prison barsCustody battles are stressful for the parties. Whether you are navigating the legal system for the first time, or you have been embroiled in a custody dispute for several years, it is critical that you have a knowledgeable and seasoned attorney by your side. With more than 30 years of experience assisting New York residents with family law issues, attorney Ingrid Gherman is prepared to help you assert your legal rights in a child custody dispute.

A recent New York child custody opinion discusses the impact that the incarceration of one parent has on his or her visitation rights. The facts of the case are as follows. A father filed a visitation petition against the mother of their seven-year-old autistic son, seeking visitation rights. The parents resided in an apartment in the Bronx, where they had one child. Roughly three months after the child was born, the father moved out of the apartment and made attempts to be part of the infant son’s life. After some time, however, his attempts stopped.

The father filed a custody petition in 2009 and another in 2010. Both were dismissed without prejudice. In response to the petitions, the mother decided to allow the father visits with the child during his day off. The father would pick up the child from the apartment and then drop him off later that day. The visits continued until the father became incarcerated in 2011 after being convicted for the murder of an ex-girlfriend’s three-year-old child. In that case, the father was accused of hitting the victim repeatedly because she was not listening to him and refusing to eat. He was also accused of failing to seek medical attention for the victim. The father did not see his child for seven years after his initial incarceration, although a program allowed for inmates to have visits with their children. The father did, however, join a waiting list for parenting classes and anger management classes.

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Parent and ChildNew York family law is experiencing tremendous shifts that are affecting child custody disputes between same-sex partners. One New York Court of Appeals decision in particular, Matter of Brooke S.B., significantly expanded parental standing rights for same-sex partners in 2016. In what is described as a logical extension of that case, the New York Supreme Court, Appellate Division, First Department issued a recent decision, holding that a legally married same-sex couple that enters into a jointly executed surrogacy agreement receives the presumption that the child is the legitimate child of both partners.

In Carlos A. v. Han Ming T., the appellant and respondent lived together in the United Kingdom, where they entered into a civil union. Years later, their civil union was converted into a legal marriage and backdated as of 2008. In 2013, the couple entered into an egg donor and surrogacy agreement. Both partners contributed sperm. The embryo that was eventually transferred to the surrogate was only fertilized with the appellant’s sperm. The child was born in 2014. The appellant and respondent lived as a family together until 2015, when the respondent returned to the United Kingdom in search of a job. The appellant then started a relationship with another person and moved to New York while the respondent was in the United Kingdom. The appellant’s new partner commenced a New York adoption petition for the child.

The family court granted the adoption petition. However, the respondent learned that several crucial facts had not been disclosed, including the respondent’s role in the surrogacy process and his action for joint custody of the child. The respondent moved to vacate the adoption because he argued that he was entitled to notice of the adoption and a hearing because he had parental rights under New York law. The family court granted the respondent’s motion to vacate under New York Domestic Relations Law Section 114(3).

https://www.newyorkdivorceattorney-blog.com/files/2017/09/Screen-Shot-2017-09-18-at-3.00.44-PM-300x202.pngChild abuse is taken very seriously under New York law. In fact, certain professionals are required to report suspected cases of child abuse or maltreatment. The law grants qualified immunity to a professional making reports of suspected child abuse. However, a recent New York lawsuit alleged that a false report about the plaintiff’s medical condition led to the removal of her two children from her custody. This case highlights the New York child custody implications of the mandatory reporting statute.

The plaintiff was brought to the emergency room by New York City police officers. She was in emotional turmoil after being sexually assaulted on the subway that morning. Medical professionals in the emergency room allegedly inaccurately diagnosed the plaintiff as suffering from schizophrenia, bi-polar disorder, and manic depression personality disorder and advised New York City Child Protective Services of the diagnosis.

The plaintiff filed a lawsuit alleging that the medical professionals improperly disclosed her medical diagnosis to CPS and caused the authorities to remove the plaintiff’s two sons, aged four and nine, from her care and custody and place them in foster care. The lawsuit named the hospital and her doctor as defendants (Parra v. Beth Israel Med. Ctr., 2017 NY Slip Op 30782 – NY: Supreme Court 2017).

family-timeAs previously discussed on this blog, New York’s highest court recently issued the landmark New York child custody decision Matter of Brooke S.B., which expanded the definition of a “parent” under Section 70 of the New York Domestic Relations Law. The court ruled that a same-sex partner of a child’s biological parent could be considered a “parent,” if the parties agreed to share child-raising responsibilities. Following that ruling, a New York court decided Gunn v. Hamilton, which applied Matter of Brooke S.B. to determine custody of a same-sex couple’s adopted child.

The parties’ relationship began in 2007 and ended in 2009. During the course of their relationship, they planned to adopt and raise a child together. However, before they could adopt a child, the relationship deteriorated. In fact, the parties memorialized the breakup with a separation agreement, which was finalized in May 2010.

In the next year, the respondent moved forward with the adoption process and finalized the adoption in August 2011. When the respondent and her adopted child returned to New York, the petitioner became involved in the child’s life. The parties never entered into a formal custody sharing agreement, and when the respondent decided to move from New York to England, the petitioner filed a lawsuit for joint custody, the setting of a visitation schedule, and ancillary relief.

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cake on tableIn a recent opinion, a New York court considered whether the dismissal of a petition alleging that two guardians of a minor engaged in neglect and corporal punishment was appropriate.

In October 2016, the Administration of Child Services (ACS) initiated an Article 10 proceeding on behalf of a minor against her paternal uncle and grandmother. Under New York law, all matters involving neglect are governed by Article 10 and heard exclusively in Family Court. The petition alleged that the grandmother and uncle were charged with overseeing the child’s care pursuant to the Family Court Act and that the defendants failed to meet their duty. The petition also alleged that the defendants engaged in neglect and inflicted corporal punishment on the minor. More specifically, the petition stated that the grandmother commanded the uncle to strike the minor four times after the child allegedly touched a cake. The petition claimed that the child’s legs showed marks and bruising. Ultimately, the defendants admitted that they no longer wished to care for the minor or to have her in their home.

The defendants denied the allegations during an appearance in court. The minor was ultimately remanded to the care of the commissioner. During another conference that took place in January 2017, the attorney for ACS stated that the defendants would undergo classes on parenting skills and be allowed to undertake supervised visits with the minor. The uncle rejected this plan, indicating that he did not intend to serve in a parental role regarding the minor. The grandmother also rejected the plan, wishing to terminate her relationship with the child.

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parent and childUnder New York law, both of a child’s parents have rights regarding custody and visitation, as well as obligations regarding support. As the legal landscape regarding marriage changes and evolves, the definition of “parent” has also evolved. More than 20 years ago, the New York Court of Appeals held in Alison D. v. Virginia M. that only biological or adoptive parents have standing to petition for visitation. In the summer of 2016, the court overturned this precedent in Matter of Brooke S.B., allowing the former same-sex partner of a child’s biological mother to petition for visitation. The petitioner had a longstanding relationship with the child that continued for years after her relationship with the biological mother ended, and the court recognized that she could be considered a “parent” under the law.

Section 70 of the New York Domestic Relations Law states that “either parent” of a child may petition a court to make orders regarding custody and visitation rights. The statute does not, however, provide a distinct definition of a “parent.” In 1991, the Court of Appeals ruled in Alison D. that a “biological stranger to a child” is not a “parent” within the meaning of § 70 and therefore lacks standing to seek visitation rights.

The petitioner in Alison D. was involved in a romantic relationship with the respondent. They decided to have a child together, and the respondent conceived via artificial insemination. She gave birth to a boy in July 1981. The child took the petitioner’s last name, despite the lack of any legal relationship between them. The petitioner and respondent ended their relationship in 1983, but they worked out an agreement for visitation and support payments by the petitioner. This lasted several years, but eventually the respondent cut off the petitioner’s access to the child. The petitioner sought a court order under § 70 for visitation. Even though the child knew both the respondent and the petitioner as “Mommy,” the court denied the petition for lack of standing.

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Family WalkThe right of same-sex couples to marry has been the law of the land throughout the United State for almost two years, when the U.S. Supreme Court issued its decision in Obergefell v. Hodges. While the court noted in Obergefell that most states already allowed adoption and fostering by same-sex couples and gay or lesbian individuals, some states continue to prohibit it. The Nebraska Supreme Court recently issued a decision, Stewart v. Heineman, overturning a state policy prohibiting gay and lesbian people from serving as foster parents. While this ruling only applies to Nebraska, it is another important step forward for the rights of same-sex couples.

A federal district court struck down a Mississippi law banning adoption by same-sex couples last year, but no nationwide standard yet applies in this regard. A U.S. Supreme Court decision from 2016, E.L. v. V.L., held that states must recognize out-of-state adoptions by same-sex couples, but the Supreme Court has not considered the constitutionality of gay adoption or gay fostering bans within a state. A Nebraska policy regarding fostering therefore remained in effect after both Obergefell and E.L.

The Nebraska Department of Health and Human Services (DHHS) issued an administrative memorandum in 1995, titled Memo 1-95, directing the department not to make foster placements “in the homes of persons who identify themselves as homosexuals.” The memo further directed the department not to license such persons as foster homes. According to the Nebraska Supreme Court’s decision in Stewart, state officials had generally concluded that Memo 1-95 was unenforceable with regard to licensing.

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AdoptionAdoptions often end joyfully with the creation of a new family, but they often originate from tragedy. A child in an adoption proceeding may have been orphaned or removed from their birth parents’ home because of abuse or neglect. As happy as the adoption may be, the child is likely to have questions about their origins. New York law makes answers difficult to find for multiple reasons. Some of those reasons make sense in the New York of 2017, while others clearly originated in an earlier era. The principles that led to the establishment of these rules continue to influence New York’s family laws, particularly those involving child custody and child support.

Under § 114 of the New York Domestic Relations Law (DRL), records of adoptions involving an authorized adoption agency are sealed upon the completion of the adoption. Access to these records is almost entirely prohibited without a court order, which courts may only grant in very limited circumstances. A court clerk may issue a certificate of adoption to authorized individuals or agencies, but the certificate may only include a child’s new name, the names of the adoptive parents, and information about the adoption proceeding itself. It may not disclose the child’s pre-adoption name, nor may it disclose any information about the child’s birth parents.

The New York County Surrogate’s Court provided an overview of the history of this statute in footnote 34 of a 2007 ruling, Matter of Doe. The court noted that the statute, first enacted in 1924 and amended in 1938, “reflect[ed] in part the mores of the day.” The purpose of sealing adoption records, according to the court, included protection of the adoptive parents from interference by the birth parents, as well as protection of the birth parents’ privacy. Other reasons, however, included “shielding [the birth parents] from the humiliation of public knowledge of unwanted pregnancies or inability to support” and “shield[ing] the adopted child from the stigmatization of illegitimacy.” This type of rationale is, hopefully, less relevant in the 21st century than the 1920s.

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Choosing A NameFamily law cases in New York City can involve numerous complicated and difficult issues, requiring careful planning and preparation for emotionally trying proceedings. This is probably most true for proceedings involving the custody and care of children, which can occur in connection to a divorce or between parents who were never married. New York law allows parents and legal guardians to petition to change a child’s name. The process is far from simple, especially when someone seeks a name change in connection with a family law proceeding.

No specific legal standard exists for children’s names. A child commonly takes their father’s surname, but this is not required by law. Section 4132 of the New York Public Health Law establishes the form and content requirements for a birth certificate, but it does not expressly require the child’s name. As far back as 1987, the New York Times was reporting on changing social norms regarding baby surnames, largely related to women who do not take their husband’s name when they get married. Now that same-sex marriages are legally recognized throughout the country, naming conventions are likely to go through more changes.

Name changes are fairly common in divorces, such as when women want to return to their maiden name or another prior name. Children’s names potentially present greater controversy. The New York Civil Rights Law allows courts to order a name change for a minor, provided that “there is no reasonable objection” to the change and that the minor’s “interests…will be substantially promoted by the change.” The courts have delved further into these questions.

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Free speech doesn't mean careless talk^ - NARA - 535383Family courts, when dealing with disputes involving children, must consider a child’s best interests and rule in a way that protects the child. This can, at times, include orders restraining the parents and possibly other adults from making certain statements while litigation is ongoing. For example, a court may order parents not to discuss ongoing litigation with the children. The First Amendment to the U.S. Constitution sets very strict limits on a court’s power to prevent people from speaking on particular issues. A 2016 appellate court decision from Georgia examined this issue. The court overturned an injunction barring the parents from making any public statements about the case, including on social media, until the youngest child turned 18—i.e., after 10 years.

The First Amendment is very often misunderstood in public discourse. It only restrains the actions of the government with regard to private individuals’ speech. The U.S. Supreme Court summarized the First Amendment’s free speech protections in its 1972 decision in Grayned v. City of RockfordWhile the “government has no power to restrict [speech] because of its message,” the court noted “that reasonable ‘time, place and manner’ regulations…are permitted.” This means that government officials cannot prevent a person from saying something solely because they do not like what the person has to say, but they can prevent the person from shouting it through a megaphone outside someone’s house in the middle of the night.

Since the First Amendment generally only allows the government to restrain speech based on “time, place, and manner,” most efforts to prevent a person from saying something in advance—often known as prior restraint—are unconstitutional. In 1963’s Bantam Books, Inc. v. Sullivan, the Supreme Court stated that “[a]ny system of prior restraints of expression…bear[s] a heavy presumption against its constitutional validity.” The injunction at issue in the Georgia case was arguably a form of prior restraint.

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