Articles Posted in Child Custody

There are many complex cases to consider in the world of family law. Some of the most often-discussed cases includeTeenage-girls-bench-300x200 those to do with divorce, child support, child custody and parenting time cases. However, there are also instances in which a parent may be accused of neglecting or abusing a child – either in a case brought in family court or outside of court after a CPS or ACS investigation.  Child neglect can appear in many different allegations, from a parent being accused of being unable or unwilling to provide their child with the right food and hygienic care to keep them healthy, to a care-provider being accused of neglecting to give a child the expected education.

The law says children are entitled to an education. If a parent fails to provide their child with that education, the belief is that they could be harming that child’s future and making it harder for them to succeed in life. As such, issues with education are often referenced in cases regarding abuse and neglect.

In New York, the family court defines a child suffering from educational neglect as an individual under the age of 18 whose mental, emotional, or physical condition is either impaired or in danger of becoming impaired because of a failure on the behalf of the parent to provide the right level of education. Parents are responsible for supplying children with an adequate education in accordance with the New York Education law. Continue reading

Going through a New York divorce or couple split is often very difficult for all of the parties involved, including any children of the divorcing couple. Children are often unwitting parties to the entire process, yet their lives can change significantly as a result. It is not uncommon for children to resist the fact that their parents are getting divorced or separated. Consequently, they may take one parent’s side over the other.

When it comes to a New York family law court’s custody orders, however, children are obligated to follow the visitation or parenting time arrangement set forth by the court. While a judge will listen to a child’s wishes in regards to visitation, ultimately the court will consider factors other than the child’s expressed preferences when determining whether visitation with the non-custodial spouse is appropriate. If the court determines that the non-custodial spouse has parenting time or visitation rights, then the child must attend visitation.

If a child refuses to honor court-imposed parenting time, courts have several available courses of action, depending on the reasons why the child does not want to participate in visitation with the non-custodial parent.  A child of employable age can be deemed constructively emancipated if without good cause he/she refuses to have a relationship with the non custodial parent.  But the parent seeking emancipation has the burden.  I have previously blogged about constructive emancipation and have represented a number of people in such cases. For example, in one case, the non-custodial parent could have been relieved of their child-support obligation if the child is determined to have “abandoned” the parent, but in this linked case the petitioning parent did not show a lack of justification for the abandonment.

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As we approach the end of the calendar year, taxes are on everyone’s mind.  Perhaps people are thinking more about taxes than usual because of the passage of the new tax law by Congress at the end of 2017.   To many who have been through a New York divorce or separation, the tax implications of dissolving a marriage are incredibly important and must be part of the overall discussion regarding other issues, such as the division of assets and child custody.

One issue that frequently arises in New York divorce cases is which parent is able to claim a child or children as a dependent for tax purposes. The ability to claim a child as a dependent can have a significant effect on a party’s tax liability.

For the most part, only one person can claim a child as a dependent on their tax return. However, a custodial parent can waive their right to claim certain benefits, such as the child’s personal exemption, the child tax credit, and the tuition and fees deduction. Notably, a custodial parent could still retain the head-of-household filing status, the child and dependent care credit, and the earned income credit. However, according to the IRS, if the parties have multiple children the parties can either agree on how to split up the dependency credits or a court may make that determination.

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Parents have an obligation to keep their children safe and to make sure that a child’s naiveté does not put them in harm’s way. At the same time, most parents want to encourage some level of independence to help develop a child’s decision-making skills. In today’s society, with the prevalence of cellular phones, text messaging, instant messaging, and the like, the question of a parent’s right (and in some cases, obligation) to monitor their children’s phone use frequently comes up.

The general rule is that a parent is able to monitor their children’s cell phone use, including the text messages that have been sent and received. This can be done in a number of ways. The easiest way for a parent to view a child’stext messages is to simply scroll through the child’s phone. Parents can also view a log of all of the messages sent and received in most carriers’ monthly billing statements or online. There are also apps that allow for parents to monitor a child’s phone activity remotely.

Thus far, we have discussed monitoring a child’s cell phone activity to keep tabs on with whom they are talking and what they are saying. However, if a parent wants to use text messages in a New York family law proceeding, other issues may arise.

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Many New York family law cases involve a child custody dispute. Most often, these disputes arise when the parents of a child or children go through a divorce and argue over who has primary custody of the children. However, in some cases, grandparents seek visitation or custody of a child. This may be after a divorce or even while the child’s parents are still together.In previous posts, we have discussed under which situations a court may award visitation or custody to grandparents. As previously noted, grandparents do not have a “right” to the custody of their grandchildren. Thus, custody will only be awarded to a grandparent if certain factors are present. Among others, a court must determine that awarding custody to a grandparent or grandparents is in the best interests of the child.

How Do Courts Determine What Is in the Best Interests of a Child?

Judges know the law. However, very few judges are trained in psychology, and fewer still are able to glean sufficient knowledge of a family’s dynamics through the evidence presented to the court. For example, much of the evidence presented in a New York custody case may be limited to text on a page, which may not provide a judge with much knowledge of the relationships between the parents, children, and grandparents. Additionally, any live-witness testimony has the potential to be biased or fabricated.

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Most New York child visitation cases involve courts establishing the rights and obligations of the parents as they relate to each other. However, New York family law does contemplate a situation in which a court can order visitation for a child’s grandparents under certain situations. This may even be the case when the custodial parents are against the establishment of such visitation rights.

New York Domestic Relations Law Section 72

As a general matter, section 72 of the New York Domestic Relations Law provides that visitation or custody rights may be appropriate for the grandparents of certain minor children. Subsection 1 deals with visitation rights. This subsection begins by discussing the procedure in a situation in which one or both of the child’s parents have died.

However, this subsection also allows for courts to award visitation to the grandparents even in situations in which one or both of the parents are alive, if the court determines that “equity would see fit to intervene.” This second scenario presents a more interesting situation in which the parents of a child are still alive, and at least one parent is against the issuance of visitation rights to the grandparents. Of course, as is often the case in New York family law matters, the court must also determine that grandparent visitation would be in the best interest of the child.

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Ever since the time that DNA testing has been recognized as a reliable method of determining paternity, family courts across the country have relied upon the testing to resolve disputes over paternity. Indeed, the New York Family Court Act discusses the availability of DNA testing for the purposes of establishing paternity in section 532.In fact, section 532 requires family law judges or magistrates to advise all parties of their right to request DNA testing in paternity cases, instructing that the court “shall” order testing when any party requests it. That being said, the statute also prohibits DNA testing when the judge determines that testing is not in the best interest of the child based on certain enumerated reasons.

As noted above, parties have a right to a paternity test, and a test will be ordered if any party makes such a request. Additionally, the court can, on its own motion, order paternity testing even if neither party has requested it.

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In an earlier post, we discussed some of the issues that may arise when a sperm donor seeks to establish the parental rights of a child. One of those issues arises when a sperm donor seeks to establish parental rights. This is complicated by the fact that New York does not generally enforce contracts between sperm donors and the couples using the donor’s sperm on the basis that such contracts are against public policy.This post follows up on that topic with a discussion of a recent case issued by a New York court, which acts as the most recent example of how courts treat the parental rights of sperm donors versus the woman (or family) who gives birth to the child.

The Facts of the Case

A same-sex lesbian couple arranged to have an acquaintance provide them with a sperm sample so that the couple could have a baby. Since the agreement did not go through a sperm bank or a licensed medical professional, the couple drew up their own contract without the assistance of legal advice. The contract waived the donor’s parental rights, as well as any rights to visitation. The contract also waived the couple’s right to seek child support from the donor.

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Child custody issues are often the most hotly contested area in divorce and family law cases. It would stand to reason, then, that New York child custody issues are not limited to situations in which the biological parents of the child are in a relationship – or even know each other.With the advent of recent medical developments over the past few decades, couples who thought they may never be able to have children are able to give birth to a child through various means. Of course, this includes same-sex couples relying on donated sperm. However, with these recent developments, child custody issues have arisen, requiring New York courts to come up with ad hoc methods of resolving these child custody conflicts.

As a general matter, if someone goes through a doctor for the artificial insemination process, there is little to worry about in terms of the sperm donor later seeking custody of a child. Similarly, a sperm donor probably has little to worry about the parents seeking to enforce a paternity action. This is because the contract between the sperm donor and the business or organization accepting and storing the sperm provides for the termination of any parental rights the donor may otherwise have. Thus, to try to ensure that there will not be any problems in the future, parents who hope to conceive through artificial insemination are advised to use an official medical provider to do so.  However, it is possible that if somehow the anonymous donor was identified that the court might allow a paternity action to be maintained against him.  How that case would play out is not clear at this time under New York law.

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It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.New York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”

An Example

Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.

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