New York Family Law Blog

Published on: January 29, 2024

Appellate Division upholds custody to the mother, orders hearing for visitation by incarcerated father. Bell v. Mays, 127 A.D.3d 1179 (N.Y. App. Div. 2015)

by Stephen Bilkis

In New York child custody cases, including those involving an incarcerated parent, the paramount consideration is the best interests of the child. The court considers factors such as the child’s safety, well-being, and overall welfare in determining custody arrangements, aiming to make decisions in the child’s best interests.

Background Facts

In 2002 the Family Court issued an order granting custody to the mother. An incident in December 2002 involved domestic violence, leading to criminal charges and a lengthy prison sentence for the father. The children, unfortunate witnesses to this event, experienced a severed paternal relationship.

Published on: January 22, 2024

Appellate Division considered whether supervised visitation aligned with the children’s best interests. Seeback v. Seeback, 14 N.Y.S.3d 494 (N.Y. App. Div. 2015)

by Stephen Bilkis

In Seeback v. Seeback, 14 N.Y.S.3d 494 (N.Y. App. Div. 2015), the Appellate Division considered whether supervised visitation was appropriate. Supervised visitation in New York is a structured arrangement facilitating parent-child interaction under the watchful eye of a designated supervisor. This setting ensures the safety and well-being of the child during visits, especially in circumstances where concerns about the noncustodial parent’s behavior or the child’s welfare exist. The supervisor, often a trained professional or a court-approved individual, oversees the visitation to prevent potential risks or conflicts. The goal is to provide a secure environment that allows the noncustodial parent to maintain a relationship with the child while addressing any underlying issues or concerns.

Supervised visitation may be court-ordered based on various factors such as a history of domestic violence, substance abuse, or other behaviors that could pose a risk to the child. The court determines the terms and conditions of the supervised visits, including the duration, location, and frequency. This arrangement prioritizes the child’s safety and best interests, allowing them to maintain contact with the noncustodial parent in a controlled and monitored setting. The ultimate aim is to support the child’s emotional well-being and ensure a positive and secure environment during the visitation process.

Background Facts

Published on: January 15, 2024

Court determined that support agreement did not cover food and shelter expenses. Horne v. Horne, 22 N.Y.2d 219 (N.Y. 1968)

by Stephen Bilkis

A separation agreement in New York is a legal document that outlines the terms and conditions agreed upon by spouses when they decide to live apart. It addresses matters such as division of assets, spousal support, child custody, and visitation. This contractual agreement allows couples to formalize their separation without pursuing immediate divorce proceedings. Once signed, it serves as a binding contract that both parties must adhere to. The separation agreement provides a structured framework for resolving key issues, facilitating a smoother separation process while minimizing potential conflicts and uncertainties.

In Horne v. Horne, a dispute developed over how to interpret the terms of the child support provisions of their separation agreement.

Background Facts

Published on: January 8, 2024

In a grandparents’ visitation case, the court removed the limitation on the duration of weekly video contact. Garcia v. Santana, 171 A.D.3d 1058 (N.Y. App. Div. 2019)

by Stephen Bilkis

Grandparent rights in New York are statutory and primarily governed by Domestic Relations Law § 72. This law grants grandparents the ability to petition the court for visitation with their grandchildren. However, such petitions are subject to the court’s determination of the child’s best interests. The court considers various factors, including the nature of the relationship between the grandparent and the child, the parents’ objections, and the overall impact on the child’s well-being.

The court’s decision on grandparent visitation is discretionary and aims to strike a balance between maintaining family connections and safeguarding the child’s best interests. Grandparents may seek visitation rights even if the child’s parents oppose, but the court’s decision is based on a thorough evaluation of relevant circumstances. It’s essential for grandparents navigating this legal process to understand that while they have the right to petition for visitation, the court ultimately determines whether such visitation is appropriate, taking into account the specific dynamics of each family and the child’s welfare.

This case involves a paternal grandmother’s petition for visitation rights with her grandchild under Domestic Relations Law § 72. The Family Court, after a hearing, granted limited visitation in the form of weekly video contact for a specified duration. The appeal questions the exercise of discretion by the court in determining the parameters of visitation.

Published on: January 4, 2024

Whether a petition for plenary guardianship should be granted. Matter of Eli T. 2018 NY Slip Op 28389

by Stephen Bilkis

Guardianship in New York involves a legal arrangement where someone, known as a guardian, is appointed to make decisions on behalf of an individual who is unable to make decisions independently. This often arises in situations where the person, called the ward, faces challenges due to age, disability, or other incapacitating factors.

For adults, guardianship typically comes into play when an individual is deemed incapable of managing their personal and financial affairs. This could be due to intellectual disabilities, mental health issues, or other conditions that hinder their decision-making abilities.

In contrast, guardianship for children involves a legal relationship where an adult is appointed to care for and make decisions for a minor. This might happen when parents are unable to fulfill their parental responsibilities, either due to incapacity, death, or other circumstances.

Published on: December 26, 2023

Family Court considered a custody case involving multiple states. Chester HH. v. Angela GG., 2023 N.Y. Slip Op. 23204 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

In custody issues involving multiple states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdictional determinations. The UCCJEA establishes guidelines for determining which state’s court has jurisdiction over the custody matter. Typically, the “home state” where the child has lived for a significant period holds jurisdiction. If a court determines that another state has jurisdiction, it may defer to that state’s authority. The goal is to promote consistency and avoid conflicting custody orders between states, ensuring the child’s best interests are prioritized across jurisdictions.

Background Facts

Chester HH. and Angela GG. share joint legal custody of their child, with Angela having sole physical custody in Michigan. However, a significant event occurred when Chester, residing in New York, brought the child to his home for a visit. During this time, troubling allegations emerged, suggesting neglect and abuse while the child was under Angela’s care in Michigan.

Published on: December 20, 2023

In re Aisha R., 2023 N.Y. Slip Op. 23174 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Neglect, as defined under Article 10 of the Family Court Act, refers to a failure to provide proper care for a child. This can include a lack of food, clothing, shelter, medical care, education, or supervision necessary for the child’s well-being. Neglect can also involve exposing a child to conditions or environments that may harm their physical, mental, or emotional health.

In determining neglect, the court considers whether a parent or guardian’s actions or omissions have caused, or are likely to cause, harm to the child’s physical, mental, or emotional health. It’s not just about intentional harm but also about a failure to provide necessary care or protection.

The standard for neglect is based on what a reasonable and prudent parent would do in similar circumstances. It’s not about perfection, but rather about meeting the basic needs of the child and ensuring their safety and well-being.

Published on: December 18, 2023

Court considered whether a father abused his children by using corporal punishment. In re Loudemya SJ, 2023 N.Y. Slip Op. 51040 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Article 10 of the Family Court Act in New York addresses issues related to child abuse and neglect, including the use of corporal punishment. Corporal punishment, defined as the use of physical force against a child for the purpose of discipline, is a contentious issue.

Under Article 10, the definition of neglect includes instances where a child’s physical, mental, or emotional well-being is impaired or at risk due to the failure of a parent or caretaker to exercise proper care and supervision. This broad definition encompasses various forms of maltreatment, including corporal punishment that exceeds what is considered reasonable discipline.

While the law recognizes a parent’s right to discipline their child, it also imposes limitations to prevent abuse. Excessive or severe corporal punishment that results in physical harm or emotional trauma may constitute neglect under Article 10. The threshold for determining what constitutes excessive punishment is based on the minimum degree of care expected from a parent or caregiver.

Published on: December 13, 2023

Court decided that it was in the best interests of the child to terminate parental rights. In re of a Proceeding Under Article 10 of the Family Court Act Y. SS., 2023 N.Y. Slip Op. 50968 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Terminating parental rights in New York means legally severing the relationship between a parent and their child. This action is taken when it’s determined that the parent is unable or unwilling to provide a safe and stable environment for the child. Once parental rights are terminated, the parent no longer has any legal rights or responsibilities regarding the child, including custody, visitation, or decision-making. The child is then placed under the care and supervision of a government agency, typically with the goal of finding a permanent and stable home through adoption. Terminating parental rights is a significant legal step taken to ensure the well-being and safety of the child when it’s deemed that maintaining the parent-child relationship is not in the child’s best interests.

Background Facts

Y. SS. was removed from her mother’s custody in September 2020 after the Department filed a petition alleging abuse and neglect. The specific reasons for removal were related to concerns about the mother’s ability to provide a safe and stable environment for the child. The court intervened to ensure the child’s welfare and initiated legal proceedings to address the situation. Both the Department and the mother were represented in subsequent hearings, where evidence was presented and arguments were made regarding the child’s best interests. The involvement of attorneys and social workers underscored the seriousness of the situation and the need for a thorough legal process to determine the appropriate course of action for the child’s future.

Published on: December 11, 2023

Court considered whether lack of contact by biological father was a basis to grant adoption of children without his consent. M.S. v. Michael UU. (In re Wyatt JJ.), 2023 N.Y. Slip Op. 50859 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

According to DRL §111, consent from a parent is typically required for adoption in New York State. This applies to both parents unless specific circumstances exist. Consent is deemed necessary unless a parent’s rights have been legally terminated or if the parent has abandoned the child. In cases where a parent has relinquished their parental rights or has failed to maintain contact or support for the child, their consent may not be required for adoption. However, if both parents are alive and capable of providing consent, they must generally agree to the adoption for it to proceed legally. This statute aims to uphold the rights of parents while also ensuring that the best interests of the child are considered in adoption proceedings. It establishes a framework for determining when parental consent is necessary, thereby facilitating the adoption process while safeguarding parental rights and the welfare of the child.

Background Facts

In the adoption proceeding concerning Serenity JJ. and Wyatt JJ., the petitioner, referred to as Petitioner or Mother, testified regarding her relationship with the children and their biological father, Michael UU. The mother explained that she and Michael UU. were divorced in 2019 and that she subsequently married R.S. During the relevant six-month period from August 17, 2021, to February 17, 2022, Petitioner Mother stated that Michael UU. had no contact with the children, did not request visitation, and made no effort to communicate with them. She further testified that there were no legal restrictions preventing Michael UU. from contacting her or the children, nor did she block any attempts at communication.