Articles Posted in Child Custody

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In an earlier post, we discussed some of the issues that may arise when a sperm donor seeks to establish the parental rights of a child. One of those issues arises when a sperm donor seeks to establish parental rights. This is complicated by the fact that New York does not generally enforce contracts between sperm donors and the couples using the donor’s sperm on the basis that such contracts are against public policy.This post follows up on that topic with a discussion of a recent case issued by a New York court, which acts as the most recent example of how courts treat the parental rights of sperm donors versus the woman (or family) who gives birth to the child.

The Facts of the Case

A same-sex lesbian couple arranged to have an acquaintance provide them with a sperm sample so that the couple could have a baby. Since the agreement did not go through a sperm bank or a licensed medical professional, the couple drew up their own contract without the assistance of legal advice. The contract waived the donor’s parental rights, as well as any rights to visitation. The contract also waived the couple’s right to seek child support from the donor.

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Child custody issues are often the most hotly contested area in divorce and family law cases. It would stand to reason, then, that New York child custody issues are not limited to situations in which the biological parents of the child are in a relationship – or even know each other.With the advent of recent medical developments over the past few decades, couples who thought they may never be able to have children are able to give birth to a child through various means. Of course, this includes same-sex couples relying on donated sperm. However, with these recent developments, child custody issues have arisen, requiring New York courts to come up with ad hoc methods of resolving these child custody conflicts.

As a general matter, if someone goes through a doctor for the artificial insemination process, there is little to worry about in terms of the sperm donor later seeking custody of a child. Similarly, a sperm donor probably has little to worry about the parents seeking to enforce a paternity action. This is because the contract between the sperm donor and the business or organization accepting and storing the sperm provides for the termination of any parental rights the donor may otherwise have. Thus, to try to ensure that there will not be any problems in the future, parents who hope to conceive through artificial insemination are advised to use an official medical provider to do so.  However, it is possible that if somehow the anonymous donor was identified that the court might allow a paternity action to be maintained against him.  How that case would play out is not clear at this time under New York law.

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It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.New York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”

An Example

Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.

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When going through the process of a divorce or family law dispute in New York, it’s important to make sure that you fully understand what your rights and responsibilities are as a client. Themore you know, the more you can make an informed decision about your future. Therefore, a divorce lawyer will always provide his clients with a document known as the “Clients Rights and Responsibilities” form. The document is prescribed by the Appellate Division, and it’s provided at the initial conference, before any retainer agreements are signed.  I am attaching a link to the complete Statement of Clients Rights and Responsibilities here, while this blog is intended to highlight some of the features.

When I give my clients the “Clients Rights and Responsibilities” document, it’s intended to give that individual not only an insight into what they’re entitled to by law, but also what is expected from them. Of course, it’s always possible for my clients to come to me with any questions they might have about their rights or responsibilities, or the case that they will be addressing with me in the future. It’s well within the rights of any family law client to speak to their divorce attorney, child custody attorney or family lawyer if they have any concerns or questions about the manner in which their case is handled.  I endeavor to make myself available.  One of the rights people have is that an attorney never has the right to refuse your case based on creed, color, sex, orientation, origin, race, or disability. Continue reading ›

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In today’s society, it is very common for families to move between states, especially when a couple’s children are young and parents are still developing their careers. While it has become easier over the past few decades for families to move between states, this situation presents a potentially complex situation if the couple divorces and one of the parents moves out of the state.Years ago, courts in different states were routinely entering conflicting orders in New York child custody cases. For example, a New York court may make an initial determination, only to have the non-custodial parent move out of the state and file a case in that court for a modification of the order. Under the Full Faith and Credit Clause of the U.S. Constitution, the court in the non-custodial parent’s new home state should defer to the New York court; however, in practice, that was not always the case.

The result was the eventual passage of the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (UCCJEA). The UCCJEA developed a system that has since been adopted by 49 states, including New York, which courts use to determine which state has jurisdiction over a child custody case.

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While any person’s definition of “family” might be unique to them, it’s important to remember that it’s the court ofNew York’s delineation that matters most when decisions are to be made around child custody, parenting time, and visitation. As a child custody attorney, I’ve been involved with several complex cases around how a child should be supported and raised by people within their family. As I have reminded my clients in the past, up until now, only a “parent” – as dictated by the courts, will be able to petition for visitation or custody according to the outlines of Domestic Relations Law § 70. Perhaps one of the issues that makes this idea so complicated, however, is that Domestic Relations Law § 70 does not define what a “parent” is. This means that the courts need to determine that for themselves.

In issues presented to the courts of New York, except for in the case of “extraordinary circumstances” a parent should prevail over a non-parent in a custody battle. The law, up until now, is that for unmarried couples, partners that have no biological adoptive connection with the child had no standing to seek parenting time and custody. However, extraordinary circumstances like abandonment of the child, surrender of parenting rights, and more can alter the situation. The court of Appeals in New York highlighted the definition of parentage in New York in the case of Alison D. v Virginia M., 572 NE2d 27 (N.Y. 1991). However, this outline has become less applicable in a modern world, where the family relationship is now more varied and complex than ever. The case that presented the previous definition of “parent” was established in 1991, and since then, times have changed significantly. Continue reading ›

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If you and your partner have been hoping to have a baby, then the potential new law in New York could be the answer. After all, there are plenty of reasons why a couple might be unable toconceive a child on their own. Some people experience issues in conceiving, while same-sex partners are forced to seek out alternative options to the traditional method.  Adoption is often the answer.

For many, surrogacy can seem like the simplest way to create a family. However, the truth is that this process isn’t nearly as straightforward as it might seem. Not only is paying for surrogacy incredibly expensive, but the legal guidelines currently in place within New York mean that couples could be penalized for entering into a contract with a surrogate.  The article by Sheryl F. Colb in Verdict, Legal Analysis and Commentary from Justia on November 8, 2017 provides a thorough analysis of the topic.  This blog summarizes and in spots supplements the article

Understanding Surrogacy Law in New York

From a medical perspective, there are two types of surrogacy that can be considered by those searching for alternative methods of conception. Traditional surrogates are women who are inseminated with sperm to fertilize their own egg. This means that the resulting child is biologically related to the surrogate parent. On the other hand, “gestational” surrogates are implanted with an embryo that is created in a lab using the egg and sperm of the intended parents. In the case of a gestational surrogacy, the surrogate is not related to the child. Continue reading ›

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When parents decide to bring an end to their relationships together or to their marriage in divorce, there areseveral complicated concerns that they’ll need to think about. Just one of those issues, involves how parenting time and custody should be handled.  When a court needs to decide the issues the court will look at best interests of the children.  Sometimes, parents can simply come to terms about child custody and parenting times on their own, through the process of negotiations through their child custody lawyers, mediation, or collaborative law. However, as a family law attorney, I’ve also seen many instances wherein parents have needed to turn to the help of the court to determine how a child’s care should be divided between spouses.

One common issue that can cause complications in deciding how a child’s custody and parenting time should be managed, is the presence of drugs, alcohol, or issues with sobriety in the lifestyles of one of the parents involved in the divorce. If a parent is known to have issues with sobriety, then it may be the court struggles to determine whether exposure to that parent is in the best interests of the child. Sometimes, visitation may be limited to “supervised” visitation, depending on whether or not the court believes that unsupervised visitation might harm the child in some way.  But also getting sober can be a significant positive to allow for a custody and parenting time order to be revisited.  Continue reading ›

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When it comes to addressing difficult topics during a divorce or family law matter, there are options available that allow for asolution beyond litigation. When it comes to parenting time, visitation, and custody arrangements, many parents prefer to use a method of alternative dispute resolution known as mediation. With mediation, it’s possible to come to terms about the future of a child, or children, without leaving decisions entirely in the hands of the court. Additionally, because mediation is naturally less combative than litigation in most cases, it can allow for some semblance of a relationship to be preserved between the parents in a case.

Though I work as a divorce attorney and child custody lawyer for my clients here in New York and Long Island, I can also offer them alternative options for dispute resolution in the form of mediation and collaborative law. When my clients choose to engage in mediation, the first thing I like to tell them is that there aren’t necessarily any hard and fast rules about how mediations need to proceed. Instead, each mediation session is adjusted according to the needs of the couples, individuals, and families in question. Subsequently, the dynamics of the mediation will also be unique. Often, I’ll start by asking whether the couple have already discussed the issue of parenting time and custody, and whether they have any ideas on how an agreement should look. Continue reading ›

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After taking the time to in my last blog series to discuss the ins and outs of divorce litigation, I hope to share more ofmy experience in the world of family law by turning to some blogs about mediation, my favorite method of dispute resolution. Most of my mediated cases involve divorce, however, it’s also possible to use mediation as a solution for coming to agreements that do not including divorce as well. For instance, mediation can be particularly useful for people who want to address family law issues like child custody and parenting times without discussing divorce. Mediation can also be used for couples that want to be legally separated, or make pre-nuptial or post-nuptial agreements.

The principles that are addressed when mediating parenting time and custody within a divorce, and outside of a divorce are often the same. However, the mechanism that turns the agreements made within mediation into binding orders can be very different for unmarried couples. Usually, it’s expected that the Supreme Court will incorporate a Stipulation of Settlement for a divorce or Separation Agreement into the Judgment without the need to see parties in court.  My engagement with the couple will provide that after the settlement agreement is signed I can draft and submit the uncontested papers to the court for them.  For the purposes of bringing the papers through the court system my name will go down as attorney for the plaintiff, but it is understood that I am neutral between the couple.  The reason I can be listed as the attorney for the plaintiff in that instance is because there are no remaining issues of contention between them since we settled the case by the Separation Agreement.   Continue reading ›

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