Articles Posted in Parenting Time

While any person’s definition of “family” might be unique to them, it’s important to remember that it’s the court of Woman-Couple-Pregnant-300x200New York’s delineation that matters most when decisions are to be made around child custody, parenting time, and visitation. As a child custody attorney, I’ve been involved with several complex cases around how a child should be supported and raised by people within their family. As I have reminded my clients in the past, up until now, only a “parent” – as dictated by the courts, will be able to petition for visitation or custody according to the outlines of Domestic Relations Law § 70. Perhaps one of the issues that makes this idea so complicated, however, is that Domestic Relations Law § 70 does not define what a “parent” is. This means that the courts need to determine that for themselves.

In issues presented to the courts of New York, except for in the case of “extraordinary circumstances” a parent should prevail over a non-parent in a custody battle. The law, up until now, is that for unmarried couples, partners that have no biological adoptive connection with the child had no standing to seek parenting time and custody. However, extraordinary circumstances like abandonment of the child, surrender of parenting rights, and more can alter the situation. The court of Appeals in New York highlighted the definition of parentage in New York in the case of Alison D. v Virginia M., 572 NE2d 27 (N.Y. 1991). However, this outline has become less applicable in a modern world, where the family relationship is now more varied and complex than ever. The case that presented the previous definition of “parent” was established in 1991, and since then, times have changed significantly. Continue reading

If you and your partner have been hoping to have a baby, then the potential new law in New York could be the answer. After all, there are plenty of reasons why a couple might be unable to Pregnant-Woman-300x200conceive a child on their own. Some people experience issues in conceiving, while same-sex partners are forced to seek out alternative options to the traditional method.  Adoption is often the answer.

For many, surrogacy can seem like the simplest way to create a family. However, the truth is that this process isn’t nearly as straightforward as it might seem. Not only is paying for surrogacy incredibly expensive, but the legal guidelines currently in place within New York mean that couples could be penalized for entering into a contract with a surrogate.  The article by Sheryl F. Colb in Verdict, Legal Analysis and Commentary from Justia on November 8, 2017 provides a thorough analysis of the topic.  This blog summarizes and in spots supplements the article

Understanding Surrogacy Law in New York

From a medical perspective, there are two types of surrogacy that can be considered by those searching for alternative methods of conception. Traditional surrogates are women who are inseminated with sperm to fertilize their own egg. This means that the resulting child is biologically related to the surrogate parent. On the other hand, “gestational” surrogates are implanted with an embryo that is created in a lab using the egg and sperm of the intended parents. In the case of a gestational surrogacy, the surrogate is not related to the child. Continue reading

When parents decide to bring an end to their relationships together or to their marriage in divorce, there areSadBoyWine-300x203 several complicated concerns that they’ll need to think about. Just one of those issues, involves how parenting time and custody should be handled.  When a court needs to decide the issues the court will look at best interests of the children.  Sometimes, parents can simply come to terms about child custody and parenting times on their own, through the process of negotiations through their child custody lawyers, mediation, or collaborative law. However, as a family law attorney, I’ve also seen many instances wherein parents have needed to turn to the help of the court to determine how a child’s care should be divided between spouses.

One common issue that can cause complications in deciding how a child’s custody and parenting time should be managed, is the presence of drugs, alcohol, or issues with sobriety in the lifestyles of one of the parents involved in the divorce. If a parent is known to have issues with sobriety, then it may be the court struggles to determine whether exposure to that parent is in the best interests of the child. Sometimes, visitation may be limited to “supervised” visitation, depending on whether or not the court believes that unsupervised visitation might harm the child in some way.  But also getting sober can be a significant positive to allow for a custody and parenting time order to be revisited.  Continue reading

There are various elements involved in ensuring the best results fromJudgesbooks-300x200 a child custody case. Closing statements are one of the unique and valuable opportunities that child custody lawyers use when attempting to present their side of the story to the judge. Because managing a case with children involved can be particularly tricky, a summation or closing statement can provide a memorable way to draw all the facts of the case together into something that the judge can use to make their decision. Otherwise known as a “summation”, a closing statement, when performed by an effective child custody lawyer or divorce attorney, can sweep away any pre-existing feelings that the judge had, and replace their thoughts with a new insight into a custody case and why their clients desires are in the best interests of the child or children.  After all, that is what a child custody and parenting trial is all about.   

To some degree, a closing statement is similar to an opening statement. For instance, in both the opening and closing statements, the attorneys for both parties will have the opportunity to directly address the judge, and “discuss” the case, giving them a framework for understanding the role of each party in the case, and how the evidence should be considered. However, a closing statement can involve arguments that allow the child custody attorney to make their point more effectively, whereas an opening statement requires the lawyers for both sides to stick to the facts. Though arguments can be made about the evidence and how it was presented to help sway the judge or undermine the other party’s case, it’s worth noting that there are rules to follow. Continue reading

Child custody trials can be very challenging experiences for every individual Lawyer-Justice-Scales-226x300involved. After all, they require the court to consider the best interests of a child when moving forward after a divorce case. An important element to remember is that while many professional techniques are used during a child custody battle, no-one really “wins”. Instead, the best arrangement will be suggested based on the unique needs of the child, and the ability of a parent to provide the healthiest upbringing for that child.  It is very much preferred for parents to be able to make agreements as to what the custody and parenting time arrangements for their children will be.  Trials build the animosity between the parties and thereby are harmful to the children.  That being said, custody hearings and trials happen as people involved in a custody battle sometimes cannot or will not settle.

Opening statements represent the start of a custody trial.  Often times custody lawyers choose to waive opening statements as the trier of fact in the case is a judge (there are no jury custody trials in New York), not a jury, and the judge most likely would rather proceed to the testimony rather than hearing opening statements.  Opening statements are not evidence so a judge might actually appreciate the first witness being called who can provide evidence by their testimony, rather than hearing the musings of the child custody attorneys.  Continue reading

PolyamoryLaws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

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In the world of family law, many issues regarding everything from divorce, to maintenance, and even child custodyfamily-sitdown will depend on the unique factors that exist behind a particular case. For instance, whether child support is appropriate and how much should be awarded, though guided by a formula, will ultimately be determined by the circumstances of the parents, parties or spouses involved. However, one matter that always remains the same in cases concerning children is that New York courts are supposed to place the “best interests” of the child at the head of their considerations in making a decision about custody and parenting time. In deliberating about child custody, the New York Courts will endeavor to make a decision for the future of the child that will be most beneficial to the development, and future of that individual. However, as the needs of a child can change over time, the fact that an order is marked “permanent” doesn’t necessarily mean it cannot be changed under the right circumstances. There are two primary situations in which child custody orders are modified:

  1. When a parent violates court orders
  2. When one or both parents suggest a significant and material change in circumstances.

The circumstances that are deemed to be within the “best interests” of a child are subject to change in accordance with the elements surrounding that child at any given time. Therefore the New York court may grant custody modifications if circumstances change significantly since the time the original order was put in place. Modifications, however, must be made based on a change that was not obvious or present during the time of the original order. Examples of a substantial and material change in circumstances might include the use of illegal drugs, a felony conviction, or evidence of child abuse. If the needs of the child changes – such as a changing need in medical attention or schooling, the courts may also consider modification, but only if enough evidence is available to determine that such an alteration is in the child’s best interests.

Defining a Material Change in Circumstances

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babyIn an overwhelming number of cases, parents agree to a child custody arrangement without involving the court. However, some child custody cases are brought to court because parents are unable to agree. In those cases, the Supreme Court or Family Court is supposed to allocate to each parent decision-making, care-taking, and access to the child, making these determinations based on what would be in the best interests of the child.

Custody determinations related to best interests depend largely on the court’s assessment of the parties’ credibility, character, and temperament. The higher courts are not supposed to interfere with these determinations, made by a trial court, unless they lack a sound and substantial basis in the record.

Under New York Family Court Act § 251, the court can order anyone within its jurisdiction and the parent or other person legally responsible for the care of a child within its jurisdiction to be examined by a physician, psychologist, or psychiatrist designated for that purpose if the examination serves the purposes of the act. This person can provide a forensic evaluation that allows the court to determine which custody and visitation arrangement would be in the best interests of the child.

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Child Custody disputes and Divorces are complicated at the best of times.  Often, legally breaking down a relationship becomes more Airport Rundifficult when children are involved. When a mother and father choose to separate or divorce, they not only have to think about the steps that should be taken to improve their chances of pursuing their own best interests, but they also should think carefully about the best interests of their children. That is the standard that a New York court would use.

While, in an ideal scenario, fathers and mothers seeking a divorce would carefully come to a decision about custody agreements, child support, and parenting time or visitation together, using a mediation method or collaborative law – without the strain of battling the issue out in court – family law is not always this simple. In some cases, a New York Supreme Court or Family Court judge will be forced to step into the scenario and figure out which parent should be awarded primary physical custody. In these cases, there are many factors for a judge to consider when putting the best interests of a child first, and one is the concept of who can be defined as the “primary caretaker” for the children.  Please note that the primary caretaker status is not determinative of the best interests of the children, rather it is one of the many considerations that can be taken into account. During this blog, I will discuss which details can be provided to show who can be regarded as the primary caretaker of a child, and what it means to be a primary caretaker.  Continue reading

childWhen you apply for a modification of an earlier order in a New York child custody dispute, you’ll have to present evidence showing a change of circumstances to justify that the modification is necessary to protect a child’s best interests. If you stipulated to the earlier order there is case law that stands for the proposition that you can present evidence of any changes from the time of stipulation.

Although you should show that the substantial change occurred since the issuing of the order, the court may consider all relevant factors related to the best interests of the child when determining child custody, sometimes, even, including the behavior of the parents before and at the time of stipulation. In determining whether a change in circumstances warrants the modification of a custody arrangement, the court will look at whether the change implicates the fitness of the custodial parent or affects the nature and quality of the noncustodial parent’s relationship with the child. There may be a time lag between a stipulation and the court’s issuance of an order, but this should not be a lost period for the purposes of presenting evidence to prove that the modification is appropriate.

For example, in the Matter of MMH v. William DH, the court considered a New York mother’s request for a modification of an earlier order. She wanted an order for sole custody and an order that would allow her to move to another state. The father opposed the application for these orders.

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