couple fightingTemporary orders of protection are issued by the Family Court (or the Supreme Court in divorce cases) and can last as long as a Family Offense case is pending in the court. Final orders of protection are those that are issued at the end of the case. Family Offense petitions are the method by which order of protection cases are initiated in the New York Family Courts. If the filed petition makes out the elements of a “Family Offense”, the court will issue a temporary order. This initial order is based on the one sided presentation by the applicant and requires the other side, or respondent to observe certain behaviors to protect the alleged victim. The respondent will have a right to contest the petition. Each county has different procedures on the length of the temporary order of protection which I have seen in my practice as a New York City, Suffolk County and Nassau County Order of Protection Lawyer.

For example, some courts make the temporary order for only the length of time until the next court appearance.   Usually the temporary order will then be continued again until the next court appearance if the case remains pending. Other venues issue the temporary order to last for six months or a different time period. This does not mean that the order will definitively stay in place for six months or the other time period as court appearances will most likely be scheduled for sooner time periods than the order is set to expire. If the case is still not resolved before the order expires then, usually, the court will extend the temporary order while the case is still unresolved. Some courts will extend or continue the orders automatically, however, others will only do so upon a request. Therefore, it is important for a party or better yet, their lawyer to pay attention to when an order is set to expire so appropriate requests can be made to the court to extend it or arguments be made against the order continuing or being extended.

The common ways to resolve a Family Offense petition is by an agreement for an order of protection without an admission; withdrawal of the petition; dismissal of the petition before or after a trial; or the finding that a family offense petition has been committed and an order of protection put into place. The order of protection that is made at the end of a case becomes a permanent order of protection. It does not mean an order of protection that will be in place forever, rather it is permanent as it remains in place for a length of time after the case is over in contrast to a temporary order of protection. Continue reading →

For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, Quarrel of parentsexpensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading →

Broken familyClaims of parental alienation in child custody, matrimonial and family law cases abound. This article will focus upon parental alienation in the context of child custody and parenting time or visitation cases.  I have previously written about constructive emancipation which is applicable to child support cases.  The ultimate sanction, if parental alienation has risen to a point that the relationship between one parent and a child is irreparable, is to have the child declared constructively emancipated and to terminate child support.  This is the remedy for children of employable age.  For children of less than employable age there is case authority that stands for the proposition that child support should be suspended until visitation with the non-custodial parent resumes.  Please see my earlier blog article which discusses constructive emancipation in detail.

It is important to point out that certain actions that would be characterized as alienation, if they were taken for no reason, might be held by a court to be justified under certain circumstances. For example, protecting a child from abuse, be it physical or mental, can be found to be a proper justification for limiting contact.  What constitutes and does not constitute parental alienation is a judicial determination that is shaped by the presentation of facts through testimony and argument.  Something for both sides to keep in mind is that baseless allegations of abuse can be a reason for a court to find that the accuser puts their interests above the children.  Specifically, though, what is parental alienation?

Parental alienation has been described by psychologists as behavior, whether intended or unconscious, by one parent that poisons the child or children against the other parent. When such poisoning occurs, the children take on mischaracterizations or embellish misrepresentations that a parent teaches them about the other parent.  Interfering with another parent’s visitation or parenting time is one form of alienating behavior.  Continue reading →

Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of lawyer showing a divorce decreedocuments must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading →

man handing car key to womanMarital property is broadly defined, in the New York Domestic Relations Law, as all property obtained after the date of the marriage and prior to the signing of a separation agreement or the filing of a matrimonial case, without regard to the form that title is held, unless a proper agreement provides differently.  Separate property is excepted from inclusion in marital property under the law.  Separate property means:  property acquired prior to the date of marriage or property received by one spouse by inheritance or gift from someone besides their spouse; personal injury compensation; property received for or the increase in the separate property value, except any portion that is partly as a result of the efforts or contributions of the spouse; or property that is identified as separate pursuant to a properly made written agreement.  As a New York City area and Long Island Divorce Lawyer, what is marital and separate property is something that I constantly need to sort out.

To be a proper enforceable agreement that defines marital and separate property, the agreement could have been made before or after the marriage.  Agreements before the marriage are pre-nuptial agreements and those after the marriage are called post-nuptial agreements.  Stipulations of settlement of a divorce or separation proceeding can also resolve what should be categorized as separate property or marital property and would be a form of a post-nuptial agreement.  These agreements need to be written, and subscribed, acknowledged or “proven” in the manner necessary for a deed to be accepted for recording.  An acknowledgment is usually a simple paragraph, signed before a notary, affirming that the agreement:   was signed by that person; that they read it; and that it was made knowingly, intelligently, freely and voluntarily.

The law provides that a pre-nuptial agreement can be acknowledged before someone that is allowed, by law, to marry people. Besides defining marital and separate property, New York Domestic Relations Law Section 236(B)(3) outlines that the agreement can have (1) a contract to include a provision in a will or to waive the right to elect against a will; (2) the amount and duration of maintenance (alimony) or other terms or provisions of the marriage as long as they are in line with the New York General Obligations Law and the agreement is fair and reasonable when the agreement was made and not unconscionable at the time of a divorce judgment; and (3) custody, child support, care and education of a child subject to Domestic Relations Law Section 240. Continue reading →

Lawyer And The LawOut of court statements offered for the truth of the matter asserted are hearsay under the evidence rules and are not admissible at a trial or hearing, unless they fall under a hearsay exception. This blog is intended to help give an understanding about the applicability of the hearsay rules that I have run into most often in my practice as a New York City area and Long Island Family Law Lawyer. As a practical matter, what this means, is that generally things that people that are not a part of the case say out of court is not admissible.

One important hearsay exception, which originally was made for abuse and neglect cases, is for children’s statements about abuse or neglect are admissible. This hearsay exception is found in Family Court Act 1046(a)(vi). The statement(s) alone are not enough for a finding of abuse or neglect without being corroborated. Case law has expanded this statutory hearsay exception to apply to custody cases.  To be admissible in a custody case, however, the law requires that these children’s statements about abuse and neglect be corroborated. The statements may be corroborated by other evidence which has a tendency to support the reliability of the statement. Repetition of the statement alone would not constitute corroboration, however pictures and testimony about bruises qualifies. Cobane v. Cobane, 57 A.D. 3d 1320, (3d Dept. 2008). Corroboration is defined broadly but must meet a threshold of reliability.

Party admissions are probably one of the most common hearsay exceptions found in matrimonial and family law cases. Generally this is used when witnesses testify about what they heard or read the other party to the case say out of court. Often times, statements made by the person testifying about what they said out of court are allowed in, particularly when they are about a conversation with the opposite party to the case, although they might not technically qualify as party admissions which is the hearsay exception. Unless the statement is harmful to the party that allegedly said it, usually it would not qualify as an admission. Another reason that statements might be allowed to come in is if they are not “offered to prove the truth of the matter asserted”, but rather to simply show that the statement was made. For example, if someone testifies that she told me “it was raining yesterday” is offered to prove it was raining, then the statement is “offered for the truth of the matter asserted”. If, on the other hand, it is being used to show that the woman was able to speak, in that example it would not be “offered for the truth of the matter asserted.” Continue reading →

MediationI am a big fan of alternative dispute resolution such as mediation and collaborative law. Lawyers in New York are guided by the Code of Professional Responsibility. When I am in my role as a mediator, however, I am not acting as a lawyer at that time. Although I am both a matrimonial / family law attorney and also a mediator, mediators do not have to be lawyers. To guide mediators, in 2005 The American Bar Association and the American Arbitration adopted standards of conduct. The purpose of this blog entry is to summarize these standards and how they might apply to a New York Divorce Mediation.

The first standard is the principle of self determination. What this means to is that the decisions in mediation are to be made by the parties to the case, not the mediator. The mediator’s role is to guide and educate about the different options to settle the issues. For example, the mediator can explain different options for child custody like shared custody, joint legal custody, sole custody and joint custody with spheres of influence. Please click around my website or other blog entries for more information about any of these topics.

The second standard is that the mediator should have the qualifications to be able to properly handle the mediation be it from education, experience or training. In the context of divorce and family law this means: having matrimonial and family law knowledge; understanding how conflict impacts families and children; mediation process training as well as experience; and the ability to see how diversity and backgrounds impact people and situations. Mediators should be able to answer questions and provide information about their qualifications to potential mediation participants. Continue reading →

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 →