Articles Posted in Child custody & visitation

Family 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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Family 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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The U.S. legal system has made numerous recent advances regarding the legal recognition of “non-traditional” family relationships. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges struck down laws prohibiting same-sex marriage across the country. This has led to changes in the law regarding the custody rights of people who have helped raise a child but are not a biological parent of the child. The New York Court of Appeals issued an important ruling in 2016 that effectively expanded the definition of “parent” to include same-sex partners of a biological parent. In early March 2017, a New York court granted custody of a child to three people who had raised the child together while involved in a committed polyamorous relationship—sometimes referred to as a “throuple.” The judge cited the child’s own statements in the ruling, noting that the child knows “two women as his mother” and that all three had raised him “in a loving environment.”

Prior to 2016, New York law was based on a 1991 Court of Appeals decision, Alison D. v. Virginia M., which held that someone who is not a child’s biological parent lacks standing to sue for custody. The case involved a lesbian couple who had a child through artificial insemination. The respondent gave birth to the child, and she and the petitioner “jointly cared for and made decisions regarding the child” for several years. After the relationship ended, the respondent gradually restricted the petitioner’s access to the child until she was cut off entirely. The petitioner sued for custody rights, but the court held that she lacked standing as a “parent” under § 70 of the Domestic Relations Law. A dissenting justice criticized the court’s reliance on “biology as the key to visitation rights.”

The dissent in Alison D. noted that the holding would “affect a wide spectrum of relationships” beyond the millions of children of same-sex parents, such as step-parent relationships. Obergefell dealt with some of the issues brought up in Alison D. by effectively legalizing same-sex marriage nationwide. The Supreme Court held that the Fourteenth Amendment’s Due Process and Equal Protection Clauses allows same-sex couples to marry. In August 2016, the New York Court of Appeals reversed Alison D. in two consolidated cases, Matter of Brooke S.B. and Matter of Estrellita A. The court noted that Obergefell specifically mentioned the benefits of marriage equality for “the children being raised by those couples.”

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The New York family law system was built on an assumption that children resulted from a union of one female and one male parent, but social and technological changes have rendered this view far too narrow. Assisted reproductive technology (ART) allows a parent to conceive with the help of a sperm donor. While some states have enacted laws addressing ART, the rights and obligations—or lack thereof—of a sperm donor regarding the child remain unclear in many cases. Two court decisions from 2016 show how difficult this issue can be. In one case, a court held that a man who donated sperm to a lesbian couple is not liable for child support. Another court ruled that a sperm donor has parental rights to the child.

State laws regarding establishment of parentage bear many common elements. Most states presume that a husband is the father of a child born to the wife during the marriage. An unmarried father can claim paternity of a child, or a court can order genetic testing of an alleged father. Several decisions from the U.S. Supreme Court, including 1968’s Levy v. Louisiana, invalidated state laws that treat “illegitimate” children differently than children born to married parents. These decisions probably helped pave the way for many forms of ART.

ART laws are not consistent across the states. Section 702 of the Uniform Parentage Act (UPA) of 2002 expressly states that a donor is not a legal parent of any child conceived as a result of the donation, but New York has not enacted the UPA. New York law states that a child “born to a married woman by means of artificial insemination” is legally the child of the woman and her husband, provided that a licensed medical professional performed the procedure. It says nothing about same-sex married couples or ART performed without medical assistance. Court decisions in New York have mostly found that sperm donors are not legal parents.
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Disputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).

Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.

The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.

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New York law regarding paternity is closely related to laws regarding the marital relationship. This includes a strong presumption that the husband of a woman who gives birth is the father of the child. State law allows people to rebut this presumption in many cases, such as if someone else claims to be a child’s biological father. A court may determine, however, that maintaining the status quo is in a child’s best interest, even if the person the child calls “Dad” is not, biologically speaking, the child’s dad. In this sense, the paternal relationship is more important than paternal biology. Courts at both the state and federal levels have addressed this issue recently.

Children Born During Marriage

The presumption of paternity in marital relationships can cut both ways, so to speak. Paternity brings with it a wide range of legal obligations to support a child, which some people welcome, while others do not. An individual may claim paternity of a child born to a mother who is married to someone else, or a husband may try to disclaim paternity if he suspects that he is not the biological father. Either way, state law sets a very high bar for anyone challenging the presumption of paternity, requiring clear and convincing evidence. The ultimate determining factor, regardless of the evidence presented, is the best interest of the child.

Children Born out of Wedlock

When a child is born to an unmarried mother, no presumption of paternity applies. State law prohibits the inclusion of a father’s name on a birth certificate unless that person has signed an acknowledgement of paternity, or a court has entered an order finding that the person is the child’s father. If a child’s mother and the acknowledged or adjudged father get married after the child is born, under New York law the marriage “legitimizes” the child.

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New York law sets a very high bar for a non-parent, including a grandparent, who is seeking custody of a child. In order to deprive a parent of custody, a non-parent petitioner must show that the parent has expressly surrendered custody or demonstrated near-total indifference to the child. State law largely restricts standing to bring a custody suit to child welfare officials, who must demonstrate abuse or neglect, and grandparents, who must show “extraordinary circumstances.” The Appellate Division recently heard a mother’s appeal of an order awarding custody to the child’s paternal grandparents in Suarez v. Williams. It reversed the family court’s order, finding that the grandparents failed to meet the legal standard for custody.

The mother gave birth to the child in August 2002. She had two daughters, who were six and nine years old at the time and who had always lived with her. The child went to live with his paternal grandparents a few days after he was born, but the mother still saw the child several times a week. The father moved to Massachusetts when the child was two, and he lived there from that point on. When the child was about four years old, in 2006, the grandparents purchased a trailer and placed it across the street from their home in Barneveld. The mother lived there with her daughters and was able to see the child much more often.

The grandparents moved to Syracuse in 2006 and enrolled the child in school, but he saw his mother several times a week and stayed with her on the weekend. The grandparents moved the mother’s trailer to Liverpool, much closer to their home, in late 2008. The mother informed the grandparents in May 2012 that she planned on having the child live with her full-time and enrolling him in the school district where she resided. The grandparents filed a petition for custody. After a hearing, the family court granted joint legal custody of the child to the grandparents and the child’s father, awarding primary custody to the grandparents and visitation rights to the parents. The mother appealed.

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Parents have a fundamental right to raise their children, and to make decisions regarding their health, education, and welfare. This includes the right to decide whether other individuals, including other family members, may visit with the children. New York law gives parents broad discretion to make these decisions. Grandparents may petition for visitation rights, but only in limited circumstances. A New York appellate court recently reviewed the legal standard for an order granting visitation rights to grandparents in Troiano v. Marotta. The court affirmed an order denying the grandparents’ petition based on two issues:  standing to sue and the child’s best interest.

According to the U.S. Supreme Court’s 2000 ruling in Troxel v. Granville, if a parent is generally fit to make decisions for a child, courts must give “special weight” to their decision to deny visitation rights to a non-parent. Troxel struck down a Washington state statute that allowed anyone to petition for visitation rights, and it authorized courts to grant visitation rights if they found that visitation would be in the child’s best interest. The case specifically involved the paternal grandparents of two children who sought to continue their relationship with the children after their son, the children’s father, committed suicide. The children’s mother informed them that she was limiting their visits with the children, and they filed suit under the visitation statute.

The Washington Supreme Court held that the statute “unconstitutionally infringe[d] on the fundamental right of parents to rear their children.” The U.S. Supreme Court agreed, citing the Due Process Clause of the Fourteenth Amendment. It held that the lower courts should have given “special weight” to the mother’s decision and noted that she did not seek to cut off access entirely. The court did not define “special weight,” but it seems to indicate a high level of deference. State laws regarding grandparent visitation have had to adapt to this ruling.

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A mother appealed an order restricting her access to her two teenage children to supervised visits, arguing that the court failed to follow proper procedure and therefore deprived her of due process. The Appellate Division ruled in her favor in Matter of Damian D., et al., based largely on the fact that the mother already had an order for unsupervised visitation, issued under Article 6 of the New York Family Court Act (FCA). The family court issued the supervised visitation order during an Article 10 proceeding brought by the Department of Social Services (DSS), in which the mother was not a party and therefore did not have authority to modify the Article 6 order. The appellate court reversed that portion of the family court’s order and remanded the case.

The case involves a complicated set of family relationships and court orders. The mother had two children with the father: a son, Damian, and a daughter, Dayinara, who were 16 and 15 years old, respectively, at the time of the hearing at issue in the appeal. The mother had three younger children, and the father had one child, born in 2008, with his spouse. In 2011, a court awarded sole custody of the teenagers to the father in an Article 6 proceeding. It awarded the mother visitation on two consecutive weekends out of every three-week period, as well as holiday and vacation visitation. The mother testified that she exercised visitation consistently until November 2012, when DSS removed her three younger children from her home. She continued unsupervised visitation with Damian after that, but Dayinara declined to participate.

In April 2013, DSS commenced Article 10 proceedings against the father and his wife. They removed Damian, Dayinara, and the youngest child from the home and placed them with the youngest child’s maternal grandparents. The court sent notice of a placement hearing to the mother as a “non-respondent parent” under § 1035(d) of the FCA. The hearing took place shortly after the same court had conducted a hearing in the Article 10 case involving the mother and her three children, at which point it restricted her to supervised visitation. At the hearing involving the teenagers, DSS did not request supervised visitation for the mother with Damian and Dayinara, noting that the mother was already subject to an Article 6 order. Counsel for the children stated that the teenagers were old enough for unsupervised visits. Nevertheless, the family court issued a temporary protective order against the mother and limited her to visits supervised by DSS.

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Children are entitled to support from their parent(s) or guardian(s) (or “parents” as a shorthand) until they reach the age of majority, or until one or more specific events occur. They are also obligated to abide by their parents’ decisions regarding their health, education, and welfare. Emancipation is the process by which a minor may legally separate themselves from their parents, meaning that they are no longer subject to their control and also no longer entitled to their support. New York, unlike many states, has no formal emancipation procedures, but state law identifies situations in which a minor may be deemed emancipated. The issue may arise in New York when a parent seeks to terminate a child support obligation for an emancipated child. The parent has the burden of establishing that the child meets the legal standard for emancipation.

In about half of the states in the U.S., a minor may petition a court for an emancipation order. In states without a defined procedure for emancipation, courts may make a determination based on the totality of the child’s circumstances. Emancipation does not allow a child to engage in acts with a specific, legally-defined age limit, such as voting or enlisting in the military (age 18), or buying or consuming alcohol (age 21).

Many states only require parents to provide financial and other support to their children until they reach the age of majority. In New York, the obligation continues until the child turns 21, unless the child marries, joins the military, or is emancipated before then. If a child receives public assistance, the parents may be obligated to reimburse the state. A New York court may consider emancipation in terms of the child’s ability to live independently, which releases the child from the parents’ authority, or in terms of the child’s abandonment of the parents, which releases the parents from further support obligations.

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