Modification of Visitation Based On the Age of the Child

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

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.

Paying for College – A Requirement Under the Child Support Standards Act?

Prior to the enactment of the Child Support Standards Act, contained in Family Court Act §413 and Domestic Relations Law §240, the courts had held that the provision of a college education to one’s minor children was not a necessary expense for which a parent could be obligated in the absence of a voluntary agreement or special circumstances. Haessly v. Haessly, 203 A.D.2d 700 (3d Dept. 1994). However, recent case law recognized that special circumstances, which involve the educational background of the parents, the child’s academic ability, and the parents’ financial ability to provide the necessary funds, continue to be relevant factors in applying the standard set forth by the Legislature in the Child Support Standards Act for determining whether an award for college expenses is appropriate.

It is clear that the Court has the power to order a parent to pay his child’s educational costs even though the parties’ settlement agreement is silent on that issue. Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005); McDonald v. McDonald, 262 A.D.2d 1028 (4th Dept. 1999). As aptly noted in Mrowka v. Mrowka, 260 A.D.2d 613, 613 (2d Dept. 1999), “Although the parties’ stipulation of settlement was silent as to the costs of college, this does not necessarily mean that an agreement was reached pursuant to which college costs would not constitute a component of the parties’ obligation to pay child support.”

According to the Appellate Division, Fourth Department, Fruchter v. Fruchter, 288 A.D.2d 942, 943 (4th Dept. 2001), the Child Support Standards Act authorizes an award of educational expenses where warranted by the best interests of the children and as justice requires, upon a showing of “special circumstances”. Relevant factors include the educational background of the parents, the child’s scholastic ability, and the parents’ ability to provide the necessary funds. Id.

In Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005), the Appellate Division, the Fourth Department, rejected the father’s contention that Family Court improperly denied his objection to an order requiring him to pay half of his daughter’s educational expenses. The Fourth Department held that the support magistrate properly determined that the petitioner-mother was unable to meet the child’s educational needs on the income and support that she was receiving, and that the respondent-father had the ability to pay support. Id.

Therefore, even if the parties have a separation agreement that is silent on the issue of paying for college, they may be directed to pay for their child’s college education by the court.

Visitation and Older Children

I have previously written that with respect to the issues of custody and visitation, children, especially older children, may have some input into the court’s decision. Sometimes, that input may cause the court to terminate visitation altogether. In a recent decision, the Appellate Division, Second Department, reversed orders awarding visitation to the mother where the family court’s in camera interviews with the then-16-year-old children confirmed that they were vehemently opposed to any form of visitation with the mother. Sassower-Berlin v. Berlin, 2009 NY Slip Op 00217 (2nd Dept. 2009). The court restated the familiar principal that “[a]s a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access”. Because the record contained substantial evidence that visitation as awarded by the Family Court would be detrimental to the welfare of the subject children, the Appellate Division held that any attempts to further a relationship with the mother at this point would cause the children undue emotional distress.

While Sassower-Berlin is clearly an exception rather than the rule, it reinforces the fact that older children may have significant input into custodial and visitation arrangements.

Recent Amendment to Domestic Relations Law §240

On January 15, 2009, another amendment to Domestic Relations Law §240 became effective. The amendment prohibits courts from signing custody orders before they check the following registries: the domestic violence registry, the Family Court “Universal Case Management System” (for child protective decisions and orders), and sex offender registry. The court is required to notify the attorneys, self-represented parties and attorneys for children of the results of the search. This notification can be made in writing or orally, on the record, especially with with respect to the sex offender registry, since the search of that registry will not generate a report that can be shared with the parties.

As a result of the amendment, the judgments of divorce, permanent custody orders and any temporary orders involving petitions for custody or visitation, must include the language stating that required databases were reviewed and what information , if any, from the databases was relied upon by the court in issuing the order.

The above is likely to place an additional burden on the courts, litigants and attorneys.

The Role of Attorney for the Child in Custody and Visitation Disputes

Sometime ago, I became certified as an Attorney for the Child, formerly known as a Law Guardian. Since that time I represented children, primarily in Family Court, in various custody and visitation proceedings, as well as PINS (person in need of supervision) and juvenile delinquency cases.
One issue that commonly arises is that I am asked, typically by the parties, what my report to the court is going to be. I usually respond that I do not have a report to deliver, and that the reason I was appointed is to act as an advocate for the parties’ child or children. With that in mind, here are some of the basics related to what the attorney for the child does.
The Attorney for the Child is usually appointed by the court in custody and visitation disputes. He/she is there to represent the child’s interests. The person chosen to act as the Attorney for the Child is usually a lawyer who is experienced in custody matters.
Normally, the Attorney for the Child speaks with the child or children and may also speak to either or both of the parents. The Attorney may also speak with school personnel, a child’s therapist, the forensic examiner appointed in the case, or anyone else the Attorney considers appropriate to obtaining relevant and necessary information to enable him/her to state the child’s position to the Court on behalf of the child. If a child is too young to verbalize his/her thoughts, the Attorney for the Child may substitute his judgment and argue the position deemed to be in his client’s best interests.
At a hearing or during a trial, the Attorney for the Child has the right to call witnesses and to cross-examine on behalf of the child. The Law Guardian’s role is to assure that the Court hears an unbiased view of what is in the child’s best interest, a view not colored by either parent promoting his or her own agenda.
The Attorney for the Child will frequently act as a buffer between two hostile parents in an attempt to obtain a resolution that is in the child’s best interest. The most common criticism if that the Attorney for the Child frequently appears to aligns him/herself with one parent, losing objectivity and effectively becoming a second advocate for one parent.
A common mistake that parents make in custody disputes is to forget that the Attorney for the Child is the child’s attorney and not their attorney. Your own attorney will keep your communications with him/her confidential and will reveal only what is in your best interests. Your own lawyer will work with you to present your arguments in the best light. That clearly is not the same as the Attorney for the Child’s role.
In discussions with the Attorney for the Child, parents need to give reasons they believe their child’s best interests are served by that parent serving as the primary custodian or that the child will be well served by requested changes in visitation. They need to describe their positive contributions to raising the child.
On November 8, 2008, the Appellate Division, Fourth Department, has issued Guidelines for Attorneys for the Children that are applicable to both Supreme and Family Court proceedings. These guidelines must be followed by all attorneys for the children practicing in the judicial districts included in the Fourth Department. In my opinion, the guidelines represent a clear and cogent set of rules and all attorneys handling family law matters should have at least a passing familiarity with the guidelines as well.

Custody and Non-Parents

In New York, non-parents, including grandparents, may obtain custody under limited circumstances. However, non-parents face a significant burden of proof which needs to be surmounted in order to obtain custody. Where a non-parent can show “extraordinary circumstances”, a court may find that they have standing to seek custody. After determining whether a non-parent has standing, the court must still decide whether allowing such person to have custody is in the best interests of the child, using the standard best interest of the child test, in the same way that parental custody is determined.

The origins of “extraordinary circumstances” standard are more than 30 years old. In 1976, the New York State Court of Appeals held that when a custody dispute between a parent and a non-parent arises, the parent’s superior right to custody could be disturbed only if extraordinary circumstances are proven and if it can be shown that it is in the child’s best interest for a non-parent to have custody. Bennett v. Jeffreys, 40 N.Y.2d 543 (1976). Typical examples of extraordinary circumstances are when a parent is unfit, where there is persistent neglect of a child by a parent, or where the parent abandons the child.

The Bennett case involved a 15 year old unwed mother who gave birth to her child while living with her parents. Under pressure from her mother, the girl reluctantly transferred the child to the care of Ms. Jeffreys, a former classmate of her mother. Ms. Jeffreys failed to adopt the child because she couldn’t afford to. When the biological mother was 23, and about to graduate from college, she brought a proceeding in Family Court to obtain custody of her child. But the Family Court dismissed the petition, directing that custody of the child remain with Ms. Jeffreys. The biological mother was awarded visitation rights.

The Appellate Division reversed the decision of the Family Court and directed Ms. Jeffreys to return custody to the biological mother because she had not surrendered nor abandoned the child, and was not unfit. The Court of Appeals subsequently reversed the Appellate Division, holding that where “extraordinary circumstances” exist such as an extended separation of the child from his or her biological parents, the best interests of the child were superior to the custody rights of a biological parent.

Extraordinary circumstances differ from case to case, however, the recent amendment to the Domestic Relations Law §72 gives grandparents extra consideration in that an “extraordinary disruption of custody” of at least 24 months, is described by the statute as an “extraordinary circumstance”.

Termination of Parental Rights and Step-Parent Adoption

Occasionally someone comes to consult with me and tells me that the biological parent of their child wants to terminate his or her parental rights voluntarily. My typical response is, that even in a situation where the parent is willing to give up those rights voluntarily, they will not be terminated unless the child is adopted by a step-parent. Because of the strong public policy considerations against depriving children of their parent’s emotional and financial support, New York requires that someone else must step into the shoes of the biological parent, who no longer wishes to be a part of the child’s life. The adopting step-parent must want to undertake the financial and legal responsibility for the child and also to agree to release the non-spouse biological parent of their parental responsibilities.

New York law requires that the child’s parents both consent to the adoption, unless:

1) The parent has failed to visit and communicate with the child for six months.
2) The parent is mentally ill or mentally retarded and is unable to care for the child.
3) The parent has surrendered to an authorized agency under social services law.
4) The parent’s child has had a guardian appointed under social services law.
5) The parent has executed an instrument, which is irrevocable, denying the paternity of the child.

Once the step-parent has agreed to adopt the child, the child’s consent may be necessary. New York law requires the consent of children over fourteen years of age, unless the judge or surrogate in his or her discretion dispenses with such consent. Once the adoption is finalized and the order of adoption has been entered, the former parent will no longer be required to pay child support, but will continue to be responsible for arrears in child support. Also, the child’s birth certificate may be updated to replace the biological parent’s name with step-parent’s. In New York, step-parent adoption can be handled by either Family Court or Surrogate Court.

In addition to the step-parent adoption, parental rights may be terminated by a court of competent jurisdiction which has determined the child to be an abandoned child and the authorized agency, having care of the child, files a petition seeking termination of parental rights.

Grandparents’ Right of Visitation

In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).

Since 1976, visitation may be awarded to grandparents in matrimonial actions. The 1976 amendment added the following to DRL §240: “Such direction [of a court in a matrimonial action] may provide for reasonable visitation rights to the maternal or paternal grandparents of any child of the parties.” In New York, the statute provides that grandparents may obtain visitation rights even though their child is not deceased, and the nuclear family is intact.

Last year, the Court of Appeals in E.S. v. P.D., 8 N.Y.3d 150 (2007), unanimously rejected a constitutional challenge to New York’s grandparent visitation law. In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville, 530 U.S. 57 (2000).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child'” (Troxel, 530 U.S. at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, is based upon the presumption that the parent’s wishes represent the best interests of the children. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 (1976)).

While this presumption creates a significant burden for the grandparent, the grandmother in this case was able to overcome it, because from the time the child was almost four until he was seven, grandmother was the primary caretaker. The court then considered all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue, such as whether the father’s objections to grandmother’s access to the child were reasonable, her caregiving skills and attitude toward father, the law guardian’s assessment and the child’s desires, before granting visitation.

Paternity and Equitable Estoppel

Equitable estoppel typically arises as a defense in situations where a person, typically a nonbiological father, seeks to avoid child support obligations or the biological father belatedly seeks recognition of his parental rights.

DNA testing is a way to guarantee that non-custodial parents provide financial support for their children and make it possible to accurately determine a child’s paternity in a quick and inexpensive manner. The widespread availability of reliable genetic testing has reduced the need for extensive fact finding hearings and protracted litigation in the court system and can essentially ensure that the presumptive father is really the child’s biological father. However, in New York, not every putative father entitled to a DNA test.

Consider a scenario where a presumptive father files a paternity petition in a New York family court, together with a petition for custody of a child he believed to be his own. The child’s mother concedes paternity and acknowledges that her son refers to the putative father as his father and that the putative father has had some involvement with the child. Lets assume farther that during the paternity hearing, however, the putative father requests that the Court order a DNA test to confirm that he is indeed the child’s biological father. Must the Court issue an order subjecting the child to DNA testing?

In New York, the answer is no. Under what is known as the doctrine of equitable estoppel, the Court may deny an application for a DNA test in a paternity proceeding on the principle of fairness and in the best interests of the child. Equitable estoppel precludes a presumptive father from speaking out against his own acts, commitments or representations if they are reasonably relied upon by the child.

If a substantial parent-child relationship has developed between the putative father and the child and no biological father has come forward to contribute to the costs of the child’s upbringing, New York courts may find that it is not in the child’s best interests to admit DNA evidence that disproves the presumptive father’s paternity. The doctrine of equitable estoppel has often been applied to protect the child from an untimely assertion or denial of paternity, which, if permitted, would damage an existing parent/child relationship.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings. In that case, the court found that the respondent, who never married the mother and was not the biological father of the woman’s child, was equitably estopped from denying paternity. The child was believed to be the product of a brief liaison between the respondent and the mother. The respondent initially acknowledged paternity and provided some financial support. He had intermittent visitation with the child, although he was often not even in the same country as the mother and child. Four years after the child’s birth, it was determined that he was not the biological father. The court found that the respondent was equitably estopped from raising the issue of paternity, both by statute (Family Court Act § 418 [a]; § 532 [a]) and at common law. The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.”

The doctrine of equitable estoppel evolved as a balancing test between the best interests of the child and the rights of the parent. Where there has been a bond formed between the parent and child, the interest of the child in preserving that relationship and the obligations of the parent toward that child, outweigh the putative father’s interest in establishing whether he is really the child’s biological father.