New York Case Summaries

Attorney Steven Gildin provides case summaries for educational and informational purposes on a periodic basis. This information does not constitute legal advice. If you need legal representation in New York, please contact us to schedule a consultation.

APPEALS TAKE A LONG TIME…
NEW STUFF HAPPENS DURING THAT PAUSE…

As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render a record on appeal insufficient to review whether a child custody determination is still in the best interests of the child. In light of the new developments since the Supreme Court’s determination in June 2021 brought to this Court’s attention by the attorney for the youngest child, the record is no longer sufficient to review whether the Supreme Court’s determination regarding custody and parental access is still in the youngest child’s best interests.
Accordingly, under the circumstances, we remit the matter to the Supreme Court, Westchester County, for a reopened hearing, at which the new developments shall be considered, and thereafter a new custody and parental access determination as to the youngest child. In doing so, we express no opinion as to the appropriate determination.
Haddad v. Sassoon, – NYS3d – , 2025 WL 979776 (2nd Dep’t. 2025)

GOOD DISCUSSION ON THE AT TIMES CONFUSING ISSUE OF EQUITABLE ESTOPPEL EFFECT ON VACATING AN ACKNOWLEDGMENT OF PATERNITY

(when will trial courts adhere to the notion that hearings are required)

In 2019, the parties executed an acknowledgment of paternity, stating that the appellant is the father of the subject child. Thereafter, an order of child support was issued by the Family Court directing the appellant to pay child support.
In December 2022, the appellant filed petitions for paternity and to modify a prior order of child support, alleging that he was not the child’s father. In January 2023, the Support Magistrate, without a hearing, dismissed the petitions for failure to state a cause of action upon which relief can be granted. On February 6, 2023, the parties appeared before the Family Court in connection with the appellant’s petitions to modify prior orders of custody and visitation, wherein he sought to terminate his parental access with the child. When the appellant brought up his prior attempts to vacate the acknowledgment of paternity, the attorney for the child noted that the child viewed the appellant as her father. The court then determined that the appellant would have been equitably estopped from obtaining a genetic marker test to challenge his legal paternity, as well as equitably estopped from seeking vacatur of the acknowledgment of paternity, as granting him such relief would be contrary to the best interests of the child. Moreover, the court cautioned the appellant that even if he chose to sever his contact with the child, such would not serve as a basis for him to seek relief from his child support obligation. By order dated February 6, 2023, the court terminated the appellant’s parental access with the child.
On or about March 10, 2023, the appellant, in effect, filed a petition to terminate his child support obligation, contending that he had signed the acknowledgment of paternity because the mother falsely told him that he was the child’s father and he had since learned that he was not the child’s father. The parties appeared before the Support Magistrate on April 11, 2023, and the matter was referred to the Family Court to determine whether, inter alia, the appellant should be equitably estopped from obtaining the relief requested.
In an order dated May 2, 2023, the Family Court dismissed, without a hearing, the appellant’s petition to terminate his child support obligation, determining that he was collaterally estopped from seeking that relief based upon the court’s recent determination that he was equitably estopped from seeking a test to challenge his legal paternity, as well as equitably estopped from seeking vacatur of the acknowledgment of paternity. Thereafter, the appellant filed objections to the order dated May 2, 2023, and in an order dated June 28, 2023, the court denied the objections. These appeals ensued.
A signatory to an acknowledgment of parentage may challenge an acknowledgment of paternity more than 60 days after its execution by alleging and proving fraud, duress, or material mistake of fact (Family Ct Act § 516–a[b][iv]). If the petitioner proves to the court that the acknowledgment of parentage was signed under fraud, duress, or due to a material mistake of fact, the court shall then order genetic marker tests or DNA tests for the determination of the child’s parentage. However, no such test shall be ordered upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married person.
Where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial. The paramount concern in applying the doctrine of equitable estoppel in paternity and support proceedings is the best interests of the child. Before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest.
Where a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, Family Court Act § 516–a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact in the execution of the acknowledgment of paternity before ordering a genetic marker test. In the event the court determines that a valid ground for vacatur of the acknowledgment exists, the issue of whether the petitioner should be estopped, in accordance with the child’s best interest, from vacating the acknowledgment of paternity, must then also be evaluated at a hearing.
The doctrine of collateral estoppel precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point. It is a doctrine intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it. There are two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The question as to whether a party had a full and fair opportunity to litigate a prior determination, involves a practical inquiry into the realities of litigation.
Here, the issue of the appellant’s paternity was not actually litigated in connection with the prior proceedings held on February 6, 2023. The Family Court’s findings, made on that date, that the appellant, inter alia, would have been equitably estopped from seeking vacatur of the acknowledgment of paternity, were made without a hearing, during an appearance on the appellant’s petitions to modify custody and visitation, when, in response to the appellant raising the issue of his attempts to vacate the acknowledgment of paternity, the attorney for the child indicated that the child viewed the appellant as her father. Thus, contrary to the court’s determination, the doctrine of collateral estoppel is inapplicable.
Moreover, the Family Court erred in summarily denying the appellant’s challenge to the acknowledgment of paternity on the basis of equitable estoppel without first conducting a hearing on the issues of whether the acknowledgment was procured by a misrepresentation made by the mother regarding the appellant’s paternity and if so, whether the appellant should be estopped from challenging the acknowledgment based upon the best interests of the child.
Accordingly, we reverse the order dated May 2, 2023, insofar as appealed from, reinstate the petition, and remit the matter to the Family Court, Rockland County, for further proceedings on the petition.

Stephen B.J.B. v. Marcia N.S.C. – NYS3d – , 2025 WL 979935 (2nd Dep’t. 2025)

WE DON’T LIKE EACH OTHER
– TOO BAD, JOINT CUSTODY CONTINUES
BUT…
ALTHOUGH AT THE TIME OF HEARING, CHILD WAS 11 AND THEIR POSITION WAS ONLY A SMALL FACTOR, NOW THAT CHILD IS 15, THEIR POSITION CARRIES MUCH MORE WEIGHT
– SO THE PARENT KINDA WON ON THE FACTS OF BEST INTERESTS BUT THEN LOST BECAUSE TIME MARCHED ON

(seems unfair that a parent gets penalized just because the system is so slow)

In order to modify an existing court-ordered custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child. Although evidence of a hostile relationship between the parents indicating that joint decision-making is untenable is a change of circumstances, a determination that the parties have an antagonistic relationship without more, does not mean that an award of shared physical custody is inappropriate.
Here, the Family Court’s determination that a change in circumstances required modification of the prior order to protect the best interests of the child was not supported by a sound and substantial basis in the record. The limited evidence presented at the hearing that related to the parties’ relationship did not show that joint decision-making was untenable. Rather, in the years succeeding the prior order, the parties described several disagreements they had, for example, relating to summer camp or the child’s educational needs, which they resolved without judicial intervention.
To the extent that the Family Court found that the child had been exposed to substance abuse or incidents of violence while in the mother’s care, such findings were not supported by a sound and substantial basis in the record. On the latter finding, it was wholly inappropriate for the court to equate the mother’s acknowledgment that there was an argument in front of the child with domestic violence. Furthermore, contrary to the court’s finding, at no point did the mother admit to smoking marijuana in front of the child, rather she admitted pursuant to a court-ordered investigation that the child may have been inadvertently exposed to such conduct on one occasion. Notably, prior to the hearing, the mother voluntarily agreed to a court-monitored substance abuse assessment, which concluded that treatment was not indicated.
To the extent that the express wishes of older and more mature children can support the finding of a change in circumstances, that factor should not have been given significant weight under the circumstances. In particular, the child was less than 11 years old when the hearing was conducted and she was never interviewed in camera by the Family Court, which is the preferred method for ascertaining a child’s wishes.
Furthermore, even assuming, arguendo, that the father demonstrated a change in circumstances, the Family Court’s determinations that, based on the totality of the circumstances, it was in the child’s best interests to award the father sole legal and physical custody of the child and to limit the mother’s in-person parental access to five hours every other week and at such other times as the parties can agree after consultation with the child’s therapist were not supported by a sound and substantial basis in the record.
To these ends, we note that the best interests of the child generally lie with a healthy, meaningful relationship with both parents. Moreover, parental access is a joint right of the noncustodial parent and of the child. Thus, absent extraordinary circumstances, such as where parental access would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable parental access privileges.
As already discussed herein, some of the inferences made by the Family Court were plainly contradicted by the record. In yet another such example, the court made a finding that the mother appeared to want to classify her child with a learning disability to obtain free services even though the mother repeatedly and consistently testified that she supported the child’s evaluation based only upon the recommendation and at the impetus of the child’s teacher. The court also improperly relied upon the testimony of the child’s therapist, who was not qualified as an expert and who offered largely unfiltered hearsay.
Perhaps even more problematic, the Family Court relied heavily on what it described as the July 2019 sleepover incident as evidence that the mother was incapable of providing for the child’s emotional and intellectual development. To the contrary, while this so-called incident reflected the parties’ different parenting philosophies, the mother’s actions were well within the broad range of appropriate parenting conduct and therefore, it was an abuse of discretion to limit the mother’s parental access in reliance on that incident.
In sum, the Family Court erred in granting the father’s petition.
Nonetheless, under the circumstances, temporary physical custody should remain with the father. Due to the protracted nature of this litigation, the child is now approaching 15 years of age and has been, in effect, in the father’s sole physical custody for more than five years. Under the circumstances, keeping temporary physical custody with the father, while expanding the mother’s parental access as indicated herein, will promote the child’s stability. We are cognizant that reunification therapy or other professional counseling between the mother and the child may be necessary to reestablish their relationship, and we encourage the Family Court to arrange and supervise those services if appropriate.
Therefore, we remit the matter to the Family Court, Putnam County, for the appointment of a forensic evaluator to conduct evaluations of the parties and the child and a new hearing, including an in camera interview with the child, to establish an appropriate and liberal parental access schedule for the mother, to be conducted with all convenient speed.

Miller v. Norton, – NYS3d – , 2025 WL 979866 (2nd Dep’t. 2025)

SUPERVISED VISITS ARE OK, BUT COURT MUST SET SPECIFIC SCHEDULE

The court should have set forth a schedule for the mother’s supervised parental access with the children.

Pollack v. Slasten, – NYS3d – , 2025 WL 979880 (2nd Dep’t. 2025)