autumn leavesIn New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave.  If there is domestic violence, a court might have the child leave via a stay away order of protection.  If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.

However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.

In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.

Continue reading

broken videotapeDuring a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

Continue reading

It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s orspy call your spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

Continue reading

wedding

Residency requirements to obtain a divorce exist so that the person filing for divorce can’t simply choose the state with the laws they want, move to that state, and then sue for divorce. Those who move to New York without their spouses cannot immediately sue for divorce on the grounds that their marriages have irretrievably broken down. They must wait two years, at least according to at least one trial court in New York.  Whether Appellate Courts would agree and come to the same conclusion is an open question but this article will relay how the trial court came to it’s conclusion.

In Stancil v. Stancil, the court considered whether New York’s no-fault divorce statute created a cause that would reduce a divorcing spouse’s residency requirement from two years to one. In New York, either spouse must live in the state continuously for two years or continuously for one year when certain conditions are present. Under Domestic Relations Law § 230 (3), one condition for meeting the latter requirement is when the cause for the divorce happens within the state.

In the case, the husband lived in Virginia and objected to having a divorce in New York, since the wife had only lived there for 14 months before filing. The wife argued that the divorce could proceed in New York because the basis for the divorce was the irretrievable breakdown of the marriage, and this was a cause for the divorce that happened within New York.

Continue reading

When a custody case is brought to a New York family court, the law requires the papers to be served to the other Summons Doorside, often in the form of a summons and petition. It is up to the parent that is filing the case to ensure that the other parent in the custody argument receives the papers – generally through in-hand delivery. Ensuring the service of papers is essential, as the law recognizes that there are few things more important in child custody cases than ensuring that every person entitled to make a claim on the behalf of the best interests of the child will receive notice of the proceedings taking place. Importantly, the law dictates that services of a petition and summons should be given at least eight days before the first court appearance is required of the other party. However, in practice, it is worth noting that regardless of how a respondent may receive the notice to attend court – so long as they attend and admit that they were served the papers, then the court will be given jurisdiction, and have the right to proceed with the case.

In cases of custody, visitation, or other matters brought before the family court, I often find that the case is started using an order to show cause, instead of a summons, and a petition. While the petition underlines what the person presenting the case to the court wants to address, the order to show cause specifies how service should be addressed.  When service is directed pursuant to the Order to Show Cause, how to serve the papers is spelled out by the judge who signed the order.  It takes the guess work out of service, however, it then becomes important to precisely comply with the method and timing of service that is directed. Continue reading

Issues of parenting in child custody and visitation cases are often very complicated, as they consider a wide range ofParentsPJS factors when determining the best interests of a child. After all, it is the responsibility of the New York court to ensure that their decisions regarding custody orders are made according to the needs of the specific children, or child involved in the case. Because of this, before a final decree is declared in a dissolution, divorce, or custody case, the court of New York might require parents to complete a course of Parental education which may be different and cover different matters depending on the nature of your circumstances.

Although the lessons can be different in parental education classes in regards to such things as format, the general idea of all parent education classes is to help parents separating from a partner or spouse to better understand the way their divorce from an ex-partner might affect their children. This education therefore ensures that the parents have the skills and resources necessary – regardless of whether they are a non-custodial, or custodial parent – to provide the appropriate care for their child, and help them move through a transitional period in their lives with as little distress as possible. Continue reading

This blog article will discuss the pros and cons of overnight parenting time to the non-residential custodial parent on Businessman Childrenschool nights.  Discovering a schedule for parenting time or child visitation that works for both parties involved in a divorce or child custody case, as well as the children in question can be one of the most important things a single parent does. After all, child custody cases or divorce is difficult enough upon existing family dynamics, without the confusion of an ever-changing and disruptive visitation schedule adding extra problems into the mix. Whether drafting an initial example for a possible parenting time plan, or attempting to make sense of the schedule that the court has presented to you, it’s crucial to remember that different scenarios work better with different circumstances. Ultimately, the visitation that is ordered by the court, and the plans you come up with through mediation and other measures, should reflect the best interests of the children.

Although each family is unique, there are some arrangements in the world of custody that have gathered more popularity than others – remaining a favorite of many family court counselors and parents who choose to develop their own parenting plans. Indeed, I often see many parents opting for the most common “alternating weekend” schedule, with some modifications here and there designed to cater for specific families. However, parenting time schedules are much more flexible than you might think, and there are other options available when it comes to meeting the individual needs of each unique family. For instance, you might find that your ideal schedule allows for extended weekend visitations that permit the children to have more time with the non-custodial parent. On the other hand, you might even look into the possibility of mid-week overnight visitation.  However, sometimes that might not be in the best interest of the children.  Whether or not overnight visitation on school nights is appropriate really depends on the specific family. Continue reading

When a New York couple undergoes a divorce, it’s natural for their financial circumstances to change. After all, JudgeReadingseparating partners are moving from a single-household environment, to a situation where they each must pay their own bills, rent, and expenses.  Or as the couple moves apart emotionally, while still living together they might not be taking care of their financial obligations to each other and the household.  The divorce may draw attention to the fact that one spouse has expenses, such as a mortgage, that they are unable to afford by themselves, and pendent lite maintenance awards help that individual to cover their basic expenses and maintain a particular lifestyle until the divorce is formally settled. Commonly, in a Pendente Lite award, the spouse with the greater income might be required to provide monthly payments to the spouse with less income, or pay for certain bills. Pendente lite can also commonly apply to payments of attorney fees, child custody and temporary child support.

Determining the amount to be awarded in a pendente lite case can be complicated, as it depends on a number of crucial factors to be addressed by the court.  There is a formula for pendente lite maintenance that courts are supposed to follow or enumerate specifically why the court deviated from the formula.  Before the first enactment of the formula for Pendente Lite maintenance in 2010, which law was updated in 2015, the foundation for determining the appropriate level of pendente lite support, a court would look at the needs of the dependent spouse in maintaining a reasonable standard of living, as well as the means held by the supporting spouse, and the level of income required for each spouse to remain comfortable until the finalization of the divorce. Continue reading

Although divorce lawyers are required to remain current with their knowledge in all areas involving family law, this FinancialNeutraldoesn’t negate the value of accessing external insight from other professionals during a divorce mediation or collaborative law procedure. I often find that divorcing couples seem unsure of their rights regarding financial matters during a divorce, and may be unaware of the financial implications posed by different settlement options. Just as a child specialist can be effective in helping couples to navigate the complexities associated with child-centric cases, a financial neutral can be beneficial in providing guidance regarding financial concerns. Specifically, financial neutrals can be particularly helpful in answering the question of how both sides in a divorce can manage the transition from one household, to two households, in a way that maintains financial stability.

Unlike collaborative cases – which often involve a team of professionals, most mediation sessions involve a divorcing couple, and a mediator. However, this doesn’t mean that mediation, like collaborative law, cannot be supported by independent parties. In fact, mediating coupes are regularly advised to seek out review attorneys who can review their mediated agreement and help them understand their rights. In the same vein, there’s nothing preventing other professionals from joining the mediation for the best interests of both parties involved. After all, during a litigated case, other experts are frequently retained and court ordered. In collaborative cases, financial neutrals, and neutral divorce coaches usually make up vital parts of the team. Continue reading

Matters of family law are almost always more complex when they involve children. This is one of the many Young Couplereasons why a large number of parent’s attempt to resolve disputes and concerns through amicable legal methods such as mediation and collaborative law, in an effort to avoid some of the frustration and turmoil that can result through litigation. Sometimes, in order for a mediation or collaborative case to have the most successful impact in any given situation, it may require the input of additional input beyond that given by the neutral mediating party, and any collaborative lawyers present. In fact, many mediators and collaborative lawyers actively advise working alongside other experts during a negotiation-friendly discussion of child custody and parenting time issues whether in the context of a divorce or not.

One of the many valuable experts involved in collaborative and mediation cases for parents, is a child specialist. These individuals are often engaged in an attempt to assist with easing the emotional transition and friction involved in making decisions based on parenting time, custody, and other highly significant family matters. Child specialists are unique in their ability to offer significant value to many cases in the form of additional specialized knowledge, techniques for dispute resolution, and more. While child specialists are referred to most commonly in the context of collaborative law, they can also be used to positive effect in mediation. Continue reading