New York Family Law Blog

Published on: October 5, 2024

While wife may not have car, court found no evidence of cruel and inhuman treatment in marriage. D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005)

by Stephen Bilkis

In D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005), the D.A. sought a divorce from his wife, B.E.A., under Domestic Relations Law Section 170(1) based on claims of cruel and inhuman treatment. The couple had been married since 2001, and D.A. argued that his wife’s lack of care for his deteriorating health endangered his well-being. The court had to decide whether the evidence provided was enough to grant the divorce on these grounds.

Background Facts

D.A. and B.E.A. were married on June 21, 2001, though they had lived together for several years prior to that date. At the time of the marriage, D.A. was already suffering from asbestosis. Over time, his health worsened. By 2003, he had been diagnosed with emphysema, and later that year, he underwent surgery for lung cancer, which required the removal of one of his lungs. His medical condition left him in chronic pain, requiring continuous pain management, including Percocet and, eventually, morphine.

Published on: October 5, 2024

Grandparents denied custody where foster parents sought to adopt. Carter v. Admin. for Children’s Servs., 176 A.D.3d 696 (N.Y. App. Div. 2019)

by Stephen Bilkis

When parents lose custody of their children, the goal of the Administration for Children’s Services (ACS) is always to permanently place the children in stable family environment. While reunification with bio parents is the best case scenario, adoption is also a positive outcome. Carter v. Admin. for Children’s Servs., 176 A.D.3d 696 (N.Y. App. Div. 2019) involves a custody dispute concerning a child removed from his mother’s care after her arrest. The maternal grandparents, residing in Maine, sought custody of the child, but their petition was dismissed after the mother surrendered her parental rights. The child was then placed for adoption with a foster family.

Background Facts

In January 2016, ACS removed a seven-month-old child from his mother’s care following her arrest for prostitution and child endangerment. After the removal, the child was placed in a nonkinship foster family. The mother faced a neglect proceeding in Family Court, which resulted in a finding of neglect against her. The finding was entered without her admission of neglect but with her consent.

Published on: October 5, 2024

Court terminated the father’s parental rights, citing mental illness and permanent neglect. In re William L., 2021 N.Y. Slip Op. 3838 (N.Y. App. Div. 2021)

by Stephen Bilkis

This case involved the termination of a father’s parental rights to his three children, William, Hailey, and Amanda, under Social Services Law § 384-b. The Family Court found that the father was unable to care for the children due to mental illness and had permanently neglected them. The court transferred custody and guardianship of two of the children to the Commissioner of Social Services and the foster mother for adoption. The father appealed the decision, and the Appellate Division affirmed the Family Court’s findings and orders.

Background Facts

The father had three children: William, born in 2004; Hailey, born in 2005; and Amanda, born in 2011. In 2009, William and Hailey were removed from their parents’ care and placed with their paternal grandmother due to concerns about their safety. Amanda, born later, was placed with the grandmother in 2012. During this time, the grandmother allowed the father to have unsupervised contact with the children in violation of existing orders of protection. This led to the removal of all three children from the grandmother’s custody in 2012, and they were placed with a foster mother.

Published on: October 4, 2024

Separation agreement is enforceable only if it involved full financial disclosure. S.M.S. Kabir v. Kabir, 85 A.D.3d 1127 (N.Y. App. Div. 2011)

by Stephen Bilkis

In New York, separation are agreements are enforceable, but only if certain conditions are met. One of those conditions is that both parties must make full financial disclosures, including all of their assets. The case of S.M.S. Kabir v. Kabir, 85 A.D.3d 1127 (N.Y. App. Div. 2011) involves a dispute over the validity of a separation agreement between a husband and wife. The wife sought to set aside the agreement, claiming that it was not fairly negotiated and that key financial information had been withheld by the husband.

Background Facts

The parties were married and later entered into a separation agreement on July 11, 2007. The wife later claimed that the agreement was unfair because the husband had allegedly concealed several assets during the negotiation. She stated that she did not discover these concealed assets until 2009, two years after the separation agreement had been signed.

Published on: October 3, 2024

Court vacated final order of protection after determining that the absence of respondent at hearing was not willful. Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012)

by Stephen Bilkis

In hearings regarding orders of protection, if one party does not show up and does not provide an explanation, the court will typically issue a default order against that absent party. In the case of Troy Barcia in Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012), the issue before the court centered on a default final order of protection that was issued and whether there was substantive evidence to support the order.

Background Facts

On August 8, 2011, a family offense petition was filed against Troy Barcia. The petitioner alleged multiple offenses, including attempted assault, assault in the second or third degree, aggravated harassment, harassment, menacing, sexual abuse, and forcible touching. The Family Court responded to the allegations by issuing a temporary order of protection that was to remain in effect until August 15, 2011.

Published on: October 2, 2024

Appellate Division found that injuries are not required to meet criminal definition of serious physical injury to be considered child abuse. Admin. for Children’s Servs. v. Ferida B. (In re Jonah B.), 85 N.Y.S.3d 505 (N.Y. App. Div. 2018)

by Stephen Bilkis

This case involved three related child abuse and neglect proceedings under the Family Court Act, Article 10, in Queens County, New York. The Administration for Children’s Services (ACS) filed allegations against the parents and maternal grandmother of a child named Talia. The Family Court, after a fact-finding hearing, dismissed allegations of abuse and derivative abuse. ACS and the children appealed, arguing that the court erred in not finding abuse.

Background Facts

In April 2014, ACS began two child abuse and neglect proceedings against the mother, father, maternal grandmother, and paternal grandmother. The allegations centered on the care of the child Talia, who was four months old at the time. Talia was taken to the hospital on April 7, 2014, where doctors diagnosed her with multiple injuries, including rib fractures, fractures in both legs, and a fracture in her right arm. The injuries occurred between her birth on December 5, 2013, and April 7, 2014. ACS claimed these injuries were not accidental and were inflicted while Talia was in the care of her parents and grandmothers. ACS also argued that Jonah, Talia’s sibling, was derivatively abused.

Published on: October 1, 2024

Mother found to have abused child, even though multiple caregivers were present around the time of the injuries. Admin. for Children’s Servs. v. Allison B. (In re Dall. P.), 185 A.D.3d 589 (N.Y. App. Div. 2020)

by Stephen Bilkis

When it comes to abuse of children, the courts look at not only the person who was accursed of inflicting the abuse, but also any individuals who were caring for the child around the time that the abuse occurred. Admin. for Children’s Servs. v. Allison B. (In re Dall. P.), 185 A.D.3d 589 (N.Y. App. Div. 2020) involved serious injuries to a two-year-old child and raised questions about the responsibilities and actions of caregivers. The court had to determine whether the mother could be held responsible for her child’s injuries based on the evidence presented during the fact-finding hearing.

Background Facts

The case began when the mother and her boyfriend brought the mother’s two-year-old son, Dallas P., to Jamaica Hospital on August 22, 2015. Dallas had a ruptured bowel that required emergency surgery. The Administration for Children’s Services (ACS) initiated legal proceedings under Family Court Act Article 10, alleging that the mother had abused the child. During the fact-finding hearing, the court heard from several witnesses, including medical professionals. Dr. Edmond Kessler, the treating pediatric surgeon, testified that faint bruises were observed on the child and that the only reasonable explanation for the injury was a single, high-velocity traumatic event. Dr. Kessler also indicated that the injury occurred within 6 to 24 hours before Dallas was admitted to the hospital.

Published on: September 30, 2024

Court imputed income to nonworking mother. Remsen v. Remsen, 2021 N.Y. Slip Op. 5342 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In a recent case before the Family Court, Westchester County, a mother appealed an order denying her objections to a prior decision that directed the father to pay child support and spousal support. The court’s decision was based on imputing income to the mother.

Imputed income refers to the assignment of income to a parent for the purpose of calculating child support obligations, even if that parent does not currently earn that income. This legal concept is applied when the court believes that a parent has the capacity to earn more income than they are currently earning or reporting.

In child support proceedings, imputed income typically arises when one parent alleges that the other parent is voluntarily unemployed or underemployed to avoid or reduce their child support obligations. The court may impute income to the parent based on their earning capacity rather than their actual income. This ensures that the child’s financial needs are adequately met, regardless of the parent’s employment status or reported income.

Published on: September 25, 2024

Court vacated an acknowledgement of paternity. Escobar v. Pagan, 2022 N.Y. Slip Op. 4912 (N.Y. App. Div. 2022)

by Stephen Bilkis

In proceedings under Family Court Act articles 5 and 6, several orders issued by the Family Court of Suffolk County were contested. These orders pertained to issues surrounding paternity, acknowledgment of paternity, and parental access to a child. In a relatively unusual move, the court vacated an acknowledgement of paternity.

In New York, the court may vacate an acknowledgment of paternity under specific circumstances, typically when there is evidence that the acknowledgment was obtained through fraud, duress, or mistake of fact.

Firstly, if there is clear and convincing evidence that the acknowledgment was obtained through fraud, the court may intervene to vacate it. Fraudulent circumstances could include misrepresentation of paternity by one of the parties involved, such as if the individual signing the acknowledgment knew they were not the biological parent but falsely claimed to be.

Published on: September 18, 2024

Does a grandmother have standing to seek visitation? Noguera v. Busto, 189 A.D.3d 1050 (N.Y. App. Div. 2020)

by Stephen Bilkis

Noguera v. Busto, 189 A.D.3d 1050 (N.Y. App. Div. 2020) centered around a maternal grandmother’s right to visitation with her grandchild, which was initially denied by the Family Court. In New York, grandparents may seek visitation rights if one or both parents are deceased, or if conditions warrant equitable intervention. The court must first determine standing based on these circumstances and then assess if visitation serves the child’s best interests, considering the existing relationship’s quality and duration.

Background Facts

The case involved a maternal grandmother who sought legal visitation rights to her grandchild, following a complex familial situation that crossed international borders. The child, born in 2009, was initially involved in custody proceedings between his parents. In 2012, during these proceedings, the mother unlawfully took the child from the United States to Argentina, without the consent of the father. This act triggered a lengthy and intense search involving multiple law enforcement agencies, including the police, the FBI, and the U.S. Department of State. In 2018, their efforts resulted in the successful return of the child to the father in the United States.