New York Family Law Blog

Published on: December 9, 2024

Was father entitled to a credit for all excess payments? Merritt v. Merritt 188 A.D.3d 886 (N.Y. App. Div. 2020)

by Stephen Bilkis

In New York, when a parent has overpaid child support, they may be entitled to a credit for excess payments. This credit applies to future child support obligations. The process usually requires a formal court order or a judge’s decision confirming the overpayment and approving the credit. This situation often arises after a successful appeal or modification of a child support order that results in a reduced payment obligation. In Merritt v. Merritt 188 A.D.3d 886 (N.Y. App. Div. 2020), a proceeding in Westchester County, New York, a father appealed a Family Court decision that limited the credit he received for excess child support payments.

Background Facts

The parties involved, a mother and a father, were divorced in 2010 after having three children together. As part of the divorce settlement incorporated into the judgment, the father was mandated to pay $3,272 monthly in child support. This amount was subject to an annual recalculation based on his income, which was to be at least $175,000. In December 2014, following a consent order, his child support obligation increased to $4,593 per month.

Published on: December 8, 2024

Corporal punishment and allegations of neglect. Admin. for Children’s Servs. v. Ketly M. (In re Alven V. ), 143 N.Y.S.3d 577 (N.Y. App. Div. 2021)

by Stephen Bilkis

In Admin. for Children’s Servs. v. Ketly M, the Family Court of Kings County addressed allegations of child neglect against a stepmother. The case raised questions about the use of corporal punishment and its legal limits. The court found that the stepmother had neglected one child through excessive corporal punishment and derivatively neglected two other children in the household.

In the context of child neglect, corporal punishment refers to the use of physical force as a disciplinary method. While parents or guardians may use reasonable physical discipline, excessive corporal punishment crosses the line into neglect under New York law. Neglect occurs when physical force causes harm or poses a substantial risk of harm to a child’s physical or emotional well-being. Actions such as hitting a child with objects or inflicting injuries demonstrate excessive corporal punishment. Courts assess whether the punishment was reasonable based on the circumstances, the child’s age, and the severity of the discipline (see Family Ct Act § 1012(f)(i)(B)).

Background Facts

Published on: December 6, 2024

Mother’s permanency hearing appealed dismissed as moot. Westchester Cnty. Dep’t of Soc. Servs. v. Antoinette W. (In re Malazah W.), 121 N.Y.S.3d 677 (N.Y. App. Div. 2020)

by Stephen Bilkis

Permanency hearings are critical in child welfare cases, ensuring that children placed in the care of social services have stable and appropriate long-term plans. In Matter of Malazah W. and Malikah W., the Family Court addressed the permanency goal for two children removed from their mother’s care due to neglect. The mother appealed a February 2019 permanency hearing order, which continued the goal of reunification and the children’s placement with Westchester County’s Commissioner of Social Services (CSS).

Background Facts

Antoinette W., the mother of Malazah W. and Malikah W., consented to a finding of neglect without admission under Family Court Act Article 10. The children were placed in the custody of CSS. As part of the permanency planning process, a hearing was held in November 2018 to assess the children’s status and determine the appropriate permanency goal.

Published on: December 1, 2024

Court vacated family offense and protection orders after default. Gastaldi v. Gastaldi, 2015 N.Y. Slip Op. 882 (N.Y. App. Div. 2015)

by Stephen Bilkis

A New York family offense order of protection is a legal directive issued by the Family Court to safeguard individuals from abuse or harassment by a family member or someone with a close relationship. It is available in cases involving allegations of domestic violence or family offenses such as assault, harassment, stalking, or threats. The order may require the respondent to stay away from the petitioner, cease abusive behavior, vacate a shared residence, or surrender firearms. Violations of an order of protection are taken seriously and can lead to criminal consequences. It is a tool to ensure safety and peace

In family law, orders of protection are issued to ensure the safety of individuals who may be at risk of harm. However, the process of obtaining such orders must follow procedural rules to ensure fairness for all parties involved. In Matter of Gastaldi v. Gastaldi, the Family Court was asked to review whether a prior decision, entered in the absence of one party, should be vacated to allow both sides the opportunity to present their cases.

Background Facts

Published on: December 1, 2024

Father’s abuse of one child led to derivative neglect findings. In re Joshua J.P. (Anonymous). Admin. for Children’s Servs., 2015 N.Y. Slip Op. 3538 (N.Y. App. Div. 2015)

by Stephen Bilkis

In a case addressing allegations of sexual abuse and derivative neglect, the Family Court, Richmond County, issued an order that found Alquiber R., Sr., responsible for sexually abusing his stepson, Joshua P., and derivatively neglecting his two biological children, Luis P. and Alquiber R. The decision underscores the court’s role in protecting the safety and well-being of children and its reliance on corroborated testimony and expert evidence in cases involving abuse allegations. This blog examines the case, the questions it raised, and the court’s determination.

Background Facts

The petitioner in this case, the Administration for Children’s Services (ACS), alleged that Alquiber R., Sr., sexually abused Joshua P., a child in his care, and that this conduct demonstrated a lack of judgment that placed his other children, Luis P. and Alquiber R., at risk of harm. Joshua P. made out-of-court statements describing incidents of abuse, which were later corroborated by a sexual abuse expert and an ACS caseworker. ACS argued that this evidence was sufficient to establish that Alquiber R., Sr.’s conduct not only harmed Joshua P. but also created a dangerous environment for the other children.

Published on: November 27, 2024

Plaintiff requested termination of spousal support and recalculation of child support. JJ v. TW, 70 Misc. 3d 1225 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In JJ v. TW, 70 Misc. 3d 1225 (N.Y. Sup. Ct. 2021), among other things, the plaintiff requested that the court terminate spousal support. An interesting aspect of New York law when it comes to spousal support modification is that the Family Court Act and the Domestic Relations Law outline different conditions under which spousal support can be modified.

Under the FCA section 412, spousal support orders can be modified upon certain events, including:

A written or oral stipulation or agreement between the parties.

Published on: November 25, 2024

In the absence of marriage, without evidence of a formal agreement or financial contribution, there no right to property or financial support. Farre v. Lours, 2020 N.Y. Slip Op. 33963

by Stephen Bilkis

Common law marriage is a legal concept that recognizes a couple as married without the need for a formal ceremony or marriage license. It typically arises when a couple lives together for a certain period of time and holds themselves out as married, presenting themselves to others as spouses. In common law marriage states, these couples are treated legally as if they had undergone a formal marriage ceremony.

However, New York does not recognize common law marriage. This means that even if a couple lives together for an extended period and behaves as if they are married, they are not considered legally married under New York law. In New York, a valid marriage requires a formal marriage ceremony performed by an authorized officiant and the issuance of a marriage license.

In Farre v. Lours, 2020 N.Y. Slip Op. 33963, a plaintiff brought forth various claims against the father of her children, seeking financial relief and asserting rights related to their shared assets and living arrangements. The case involved complex legal arguments surrounding the nature of their relationship, financial contributions, and promises made during their partnership.

Published on: November 19, 2024

ppellate Division upheld child support and maintenance modifications due to procedural default and emancipation. Feldman v. Feldman, 185 A.D.3d 552 (N.Y. App. Div. 2020)

by Stephen Bilkis

This case centered on a post-divorce dispute involving modifications to child support and maintenance obligations. The plaintiff appealed orders and judgments that adjusted the defendant’s financial responsibilities, arguing against the decisions rendered by the Supreme Court, Kings County. The appeals revolved around procedural defaults, the emancipation of the parties’ child, and the modification of financial obligations.

Procedural default occurs when a party fails to follow legal procedures required in a case, such as appearing in court or filing necessary documents within specified deadlines. In legal matters, this failure can result in significant consequences, including the dismissal of appeals or claims. Courts view procedural default as forfeiting the right to contest certain decisions. To address a procedural default, the party must typically file a motion to vacate the default and provide a valid reason for the failure. Courts often emphasize strict adherence to procedural rules to ensure fairness and efficiency in the judicial process.

Background Facts

Published on: November 17, 2024

Appellate Division affirmed sole custody to the mother due to deteriorated co-parenting and father’s limited involvement. Connell-Charleus v. Charleus, 140 N.Y.S.3d 752 (N.Y. App. Div. 2021)

by Stephen Bilkis

In a case concerning the custody of a minor child, the Family Court of Kings County addressed a petition to modify the custody arrangement outlined in a Florida judgment of divorce. The court considered whether a change in circumstances warranted granting the mother sole legal and physical custody of the child.

The mother and father married in 2010 and had a child in 2015. Their marriage ended in 2016 when a Florida court issued a judgment of divorce. The judgment incorporated a settlement agreement and a parenting plan granting the parents joint custody of the child. The father, who lived in Toronto, was entitled to overnight parenting time from Thursday to Sunday every other week and during vacations. The mother, residing in Brooklyn, was the primary day-to-day caregiver.

The agreement also required the parents to participate in co-parenting counseling for 18 months to facilitate joint decision-making. However, their relationship, which was strained at the time of the agreement, deteriorated further. By 2017, the mother registered the Florida judgment in New York and petitioned the Family Court in Kings County to modify custody, seeking sole legal and physical custody of the child.

Published on: November 15, 2024

Court restricted a father’s social media posts to protect child’s privacy and family relationships. Walsh v. Russell, 214 A.D.3d 890 (N.Y. App. Div. 2023)

by Stephen Bilkis

This case involved a dispute between parents over custody of their child, which led to additional issues related to the father’s use of social media. The Family Court addressed concerns raised by the mother and the attorney for the child (AFC) regarding the father’s social media activity, which included sharing details about the custody proceedings and disparaging the mother and her family.

The mother sought sole legal and physical custody, while the father engaged in public commentary about the case on social media platforms. The father allegedly posted blogs and images of the child, as well as statements criticizing the mother and her family. The attorney for the child filed a motion requesting that the court prohibit the father from continuing these activities, arguing that they were not in the child’s best interests. The motion also sought an order directing the father to delete all existing content related to the case. The father did not oppose the motion or appear at the related hearing. The Family Court granted the motion and ordered the father to refrain from posting about the case or the mother’s family and to delete any existing related content. The father appealed, arguing that the restrictions were overly broad and violated his First Amendment rights.

Question Before the Court