Archive for the ‘best interests of the child’ Category

Surrogacy and Adoption

Saturday, May 3rd, 2014

One area where New York still lags behind other states has to do with surrogacy contracts. New York does not recognize surrogacy contracts statutorily since it deems the underlying surrogacy contracts to be against public policy, and they are void and unenforceable in New York. See N.Y. Dom. Rel. L. § 122. However, what happens to a child born as a result of such contract?

In a recent decision, Matter of J.J., 2014 N.Y. Slip. Op. 24089 (Fam. Ct. Queens Co. 2014), New York Family Court held that a child born as a result of a surrogacy contract can be adopted in the State of New York, notwithstanding the fact that such contract would be void and unenforceable.  In that decision, Judge Salinitro held that a man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York State. According to the court, the best interests of the twins is the most important consideration in weighing the adoption petition, not the surrogacy agreement that resulted in their birth. According to the decision, a home study provided to the court showed that the children are thriving in the care of the parents.

Thus, the court stated that it is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself. Rather, the case involved proposed adoptive parent who wanted to have equivalent legal status as the birth parent, and is prepared to assume the rights and responsibilities that accompany legal parentage.

Therefore, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 was of no consequence to the adoption. The court specifically found that “where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding”.

Section 122 of Domestic Relations Law declares that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable”. The judge said she found a “paucity” of previous rulings in New York on surrogacy and none directly focused on surrogacy contracts in the adoption context. Accordingly, she called the issue before her an apparent question of first impression in New York courts.

I think that the judge made the right decision. Given that the law does not always keep up with changes in medical technology and society, the courts have to step in and address these types of issues.

Mother Ordered to Stop Posting About Her Children on Facebook

Friday, April 12th, 2013

As social media continues to permeate every aspect of our lives, there is a continuing controversy about parents should post information about their children on social media sites. The controversy is grounded in both safety concerts, as well as concerns that children, who have not consented to having this information shared with the world, may suffer an invasion of their privacy or emotional harm.   A recent decision demonstrates how these issues can be addressed by the courts in New York.

In Melody M. v Robert M., 103 A.D.3d 932 (3rd Dept. 2013), the Third Department affirmed a Family Court order that among other changes to the prior joint custody, issued an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site. From the decision, it appears that while the parties initially had a joint custodial arrangement, that arrangement broke down primarily due to the mother’s pattern of inappropriate behavior and its effect on the parties’ oldest child, who had mental health issues. The mother did not participate in the child’s counseling because she did not like the therapist, or follow therapist’s  recommendation with respect to household routines. The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, and often resorted to physical means to deal with him.

In addition, the court quoted some of the mother’s testimony which was astounding:

[mother] utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

As a result of the mother’s use of physical force and disparagement of the oldest child on Facebook, the father had filed a violation petition. Since there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, the Appellate Division held that the lower court was justified in issuing an order of protection.

It is clear that the mother’s behavior was clearly inappropriate and that the court was justified in protecting the child. Just like with anything else involving the children, if you want to maintain custody of your children in the age of social media, it is best not to disparage them on Facebook.

Need to Preserve Relationship with Parent Does Not Take Precedence Over Economic Factors in Relocation Cases

Saturday, October 29th, 2011

In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.

The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.

The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.

The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends.

Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.

While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.

Interference with Visitation May Result in Change in Custody

Sunday, September 4th, 2011

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

Can a Parent Travel with Young Child Abroad Over Custodial Parent’s Objections?

Tuesday, July 26th, 2011

One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.

In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child.  The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.

While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct.  While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.

Can a Child Bring Petition Seeking Modification of Custody?

Saturday, June 18th, 2011

While the vast majority of cases petitions seeking to modify custody are brought by parents, can any one else bring a petition seeking to modify custody? I have written previously about petitions brought by non-parents, such as grandparents or someone who has a relationship with a child. A recent decision brought forth yet another party who can bring a petition seeking to modify custody – a child himself. In a recent decision, Trosset v. Susan A., 2011 N.Y. Slip. Op. 21151 (Fam Ct. Otsego Co. 2011), the court held that a child had standing to bring a petition seeking modification of present custodial arrangement. In Trossett, the child’s attorney filed a petition to modify prior court order. Respondent moved to dismiss the petition arguing that child’s attorney lacks standing to file petition concerning custody on behalf of child. The court held that  ”[w]hile absence of specific authority regarding custody and visitation is problematic, absence of statute granting child standing, such standing depends upon whether party has alleged facts showing disadvantage to himself or herself.” (citations omitted).  According to the decision, the attorney for child made allegations that directly relate to child’s desire to live with father. The court opined that the child has stake in outcome sufficient to confer standing upon him to file petition, or by child’s attorney on child’s behalf.

The decision does not provide much in a way of facts or legal authority for the court’s decision, however, I would guess that the child was older and, therefore, would have an opportunity to have input on any custody decisions. In addition, I would think that the parties were involved in court proceedings previously since the child had an attorney representing him.

Since the decision dealt with procedural issues related arising out of petition being filed by attorney for the child, we may never know how the case was resolved. However, I suspect that this issue may be appealed in the future and we may learn of further developments in the case.

Parental Interference, Parental Alienation and Available Sanctions

Sunday, June 13th, 2010

Parental interference and parental alienation are very common problems.  Unfortunately, the courts are reluctant to punish parties responsible for such conduct and rarely sanction parties for engaging in such behavior.  However, in a recent decision, Ted R. v. Lauren R., 2010 N.Y. Slip. Op. 50931(U) (Sup. Ct. Nassau Co. 2010), the court made a civil contempt finding based on the mother’s violation of the parties’ Stipulation of Settlement where the mother attempted to undermine the relationship between the children and the father and replace him with her new husband, manipulated the father’s parenting access, engaged in “unfettered vilification” of the father with the children, falsely reported sexual misconduct, and has caused the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The Court sentenced the mother to a period of incarceration of six weekends.

In addition, while noting that the father’s request during the contempt hearing for a change in custody has provided adequate notice to the mother, the Court amends the father’s application to conform to the evidence presented at the hearing and ordered a hearing regarding modification of custody.

The court went into great detail describing the mother’s behavior toward her ex-husband. The factual findings concerning the mother’s behavior as stated in the decision are extensive and in view of the mother’s behavior, I will quote them in order to demonstrate the mother’s conduct.  The mother’s behavior included the following:

“Plaintiff intentionally scheduled their child’s (N.’s) birthday party on a Sunday afternoon during defendant’s weekend visitation, and then refused to permit defendant to attend. She demanded that N. be returned home early, in order to “prepare” for her party, but D., the other child, was enjoying the time with her father and wished to remain with him until the party began. Plaintiff castigated N. for “daring” to invite her father to take a picture of her outside her party. According to the plaintiff, “this doesn’t work for me!” Plaintiff threatened to cancel N.’s party, and warned her that her sister, too, would be punished “big time” for wanting to spend time with her father. Plaintiff’s taped temper tantrum, offered into evidence, vividly detailed one instance of how D. and N. have been made to understand that enjoying time with their father will be met with their mother’s wrath and threat of punishment.”

Mother consistently lied about father’s custody rights, including to third parties.  Specifically:

“Plaintiff conceded that when she completed N.’s registration card for XXX., she wrote that defendant is “not authorized to take them. I have custody. Please call me.” At trial, she claimed to fear that defendant would retrieve the girls directly from school. However, she later admitted that defendant had never even attempted to pick them up at school. Her testimony at trial sharply contradicted her sworn affidavit dated January 23, 2008, in which she stated that “the defendant consistently attempts to pick up the girls unannounced from their schools and activities, which disrupts not only the girls, but those in charge of the aforementioned.” In her sworn affidavit, plaintiff claimed that she completed the registration card because defendant sought to attend the end of D.’s art class and then had the audacity to drive his daughter home. The art class “incident” occurred well after the registration card was completed by the plaintiff. Moreover, nothing in the parties’ agreement prohibits the defendant from visiting the children at extra-curricular events or from driving them to or from such events. In point of fact, there was no dispute that D.’s Friday art class in Huntington ended as defendant’s alternate weekend visitation commenced.”

“Plaintiff wrote to Dr. L.1 (then the XXX. principal) and Ms. T. (N.’s fifth grade teacher), demanding that they restrict their conversations with the defendant to N.’s academics, as plaintiff is “solely responsible for her academic progress and emotional well being. Notwithstanding the nature of their joint legal custody plaintiff insisted before me that, “I have custody, he has visitation.”"

“The plaintiff made/completed an application for admission to XXX on behalf of N. in October, 2007. On the application, she checked the box “Mother has custody,” rather than the box directly below which says “Joint custody.” She identified her new husband, R. L., as N.’s “parent/guardian,” and she failed to mention the defendant. During cross examination, plaintiff insisted that she only omitted reference to the defendant for fear that his financial circumstances would adversely impact N.’s chances for acceptance. However, no financial information was requested anywhere on the application. Moreover, plaintiff acknowledged that none was required until after an applicant was invited to attend.”

“By applying to XXX without defendant’s knowledge – - but with N. completely involved in the process, plaintiff orchestrated the decision to be made, as well as alienating the child. Had the defendant not consented to N.’s attendance at XXX, after the fact, N. would be angry with him for purportedly interfering with the enrollment, even if defendant’s objections to a private school placement were sound. In no event was he consulted as to this educational decision.”

“When asked how she might handle things differently now, plaintiff did not indicate that she would first discuss the possibility of a private school with the defendant, as she is obligated to do pursuant to the Stipulation.”

“In a similar pattern of being advised “after the fact,” defendant testified that there were countless times when plaintiff deliberately scheduled theater tickets, family events and social activities for the girls during his visitation, and he was compelled to consent or risk disappointing the girls. These occurrences continued even during the time span of proceedings before me.”

Mother claimed that children didn’t want to see father, specifically:

“Plaintiff was forced to concede at trial that the defendant was prevented from enjoying his visitation rights after he returned with the girls from his niece’s Bat Mitzvah until this Court granted defendant’s emergency application to compel the plaintiff to allow the defendant to take D. and N. for the ski trip he had scheduled for his half of the Christmas recess. Plaintiff insisted that it was D. and N. who refused to see their father, because they were angry with the ‘choices” he had made on their behalf, including his objection to N. attending XXX. Defendant was made aware of the children’s position because they parroted their mother’s demands on several occasions. D. even read from a script during the brief dinners he was permitted. As plaintiff wrote in one e-mail when she was describing her role with respect to the children: “I am in charge here, not them. What I [sic] say goes. They may bring their shoes. You are responsible for the rest. End of story.”"

“In vivid testimony, the defendant recalled how the plaintiff willfully prevented him from exercising his rights to visitation with the children from November 4, 2007 through December 21, 2007. I observed the plaintiff smirk in the courtroom as defendant emotionally related how he was deprived of spending Hanukkah with his children, and was relegated to lighting a menorah and watching his daughters open their grandparents’ presents in the back of his truck at the base of plaintiff’s driveway on a December evening.”

“The fact that the children were as angry as they were with the defendant in November and December, 2007, demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective. The children demanded that defendant meet “their” demands before they would permit him to visit with them again. They demanded that defendant permit N. to attend F. A., that he withdraw his objection to their participation in therapy with their mother’s therapist, and that he pay for 75% of D.’s Bat Mitzvah but limit his invitations to a handful of guests and have no role in the planning of the event. Plaintiff’s contention that she had no involvement in these children’s “demands” was belied by the very fact that the children had intimate knowledge of their mother’s position on all of these issues. The children, in effect, were evolved into plaintiff’s sub-agents and negotiators, having specific details of the financial demands of the plaintiff, and information as to the marital agreement.”

“The mother alluded to the ambivalence of the children in seeing the defendant. But such abrogation to the children’s wishes, under these circumstances, was in violation of the agreement. It was wholly improper for the mother to adhere to the children’s wishes to forego visitation with their father (see, Matter of Hughes v. Wiegman, 150 AD2d 449).”

“Plaintiff half-heartedly testified that she wants the children to have a relationship with the defendant. Her view of the defendant’s role was a numbing, desired nominality, evident by her actions that were without any semblance of involvement by the defendant – - notwithstanding the clear joint custodial provisions. At critical points in the cross-examination, plaintiff was noticeably off balance – - hesitating and defensive – - with answers that dovetailed to either narcissism, or, a poor grasp of the affects of her conduct. The plaintiff was dispassionate, sullen, and passively resistant to the alienating efforts of the plaintiff. The continued litany of instances of alienating conduct, turned repression of the defendant’s joint custodial arrangement into farce. The endurance in recounting instance upon instance of alienating conduct herein, was as daunting as it was indefensible.”

Mother’s behavior toward father in front of the children included the following:

“Plaintiff relegated the defendant to waiting endlessly at the bottom of her long driveway. When defendant drove up her driveway on October 26, 2007, so that the children would not have to walk down with their heavy bags in a torrential rain, plaintiff ran down the driveway where she had left her car, drove up the driveway and blocked defendant’s vehicle. The children watched as the police listened to their mother angrily demand that their father be arrested and, when the police refused, heard their mother scream that she is a taxpayer and the police work for her. She frequently disparaged the defendant in the presence of the children, calling him a “deadbeat,” “loser,” “scumbag,” and “f——-g asshole.” On one particular occasion, while holding N. and D. in her arms, plaintiff said to the defendant, “We all hope you die from cancer.” Just this past summer, when defendant insisted that D. retrieve her clothes from plaintiff’s home in preparation for their visit to N. on her camp visiting day, plaintiff urged to defendant that “Judge Ross will not be around forever, d___.” Before the beginning of each of defendant’s vacations with the children, the plaintiff staged prolonged and tearful farewells at the base of the driveway, during which plaintiff assured the children that they will return to “their family soon,” and if “things get too bad, they can always tell Daddy to bring them home.”"

Mother accused father of sexual abuse:

“The crescendo of the plaintiff’s conduct involved accusations of sexual abuse. Plaintiff falsely accused defendant of sexual misconduct in June, 2008, shortly after defendant moved to Huntington and the children’s friends were enjoying play dates at defendant’s home. Plaintiff testified that D. shared that she was uncomfortable when the defendant tickles her, and conceded that she knew there was nothing “sexual” involved. Undaunted by the lack of any genuine concern for D.’s safety, plaintiff pursued a campaign to report the defendant to Child Protective Services. To facilitate this, she spoke with W. M, the psychologist at the school D. attended. Plaintiff also “encouraged” D. to advise Dr. C. (the chidren’s pediatrician) that defendant inappropriately touched her – - but he saw no signs of abuse. Plaintiff also advised Dr. A., Ms. M., Dr. R. (the children’s prior psychologist) and family friends of the allegations and, ultimately, the Suffolk County Department of Social Services opened a file on June 3, 2008, and began an investigation.”

“According to the Case Narrative contained in the New York State Case Registry, a complaint was made that “On a regular basis, father inappropriately fondles 13 year old D.’s breasts. This makes D. feel very uncomfortable. Last Sunday, Father hit D. on the breast for unknown reason… ” When the caseworker and Suffolk County detectives interviewed D. on June 3, 2008, she reported only that her father tickles her on her neck and under her arms, and she categorically denied her father ever fondled her breasts. She admitted that her father was not attempting to make her uncomfortable, but that he still regards her to be a tomboy. The detectives closed their investigation.”

“Thereafter, and significantly, when the CPS caseworker met with plaintiff on August 19, 2008, plaintiff was quick to state that her ex-husband “did it again.” Plaintiff claimed that the defendant hugged D. too hard. According to the caseworker’s notes, the caseworker repeatedly cautioned the plaintiff not to bring the children into her disputes with the defendant. This warning was contained in CPS records.”

“Although unfounded child abuse reports are required to be sealed (see, Social Services Law §422[5]), such reports may be introduced into evidence,”by the subject of the report where such subject… is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment” (Social Services Law §422[5][b][1]). Allegations that defendant had injured the child were found to be baseless and, by making such allegations, plaintiff needlessly subjected the child to an investigation by Child Protective Services, placing her own interests above those of the child. This report was not made in “good faith” – - rather, the investigating agency warned the mother not to re-utilize the allegations and her children in her custodial litigation with the defendant.”

Mother’s behavior was not affected by pending contempt proceeding:

“The concern of a pending contempt proceeding did not affect the plaintiff’s conduct. For example, knowing that defendant had parenting access with D. on July 3, 2009, plaintiff invited D.’s close friend, C. C., to a country club for a fireworks display and advised D. of this invitation. She then instructed D. to tell her father she was invited to a friend’s party on that date. Another example occurred on June 13, 2009, when plaintiff quietly escorted D. from Alice Tulley Hall during the intermission, ignoring the instructions from the G. Y. Orchestra staff that everyone remain until the conclusion of the entire program. Plaintiff purported she was unaware that defendant attended this special program in Lincoln Center. Defendant, who was in attendance at the concert, was left waiting at the stage door with flowers for D. Plaintiff ignored his text messages questioning where his daughter was. The plaintiff, when confronted with the notion that she may have precipitously ushered her daughter away before her father was able to give her flowers, retorted to the Court that “it was not her responsibility to make plans for T.”"

In view of the mother’s behavior described above, the court held:

“The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement, incorporated but not merged into their Judgment of Divorce. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of “good faith,” and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The unfortunate history here also reflects the plaintiff’s hiring and firing of three different counsel, expressed disdain towards the children’s attorney, and utter disregard for the authority of the Court.”

With respect to parental alienation, the court stated:

“Differing “alienation” theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent’s relationship with a child has always been considered in the context of a “parent’s ability to encourage the relationship between the non-custodial parent and a child,” a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the “interference with the non-custodial parent and child’s relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent.”

“Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody.”

Judge Ross found Lauren R. in civil contempt of court and ordered her to spend every other weekend in the Nassau County Correctional Facility during June, July and August.

Judge Ross acknowleged that “An imposition of sentence upon a finding of contempt should contain a language permitting the contemnor an opportunity to purge.” However, in this case, a jail sentence was the only option available because it is no longer within the power of the plaintiff (mother) to purge since the violation was of a past court order. Furthermore, remedial intervention through counseling and parental training during the course of the trial was unsuccesful and if re-utilized, the “Court cannot release from imprisonment upon future compliance.”

The matter of approximately $165,000 in attorney fees will be the subject of another hearing.

What can we learn from this case? We can learn that it took years of inappropriate conduct, $165,000 in attorneys fees, and unquantifiable amount of damage to the relationship between the father and his daughter, before the court would punish this type of behavior. In view of the mother’s conduct, 6 weeks of weekends in jail seems inadequate. I do not know whether the court will change the residence of the children, however, it is clear that the joint custodial arrangement did not work in this situation. My guess would be that the court would likely to change custody to sole custody and grant the residence of the children to the father. The court is also likely to impose tight restrictions on the mother’s access to the children and her conduct toward the children and the father.

Asserting Equitable Estoppel As a Defense to a Paternity Proceeding

Sunday, June 6th, 2010

I have previously written about equitable estoppel.  In a typical equitable estoppel situation, the birth parent, typically the mother, asserts equitable estoppel to prevent genetic blood marker testing to determine whether the individual who believed himself to be the child’s father is in fact that child’s biological father.

In a recent case, Juanita A. v. Kenneth Mark N., 2010 N.Y. Slip. Op. 03758 (2010), the Court of Appeals held that a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where there is another father-figure is present in the child’s life.

On June 25, 1994, the child was born. At the time, mother was unmarried, but living with Raymond S., who was listed as the child’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of that child, had another child. When the child was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with the child. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with the child a second time was rebuffed by Raymond, who warned Kenneth not to speak to her again. Kenneth has had no further contact with the child.

In 2006, when the child was approximately twelve years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of the child. However, the Magistrate did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed the child’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (Aikens v. Nell, 63 AD3d 1662 (4th Dept. 2009)). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel.

In Shondel J. v Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals set forth the law applicable to equitable estoppel in paternity and child support proceedings. It held that

purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position.

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child.

Id. at 326.

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father. In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (In re Baby Boy C., 84 NY2d 91, 102n [1994]). Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argued that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, the Court concluded that it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

The Court of Appeals disagreed with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. The Court stated that the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity — when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

As a result of the Court’s decision, the case was remanded for a hearing where Raymond will be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of the child’s best interests.

I think that this is an important case but its application is limited to very specific factual situations.

Modification of Visitation Based On the Age of the Child

Sunday, September 20th, 2009

It is no uncommon to see vistation arrangements involving very young child.  While family lawyers can plan for many different situations, not everything can be planned for or predicted.  What happens to such arrangements when the child gets older?

In a recent case of Sett v. Balcom, 64 A.D.3d 934 (3rd Dept. 2009), the Appellate Division, Third Department, had to address issues related to visitation arrangments put in place when the child was a year old.  Initially, the father was granted two-hour Sunday visitation the mother’s residence, and the mother received sole custody.  The order also permitted unsupervised and additional visitation but only at the mother’s sole discretion.  As the child was now 5 years old, the father brought a modification petition, prompted by the mother’s persistent refusals to permit expanded visitation, and sought joint custody and increased visitation, including overnight visitation.

Following a fact-finding hearing at which both parties testified, Family Court denied the father’s request for joint custody but granted him additional visitation, including overnight visitation.

The Applellate Division held that sound and substantial basis found in record to support Family Court’s decision to modify visitation on ground that petitioner made sufficient showing of change in circumstances warranting modification to promote child’s best interests.  Initial restrictions on father’s visitation stemmed from child’s young age at time and father not having meaningful contact with daughter.  At the time the modification petition was brought, the father was gainfully employed, involved in a stable relationship, lives in home with bedroom for child and enjoys cordial relationship with mother and extended family.  Moreover, when the mother was asked about her objections to increased visitation, the mother’s only stated concern was that the child might be uncomfortable. The mother never voiced any concern about the father’s ability to parent or the child’s safety in his presence. Moreover, again when asked, she raised only two minor concerns about his home, one of which was that it lacked toys. The mother also conceded that the child should have a close relationship with the father and that they played well together during visits.

According to the Appellate Division, nothing in the record—including potential reticence typical of a young child—revealed that expanded visitation would be harmful or detrimental to the child.

Therefore, if you are dealing with a custody and visitation arrangement that entered when the child was young, that arrangement might be ripe for modification. If you believe that a change would be appropriate, discuss your situation with an experienced family law attorney.

Separated Siblings and Their Right of Visitation

Saturday, May 2nd, 2009

I occasionally see cases involving separated siblings.  In those situations, the parents, or the guardians of the children should be aware the siblings, or half-siblings have an independent right of visitation with each other. The Family Court has the same jurisdiction as the Supreme Court to determine visitation of minors, including visitation between siblings.  Family Court Act §651, Domestic Relations Law §71.  DRL §71 provides that “where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or a person on behalf of a child, whether by half or a whole blood, may apply to the family court [for visitation rights] as the best interest of the child may require.”  Thus, in cases involving sibling visitation, like grandparent visitation, the court must first determine whether equitable considerations grant a party standing to bring a petition and then, if so, whether it is in the best interests of the children to award such visitation.  E.S. v. P.D., 8 N.Y.3d 150 (2007).  The court in such a case is charged with determining what is in the best interests of all the children involved.  State ex rel. Noonan v. Noonan, 145 Misc.2d 638 (Sup. Ct. 1989).  The importance of sibling relationships has long been recognized by the courts of this state.  Eschbach v. Eschbach, 56 N.Y.2d 167 (1989).  This is manifested not only in preferring arrangements which allow siblings to live together, but also in ensuring that half-siblings have adequate contact with each other.  Olivier A. v. Christina A., 9 Misc 3d 1104 [A] (Sup. Ct. Suffolk Co. 2005).  The State’s recognition of the importance of siblings maintaining contact with each other is also manifested in Family Court Act §1027-a, which provides that foster care placement of a child with his or her siblings or half-siblings is presumptively in the child’s best interests. See also 18 NYCRR §431.10, which provides that a social services district must make diligent efforts to place siblings or half-siblings in foster care with each other unless such placement is determined to be detrimental to their best interests.

In a recent case, Isabel R. v. Meghan Mc., 23 Misc.3d 1102(A) (Fam. Ct. Dutchess Co. 2009), the court had to decide whether the half-siblings who were living in separate households after their parents’ breakup, were entitled to visitation with each other.  The court found that the evidence demonstrated that the children did indeed have a relationship until that relationship was unilaterally terminated by the mother after she and the children’s father split up.  While the mother argued that she has an absolute and unfettered right to determine whether sibling visitation should take place and that any direction by the court for sibling visitation would violate her constitutional rights. Relying on E.S. v. P.D., supra, the court held that mother’s constitutional argument was meritless and proceeded to decide whether visitation would be in the children’s best interests.  In considering the children’s best interests, the court has considered, among other factors, their prior relationship, the reason visitation was stopped, the reasons given and basis for the respondent’s decision to deny visitation at the present time, the views of the attorneys for the children, the future benefit to the children and the content of the Court’s in camera interviews. The children wished to see each other and expressed no negative feelings about doing so; the children have fond memories of times they spent together and activities they did together.  The court held that under those circumstances, visitation would be in the children’s best interests.