Articles Posted in Visitation

In a previous post, we considered a situation in which the grandparents of a child or children sought visitation when the custodial parent was opposed to such visitation. This week, we consider a related, although slightly different situation in which the children themselves have expressed a desire for the court not to order grandparent visitation.

Walk with GrandpaAs was the case in the previous post, section 72 of the New York Domestic Relations Law and Section 651 of the Family Court Act govern court-ordered grandparent visitation. Under section 72, grandparents who can establish that “circumstances show that conditions exist which equity would see fit to intervene” may obtain visitation rights.

While the issue of grandparent visitation can be a complex one, it is governed by a simple principle; as is the case in most New York child custody and visitation matters, courts will do what is in the best interest of the children. Of course, the expressed desires of a child may come into play when determining what is in a child’s best interests, although that will not always be the case.

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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.

GrandparentsNew 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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This blog article will discuss the pros and cons of overnight parenting time to the non-residential custodial parent on Businessman Childrenschool nights.  Discovering a schedule for parenting time or child visitation that works for both parties involved in a divorce or child custody case, as well as the children in question can be one of the most important things a single parent does. After all, child custody cases or divorce is difficult enough upon existing family dynamics, without the confusion of an ever-changing and disruptive visitation schedule adding extra problems into the mix. Whether drafting an initial example for a possible parenting time plan, or attempting to make sense of the schedule that the court has presented to you, it’s crucial to remember that different scenarios work better with different circumstances. Ultimately, the visitation that is ordered by the court, and the plans you come up with through mediation and other measures, should reflect the best interests of the children.

Although each family is unique, there are some arrangements in the world of custody that have gathered more popularity than others – remaining a favorite of many family court counselors and parents who choose to develop their own parenting plans. Indeed, I often see many parents opting for the most common “alternating weekend” schedule, with some modifications here and there designed to cater for specific families. However, parenting time schedules are much more flexible than you might think, and there are other options available when it comes to meeting the individual needs of each unique family. For instance, you might find that your ideal schedule allows for extended weekend visitations that permit the children to have more time with the non-custodial parent. On the other hand, you might even look into the possibility of mid-week overnight visitation.  However, sometimes that might not be in the best interest of the children.  Whether or not overnight visitation on school nights is appropriate really depends on the specific family. Continue reading

grandparents-1256161In a 2015 case, Matter of Rumpff v. Schorpp, a New York appellate court heard an appeal regarding grandparents’ rights. The petitioner was the father of two children. The respondent in the case was the children’s mother. Soon after the younger child was born, the Department of Social Services started neglect proceedings against both of the parents, claiming that their drug and alcohol abuse had caused them to fail in providing the children with adequate supervision and guardianship. They agreed to have the children live with their maternal grandmother, also a respondent in the appeal.

Later, the grandmother asked for sole custody. The parties stipulated to joint legal custody for the father, mother, and grandmother, with the children physically placed with the grandmother. In 2011, the father sought physical custody of the kids by filing a petition to modify custody.

The order continued the prior custody arrangement by the agreement of all the parties. In 2013, the father again brought a petition to modify, seeking sole custody. The family court granted him sole legal custody and physical placement. The mother was given parenting time, and the grandmother was given visitation. The grandmother, the mother, and the children’s attorney appealed this decision.

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CPS ( Child Protective Services ), ACS ( Administration for Children’s Services ), and Judges in New York make determinations to indicate or found cases regarding neglect and Children Grassabuse of children in New York or whether these determinations should stand.  But, when these findings are challenged, when should an emotional neglect finding stand or not?  In the State of New York, the law dictates that emotional abuse, including neglect, can be defined by the omissions or acts made by caretakers or parents that result in serious changes to a child’s conduct, cognitive, mental, or behavioral functions. Parents have a responsibility to support the proper physical and emotional development of their children – failure to offer that support, either deliberately or passively, can be a sign of neglect. Under section 1012(f) of the Family Court Act, a maltreated or neglected child is an individual under the age of eighteen who has had their physical, emotional, or mental condition impaired as a result of his or her parents, or caretaker’s action or inaction. The minimum degree of care expected from parents or caretakers according to the New York law, includes:

  • Supplying the child with adequate education, shelter, clothing, and food.
  • Providing medical, optometric, dental, or surgical care.
  • Giving the child proper guardianship or supervision to reasonably prevent potential harm and risk when possible.

One example case drew attention to proof provided for the injuries that a child sustained as a result of neglect. The case determined not only that the condition of the child was legitimate, but also that it could not have occurred within a typical five-year-old, without the presence of neglectful behavior from the parent. In this particular case, the respondent mother was the primary caretaker of a five-year-old who consistently exhibited troubled behavior, an obscene vocabulary, and an obsession with deviant and explicit sexual conduct. Regardless of whether the respondent in question tutored her son towards this behavior, or allowed the traits to take place in an environment wherein she should have been exercising control, the case of neglect was made. Continue reading

child-and-dog-1562311-e1451580463239In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.

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Conflict in a familyThe short answer is yes, if the best interests of the children suggests different parents should have custody, as the recent Long Island case summarized below illustrates.  Child custody battles everywhere, as in Nassau County, New York can be extremely difficult, both for the parents and for the children. If a couple is not able to mediate and come to an agreement between themselves, the court must often devise creative solutions to highly charged and sensitive problems. The best interests of the children are of paramount importance to the court when making a custody determination.

In Kramer v. Kramer, the New York Supreme Court of Nassau County considered an acrimonious child custody battle, within a divorce, in a dysfunctional family. The couple had married in 1992. The husband mostly worked as a construction supervisor. The wife completed a master’s degree in early childhood education at the time they married and worked for a short period at a Jewish school. After that, she stayed home to raise the kids. The case was filed in 2011. At the time she commenced divorce proceedings, seeking temporary sole custody of the kids, maintenance, and exclusive occupancy of the marital home, she was working as an event coordinator.

In the case, the wife alleged that the husband had drained their joint bank accounts and reduced his support for the kids and her. The defendant claimed the plaintiff, his wife, turned the three oldest of his four kids against him. He also claimed she was unstable and had an undiagnosed mental illness.

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Female couple cuddling with their baby son

The law in New York is that a non-biological, non-adoptive parent does not have standing to proceed in a court for custody or parenting time.  There is, however, a statute that allows grandparents standing to petition for custody and visitation under certain circumstances, which I have previously blogged about.  In Debra H. v Janice R., 14 N.Y.3d 576 (N.Y. 2010), New York’s highest court, the Court of Appeals reaffirmed its rule that neither parents by the doctrine of equitable estoppel or people standing “in loco-parentis” to a child has standing to seek custody and visitation or parenting time in court.  The rule would be then that biological strangers that have not adopted a child cannot proceed in court in New York for custody and visitation.

Still applying this precedent, though, two different cases decided in different parts of New York, ended up with different results.  In one, the same sex partner was allowed to proceed with her custody case, in the other a domestic partner was found not to have standing.  The law was re-iterated in the Fourth Appellate Department, which covers part of upstate New York just this year, in 2015 in the case of Matter of Barone v Chapman-Cleland, 129 A.D.3d 1578 (2015) which stated that biology or adoption under our current statutes define what a parent is and stated that any change of this needs to come from the legislature.  In that case a same sex partner to a biological parent tried unsuccessfully to proceed in court on a case of custody and visitation.  The court ruled that this former partner did not have standing to proceed in court as a biological stranger that never adopted the child, despite the possibility that the person was very much like a parent to the child.  Continue reading

An Overview of Private Placement Adoption in New Yorkhappy family

Adoptions take place when one or two people take another individual (generally a child) to be their own child. When someone chooses to legally adopt a child, they will have all of the responsibilities and rights of a natural payment, and the child will retain all of the rights they would have had they been born naturally to the new family. The adopted child will be given a new birth certificate, and their last name will be the same as yours.

According to the New York Domestic Relations law, a single adult, two intimate adults, or a married couple may be permitted to adopt. Adoptions can be conducted through private placements including adult, step parent and foster parent adoptions. Individuals in need of further information regarding the topic of adoption should speak to a Long Island or New York family law attorney about their rights. Continue reading

Looking at daughtersParenting time or visitation schedules vary from family to family.  For the most part, the term visitation has been replaced by the term parenting time but both are still used.  Parenting time or visitation schedules detail when either parent spends time with their children.  First in this article, I will talk about some of the typical parenting time schedules that I encounter and can think of as a Child Custody Lawyer in New York.  Afterwards I will talk about where and how the orders are made.  The possible variations or orders or stipulations about parenting time are endless so please use this blog as suggestive of possibilities rather than as a definitive and exhaustive guide.

Each family is different, so as common as the schedule might be in any particular case, there are nuances which might appear in any one visitation or parenting time schedule.  Some parenting time schedules are not specific at all and simply require that the parents will discuss and arrange for mutually agreeable parenting time in the future.  Other cases have more specific provisions.  Probably the most common parenting time schedule that I see is where one parent has parenting time every other weekend from Friday evening or Saturday morning until Sunday evening or Monday morning.  Often times the order can include a weekly or bi-weekly dinner or overnight visit in the middle of the week to supplement the alternating weekends.  What is inherent in this type of parenting schedule is that one parent is the primary residential custodial parent.  What this means, in layman’s term, is that they live with one parent and have visitation (parenting time) with the other.  Please see our other blog entries and website or call to learn about the different custody arrangements.

Typically, in this aforementioned type of generic schedule, the children will alternate holidays and school breaks between the parents.  Some couples have situations that certain holidays are more important for them.  In that situation one parent may be granted the parenting time for the children always for that holiday.  If the holiday is equally important to both parents and both parents want time with the child(ren) each year then a schedule to determine how that holiday is shared each year might be appropriate.    Usually there is a provision that both parents may interrupt the normally scheduled parenting time of the other to be able to put together one or more weeks vacation time together each year.  A provision is usually included to give one parent priority for selection of vacation time in odd numbered years and the other in even numbered years.   Clauses that require itineraries and contact information for where the children will be staying during vacation times are often included as part of the order. Continue reading