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Every county in New York maintains a Child Protective Services (CPS) agency to investigate suspected child abuse and neglect. The New York Office of Children and Family Services (OCFS) receives reports from legally-mandated reporters like doctors, nurses, and teachers, as well as the general public, and refers those reports to the CPS agency in the appropriate county. If local CPS concludes that abuse or neglect has occurred, it can commence an action to claim guardianship of a child. Last year, a court in Manhattan considered a petition by a parent to overturn a finding of “inadequate guardianship” by an administrative law judge (ALJ). Applying procedural rules set forth in Article 78 of the New York Civil Practice Law & Rules (CPLR), the court transferred the case to the Appellate Division.

According to Chapter 14, section E of the New York State CPS Handbook, “inadequate guardianship” occurs when a parent or guardian “fails to meet a minimum standard of care for the child within commonly accepted societal norms,” and this failure leads to “actual physical or developmental harm…or imminent danger of such harm.” Examples provided by the handbook include failing to know a child’s whereabouts outside of the home for long periods of time, substantially limiting a child’s activities, or “[e]xposing…the child to…illegal and/or immoral acts.”

The 2018 case before the New York County Supreme Court involved a petition under Article 78 of the CPLR. This article applies to proceedings referred to in other jurisdictions as writs of mandamus, in which a petitioner seeks to compel a government entity to correct an erroneous action. The statute identifies five questions a petitioner may raise, including whether a decision made after an evidentiary hearing was “supported by substantial evidence.” If a petitioner raises a question of “substantial evidence,” § 7804(g) directs the court to “dispose of such other objections as could terminate the proceeding.” If it finds that none of those issues have merit, the court must transfer the “substantial evidence” question to the Appellate Division.
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Children are entitled to support from their parents or guardians, and New York family law provides methods for ensuring that such support is available. A typical child support order remains in effect until a court orders otherwise, or until the child reaches a point where they no longer need support.

A New York City court recently considered a child support dispute, BT v. AM, involving an adoptive parent and a court-appointed guardian. The parent claimed that they were no longer obligated to pay child support because of the child’s “constructive emancipation.” The guardian argued that the parent was still entitled to receive an adoption subsidy from the government, and should pay that amount as child support. The court ordered the parent to pay that amount, and remanded the case to family court to review the parent’s continued eligibility for the subsidy.

marriage agreement

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When a marriage breaks down and you, as one of the spouses, must confront divorce, there are several decisions you’ll need to make. One of those is whether to litigate everything and let the judge decide, or whether to establish a marital settlement agreement with your spouse. If you decide to create a settlement agreement, be forewarned that these agreements are generally as binding and enforceable as any other legal contract. In other words, you should make sure that you understand exactly what the terms of your settlement agreement dictate before you sign, and be sure that the agreement that appears on paper is the one to which you thought you were assenting. To make sure the settlement agreement you sign is the agreement you need, be sure you have a skilled New York family law attorney on your side.

One of the ways that disputes can arise around marital settlement agreements is when there are things that are left unwritten. When a term is not included in the document, uncertainty can enter in and allow for disagreement. Take, for example, the settlement agreement case of E.B. and A.B. The Rochester-area couple began divorce proceedings in 2004. During that litigation, the couple created a marital settlement agreement. The agreement said that the wife would receive “rehabilitative maintenance” starting on December 1, 2007 and ending on November 30, 2020. The agreement did not state that the maintenance would continue until 2020 regardless of other events, but it also did not list any events that would trigger an early termination of the maintenance obligation, either.

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Today, the definition of “family” is wider-ranging than it’s ever been before. Along with that truth is the connected fact that the issues faced by the courts and couples going through divorce and other family law issues span a broader spectrum than in the past. However, even when facing a very modern set of facts, it is possible that extremely well-worn principles of law may decide the outcome. Even a dispute about frozen embryos may come down to long-decided principles of contract law. To understand the extent of your rights and your options if you encounter a divorce dispute, be sure to contact a knowledgeable New York City divorce attorney about your case.

If you and your spouse decide to utilize assisted reproduction technology, it is extremely important that you understand every part of any agreement you sign regarding the genetic material that may come from that process because, if a dispute should arise between you and your spouse, the courts will look first at what you agreed to do in the signed written document. A case very recently decided by the Appellate Division offers a real-life example of this concept. The case (whose outcome even made the pages of the New York Post) involved Yoram and Bat-El, who married in Israel in late 2011. The husband was in his 50s; the wife was in her 40s. Desiring to have children, they pursued in vitro fertilization in Israel but were unsuccessful.

child custody

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In child custody cases, New York law requires judges to use the “best interests of the child” standard. Chances are you’ve heard that phrase. But what, really, does that mean for you in your child custody case? The reality is that it can mean different things in different situations. The things a judge will consider, and the weight the court will give them, can vary depending on certain factual details like a child’s age and maturity. If a child is older and appears mature to the judge, that child’s express wishes will go a long way in deciding what is in his or her best interests. His or her wishes, however, will not automatically decide the case; the court will still look at many factors. To make sure that you are properly prepared to protect your interests and the interests of your loved ones in your custody case, make sure to retain an experienced New York child custody attorney.

A recently decided New York City case involving a Brooklyn family provides a real-life example of how courts will decide custody cases involving mature, older children. The parents in the case were married in 1997, and the husband filed for divorce 15 years later. The couple had one child, born relatively early in the marriage. Eventually, law enforcement arrested the mother for embezzling more than $80,000 from the PTA at the daughter’s school, where the mother was the treasurer. After failing to make required restitution payments, the mother was eventually incarcerated for a time. After her release, the mother sought and obtained an office in the PTA at the daughter’s new high school, only to resign after the media discovered her troubled past.

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For parents going through a divorce, going through the legal process can be very challenging. One way to minimize some of the stress and difficulty can be to work out as many issues as possible through an agreement with your spouse. Of course, it is almost always a wise idea to consult and retain an experienced New York child custody attorney before you agree to anything that may affect your rights or your relationship with your children.

Settlement agreements are generally enforced in accordance with whatever the couple put down on paper. However, what happens if you agree to live a certain lifestyle and practice a specific religion (or sect of a religion) but then experience changes in your life? That was the issue before the Appellate Division recently.

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Custody 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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lgbtq parents

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New 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.

child custody

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Child 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.


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As 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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