visitation would be harmful to the child’s welfare. The court carefully weighs the best interests of the child against the noncustodial parent’s visitation rights, taking into account any allegations of misconduct or abuse. The decision may involve considering the input of professionals, such as social workers or psychologists, and the commitment of responsible individuals to supervise visitation adequately. The overarching principle is to strike a balance that ensures the child’s well-being while respecting the noncustodial parent’s rights.

The case of Paul v. Donna, decided by the New York Appellate Division in 1991, delves into the intricate balance between a noncustodial parent’s visitation rights and allegations of sexual abuse. The father appeals for supervised visitation with his two children after the mother accuses him of sexually abusing their six-year-old daughter. The court’s decision revolves around the crucial determination of whether supervised visitation by the father’s blood relatives is an adequate safeguard against potential harm to the child.

Background

Published on: October 18, 2023

Father’s visitation reinstated after missing court date. Lemon v. Faison, 150 A.D.3d 1003 (N.Y. App. Div. 2017)

by Stephen Bilkis

New York courts adhere to a comprehensive approach in determining custody and visitation arrangements. The paramount consideration is the best interests of the child, evaluated through a myriad of factors such as parental stability, financial well-being, and the ability to provide a nurturing environment. While the court aims to ensure both parents maintain a meaningful relationship with the child, it prioritizes the child’s safety and well-being. The process often involves fact-finding hearings, and the court may opt for a plenary hearing or demand clear articulation of factors influencing its decision. The overarching goal is to make determinations founded on a thorough assessment of the circumstances, promoting the child’s welfare.

The case of Lemon v. Faison, a 2017 decision by the New York Appellate Division, delves into a family law dispute concerning visitation rights, custody, and an order of protection. It also involved a father attempted to re-establish a connection with his children after being incarcerated.

Re-establishing parental rights, specifically seeking custody or visitation, after being released from prison is a nuanced legal process. Courts generally consider factors such as the nature of the offense, the parent’s behavior post-release, and the best interests of the child. While completing rehabilitation programs and demonstrating a stable environment can bolster a parent’s case, the court’s primary concern is the child’s welfare. The level of involvement granted often depends on the court’s evaluation of the parent’s capacity to provide a safe and nurturing environment, balancing the parent’s rights with the child’s best interests.