Little child play with book and glassesPreviously, I have touched upon the rights of grandparents and non-parents in child custody and visitation or parenting time cases against parents in New York.  In my years of practice in New York City, the surrounding areas, and as a Long Island Child Custody Lawyer, I have needed to deal with these issues a number of times.  The purpose of this article is to further shine a light on the standard that the law outlines that courts should use in deciding these cases.

In order for a parent to be able to prevail against a non-parent to be awarded by a court custody or guardianship of a child, the court must find that extraordinary circumstances exist.  This standard was announced by the New York Court of Appeals in the landmark case of Bennet v. Jeffreys, 40 NY2D 543 (1976) which remains the law in New York today.  Over time, precedents decided since have helped clarify situations in which these extraordinary circumstances are deemed to exist.  The extraordinary circumstances were exemplified as:  unfortunate or involuntary disruption of custody over an extended period of time; surrender; abandonment; persisting neglect; unfitness or comparable situations.  For a non-parent, such as a grandparent, relative or family friend, to be able to proceed with the custody or guardianship case, a court must first find that these extraordinary circumstances exist.  This gives the non-parent what is called “standing” to have the case heard by a court.

If standing by the non-parent is not found to exist in the cases particular circumstances, then the case must be dismissed.  If, however the extraordinary circumstances are found to exist, then the court needs to decide whether the best interests of the child are served by awarding custody to the parent or the third party.  The Bennett v. Jeffrey’s case was guided by the principle that parents have a fundamental right to raise their own children and children have the right to be raised by their own parents, except in certain circumstances.  Continue reading →

HandcuffedJuvenile delinquency cases are handled in the New York Family Courts.  If a child is determined to be a juvenile delinquent, the court is there to issue an order that not only is designed protect the community, but is also there to consider the needs and best interest of the juvenile delinquent since he or she is a child.  Right away, the difference between adult criminal defendants and juvenile delinquents is apparent since the best needs of the juvenile delinquent are included as a proper consideration in the purpose of article 3 of the Family Court Act, the juvenile delinquent article.  I have found in my practice all around the New York City and surrounding areas as a criminal defense attorney and Long Island Family Law Lawyer that there are nuances in handling juvenile matters.

Juvenile Delinquents are children over seven and under sixteen that are found to have done an act, which if committed by an adult would be a crime.  The treatment is given either because the juvenile is to be considered not criminally responsible because of his or her infancy or the case was removed from a criminal court to the family court.  Generally, the same statutes of limitations that apply to adult criminal proceedings apply to juveniles except for certain designated felonies which also must be commenced before the respondent’s eighteenth or twenty first birthdays depending on the felony.  The criminal procedure law is not applicable to juvenile delinquency proceedings except in certain instances.  For example, the Family Court Acts specifically provides that double jeopardy is also applicable to juvenile proceedings.  The Family Court Act also specifically requires that the defenses outlined in articles thirty five and section 30.05 of the penal law apply to juvenile delinquency cases.

When an alleged juvenile offender is arrested they are only fingerprinted if they are certain ages and are accused of certain felonies.  The specifics ages and charges for which fingerprinting apply are outlined in the Family Court Act Section 306.  The trier of fact in a juvenile proceeding is a judge.  There are no jury trials in Family Court.  The Family Court Act dictates the applicable rules of evidence.  The burden of proof, like for adults, is beyond a reasonable doubt which is the highest burden in our justice system.  If the Respondent is found to have committed a juvenile delinquency act beyond a reasonable doubt then the case shifts to a dispositional hearing.  The Respondent might be conditionally discharged, put on probation, or placed in custody among other alternatives.  Again the needs of the Respondent and safety of the community are weighed. Continue reading →

Divorce HeadsTrials and hearings, in New York divorces, can be on the topics of grounds, custody, support and equitable distribution.  While the majority of cases settle prior to trial, many trials are still necessary on some or all of the issues.  Although other hearings are possible, such as on contempt or modifications of orders, the aforementioned are the most common.  All of the issues may be heard together or handled at different times.  For example, if grounds are disputed, a court may schedule a grounds trial right away since if grounds do not exist, then the rest of the divorce is a moot point as it cannot proceed.

Grounds are rarely an issue nowadays since the passage of the No-Fault law in 2010 which merely requires one party to the case to be able to swear that the marriage has been irretrievably broken for at least six months.  However, if a party insists on fault based grounds that are disputed, a trial might be necessary on those grounds if disputed.  As a New York City and Long Island Divorce Lawyer, I found myself in a grounds trial soon after the passage of the No-Fault law since the other side insisted on pursuing fault based grounds.  Another possible grounds trial could be on the issue if a party substantially complied with a separation agreement when divorces are sought based on the grounds that the parties have lived apart pursuant to a legal separation for at least one year.

So, what evidence is admissible at a divorce trial?  For the most part, these rules of evidence apply at most civil trials whether on a divorce, family court matter or otherwise.  In general, all relevant evidence is admissible, unless it should be excluded based on some rule of evidence.  Irrelevant evidence should not be admitted at trial if objected to by the opposing side or the trier of fact (judge).  Evidence that has a reasonable tendency to show or not show the existence of a fact necessary to the decision on a matter is relevant.  If a bit of evidence seems to be from a non-reliable source, usually it would still be deemed admissible, however it might not carry a lot of weight.  What value to give the evidence is for the court to decide.  However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue delay or waste of time. Continue reading →

Yawning sleeping baby on colorful towels stackThe New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age.  If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined).  In any of these instances the court would not allow the test.  As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue.  This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.

As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests.  Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice.  Equitable estoppel occurs when someone has held himself out as the father of a child.  Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.

The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place.  The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006).  The court recognizes a big quandary faced by potential father’s in this case.  If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship.   He can request a DNA test before assuming the role of father.  This, of course, can have the effect of causing a strain on the relationship between him and the mother.  On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father.  It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father.  It is not required that the person who holds himself out as the father did so knowing that this representation was false.  If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading →

Great friendsThe law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant. Continue reading →

Couple having a quarrel in front of their kidThis article is meant to provide some background about divorce and family law matters in the New York City borough of Queens, New York. As mentioned in prior blog entries, although the statutes are the same for everyone in New York State, there are different rules and procedures that change from County to County and even court room to court room. New York is made up of four Appellate Divisions.  Queens County happens to be located in what is called the Second Judicial Department and therefore the case law coming out of the Second Department is controlling for Queens County divorce and family law cases. The New York Court of Appeals is the highest court in New York. Therefore, case law from the New York Court of Appeals is controlling on Queens County as well as everywhere else in the State. Decisions from the three other judicial departments would be influential if the Second Department has not directly ruled on the matter. Although I practice all around the Long Island and New York City area, which includes both the First and Second Judicial Departments, my office and most of my cases are from areas located within the Second Judicial Department. This familiarity is helpful in my practice as a Queens County Family Law attorney.

Throughout my legal career, I have handled a great deal of cases in Queens County. Since my office is Nassau County, New York, conveniently bordering Queens, it is a short ride to the courts in Queens. Besides Nassau County, Queens and Suffolk are my highest volume geographic areas at this time. First I will discuss the Queens County Supreme Court, followed by information about the Queens County Family court.

Like everywhere else in New York, a person that wants to file a divorce case in Queens needs to use the Supreme Court. The Queens County Supreme Court is located at 88-11 Sutphin Boulevard Jamaica, New York 11435. Issues that arise for couples after a divorce (post-judgment) can be filed and dealt with at the Queens County Supreme Court. Supreme Court Justices are assigned cases that are filed in the Queens Supreme Court. Justices are elected Judges, but, Judicial Hearing Officers (who are usually former judges) may be assigned for trials or a hearing on one or all of the issues. The consent of the parties is usually obtained before sending it to a Judicial Hearing Officer since everyone has the right to have their cases heard in front of a Judge. In Queens, like every other County in New York, incidentally the only issues in a divorce that would go in front of a jury would be a grounds trial. Everything else would be decided by the Judge or a Queens Supreme Court Justice. Grounds trials, particularly, jury grounds trials are rare but they are a possibility. Continue reading →

babyeyesCan the New York courts exercise jurisdiction over a child custody case?  In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.

The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States.  New York’s version of the Act begins in the Domestic Relations Law Section 75.  The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order.  First, a state must meet the definition of home state to be able to make an order.  If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there.  For children over six months of age, the home state is where the child resided for the previous six months.  If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status.  If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.

Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there.  If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction.  The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state.  In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction. Continue reading →

man-woman-heart-1-1056037-mSeparation agreements, pre-nuptial agreements, post-nuptial agreements, and stipulations of settlement may largely contain the same contents, and serve a lot of the same purposes, but vary in the timing that they are made. One purpose is invariably to define the respective rights of each marital partner in the event of a dissolution of the marital partnership. As a divorce mediator, New York City and  Long Island divorce lawyer, marital agreements are a big part of my practice.

Pre-nuptial agreements are made prior to the marriage.  Post-nuptial agreements are made after the parties are already married.  Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.  Stipulations of settlement of a divorce are made after a divorce case is filed to settle the issues necessary to be decided to get the parties divorced.

Pre-nuptial agreements can help couples enter into a marriage with the knowledge that  their rights have been defined in the unfortunate event that it doesn’t work out.  As a mediator, matrimonial and family law attorney, pre-nuptial agreements are an opportunity to work with a party or couples in love that could stay married forever.  The stress of the financial uncertainty that could result from a divorce can be removed.  Pre-nuptial agreements commonly identify how the property that the parties have already, going into the marriage, will be split up or retained as separate property, in case of divorce.  It can provide how much maintenance (alimony), if any, there will be upon a divorce.  Child custody, parenting time and child support matters become trickier to try to outline in a pre-nuptial agreement since a court always has discretion when it comes to what the custody and parenting time arrangements will be with a child.  Also, the dissolution of a marriage would in most instances qualify as a substantial change of circumstances to look at what custody and parenting time arrangements are, despite an earlier agreement, in the best interests of the children moving forward.  Still, the agreement could be used as a starting point on these issues and might prove influential if there is a dispute about the determination of the matter in the future. Continue reading →

prince-1282775-mThe Uniform Interstate Family Support Act (UIFSA) has been adopted, in some form, by every state in the United States.  New York’s version of the law may be found in the New York Family Court Act Article 5-B.    The Act became necessary since parents and children end up having connections to multiple states.  A mechanism to determine which states have the power to initiate or modify a support order in each particular instance was needed.  The law also provides which state’s law should be applied when looking at child support issues.  New York and Long Island Child Support Lawyers have to sort out interstate support issues on a daily basis.

The child support laws can vary widely from state to state, therefore which state law is being applied is an important determination.  For example, people are required to support their children until age 21 in New York, unless they are sooner emancipated, while in other jurisdictions the age is 18.   The guideline amount of child support to be paid is different from state to state as well.   In New York, the guideline amount of support for one child is based on 17 percent of income while elsewhere different guidelines apply.

If there are proceedings simultaneously going on in two different states, the Act will help deterrmine which state should exercise jurisdiction.  If New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jursidiction.  New York employers, under the law, are supposed to treat income-withholding orders from another state the same as an order made in New York.  Orders from other states can be enforced by the Support Collection Unit in this state, as long as there is not a contest to enforcing the order without registering it. Continue reading →

Kids SwimmingHabeas Corpus is another Latin term, used in legal proceedings which means “You have the body”. This blog entry will refer to the use of the term in family law proceedings which, of course, has a different application than in criminal law proceedings which also make use of Writs of Habeas Corpus. Usually, the writ itself is an order from the Family Court or Supreme Court in New York directing someone that has a child to bring that child before the court on a specified date and time. The underlying premise necessary to support an application for a Writ of Habeas Corpus is that the child is being wrongfully held by another. This wrongful detention could be in violation of someone’s custody or parenting time order. New York or Long Island Family Law Lawyers can use Writs of Habeas Corpus as a tool to help their clients in child custody and parenting time disputes.

At times, the Writ might include a temporary custody order, but usually the Writ simply directs the production of the child. Further proceedings can ensue in the court after the production date regarding custody, parenting time, and perhaps contempt. If the person does not comply with the Writ, they will be in contempt and could face the wrath of the court which might include relinquishment of custody, incarceration, and likely a warrant for their arrest for failure to come to obey a court order. Sometimes, once the child is brought before the court, the court might direct the child to be given to the petitioner as they are entitled to custody or to exercise their parenting time. The Writ of Habeas Corpus proceedings often end on the date the child is brought to the court as the Writ is considered satisfied. At other times further proceedings are necessary.

So, what needs to be included in an application for a Writ of Habeas Corpus? The supporting papers should first set forth the relationship of the Petitioner to the children, such as Father, Mother, grandparent, or otherwise. Next, the application should detail that the subject children are in the physical custody of the Respondent and the time since that has been the situation. In cases where the Petitioner legally is entitled to custody, the application should set forth how the Respondent improperly and unlawfully removed or withheld the child from the Petitioner. This might mean that another parent or person took the children without authority to do so or refused to return the children after their allotted parenting time or visitation period. In cases where the Petitioner is not the residential custodial parent of the child(ren), the allegations to be detailed in the petition usually will allege that the Petitioner was improperly denied their parenting or visitation time. Continue reading →