The Family Court in New York has the jurisdiction to hear cases involving allegations of abuse and neglect of children.  They are Mother Protect Childcommonly referred to as “N” docket cases since the docket number starts with the letter N.  Generally the case belongs in the county of residence of the subject child or children.  There is nothing to prevent criminal proceedings at the same time as the family court proceedings, however, the family court cases are intended to be about protecting the children, whereas criminal proceedings are about crime and punishment.  Services might be ordered by the court to help protect a child, improve the family situation or to aid in getting children out of foster care while the case is ongoing.

One of the first acts that a court will take when an abuse or neglect proceeding is initiated will be to appoint an attorney to represent the child or children who are the subjects of the case.  The job of the attorney for the children is to advocate for what the children want.  This is their same role whether they are appointed as attorneys for the children in a child custody case, which are commonly referred to as “V” docket cases, or in an “N” docket cases.  In the case of children not old enough or mature enough to formulate their own opinions of what they want an attorney for the child is permitted to substitute their judgment for that of what the children say they want.  It is the job of the judge to determine what is in the children’s best interests.

Often child custody, abuse and neglect cases proceed at the same time in front of the same judge since they involve the children and what is in their best interests.  I often represent a parent or a relative in such cases.  Many times my client is attempting to get custody for themselves when someone else is facing the allegations of abuse or neglect. Children might be ordered to be removed from their home when an abuse or neglect case is ongoing,  Relatives are supposed to be located and informed that the case is ongoing and that they have the possibility to seek custody, become foster parents, or in cases where reunification with the parents is not necessary or possible, that they may seek to adopt the children themselves.  When there is an appropriate relative to live with, and the children need to be removed from their current home, the court can give that relative custody, place the children with that parent, or in the care of the social services agency to place with the other parent, relative or in foster care when there are not other appropriate options.  Sometimes the court might decide that the child should remain with the same parent despite that the neglect or abuse case is ongoing. Continue reading →

Yes, void marriages can be decreed a non-event or an annulment can be granted of a marriage if certain specific grounds are met. The Shotgun weddinglaw on annulments is contained in the New York Domestic Relations Law Article 9.  If someone was still married, and their spouse still living, when the next marriage takes place, that next marriage is what is called voidable.  A case needs to be started, in a New York Supreme Court, to have the marriage declared void in that situation.  Of course bigamy is also a felony in this state, but the action in Supreme Court to have the marriage voided is a civil case, not a criminal proceeding.  This action can be started by either the husband or wife in that second marriage or by the first wife or husband.

If one of the parties to the marriage was not old enough to consent to getting married, an annulment can be granted.  It should be noted that this action can only be started by the person who was under the age of consent, or someone acting on his or her behalf (like a parent or guardian), and not by a party who was over the legal age of consent at the time of the marriage.  Also, if the underage person becomes legal age, and then voluntarily lives with the other as wife or husband, afterward then they can not maintain an action for an annulment.

A relative of someone that is mentally retarded and has an interest in annulling the marriage of the retarded person, can initiate the action during the life of either the wife or husband.  Annulment cases can proceed by a relative of a mentally ill person, if one of the parties to the marriage was mentally ill, while the illness continues, or after the mentally ill person dies while the illness continues.  If the mentally ill person becomes well, that person can proceed with an annulment, however, only if they did not feely live together as husband and wife after the formerly ill person became well.  The spouse of the mentally ill person, that was unaware of the illness when they got married, can start an annulment if the spouse was in that condition when the marriage took place.  These cases can be brought by someone called a “next of friend”, in some instances, if no relative starts an annulment on behalf of the mentally ill or retarded person.  Next of friends are someone that acts on behalf of the incapacitated person, like a parent, relative, or guardian, but does not have an official legal relationship to that person. Continue reading →

My mission is to help the wronged, unhappy or injured get what is fair and right.  This is the initial draft of my “Why” as I discovered scales of justiceyesterday when doing an exercise at the annual training of the New York Association of Collaborative Professionals.  The “Why” can be tweaked and tested, but this is was what I came up with after working with others to search for it in the exercise.  The exercise to find our Why was as suggested by Simon Sinek’s method through our trainer at the meeting.  My understanding of what the Why is would be that which we can not help but doing because it is our natural inclination.  On reflection, I get to do this as a matrimonial,  family law lawyer and mediator on a daily basis.  As a mediator, it is not my role to advocate for either side of the issue, but rather to facilitate the coming together to resolve their issues.  When I look at the settlements as crafted between the parties from my mediated cases, I find that they are fair balanced agreements.  It is my job as a review attorney to identify for my clients the fairness of the agreements that have been negotiated with a different mediator.

As previously mentioned, I am a big fan of alternative dispute resolution processes such as mediation and collaborative law, but the majority of my cases are and have been in the more traditional route as set up by the court system, which is the adversarial system.  So, a lot of my clients are in battle, and as their lawyer, I fight hard for them.  Since I am an experienced litigator, trained and certified mediator and collaborative law attorney, it allows me to help people with divorce and family law issues no matter what process they choose to use.  It turns out though, that my chosen profession fits the why that I discovered.  Invariably, people with matrimonial and family law issues either feel wronged, unhappy or injured in some way.  It is my job as their lawyer to help them get what is fair and right.

There are many reasons that I recommend mediation or collaborative law over the traditional adversarial route for those that are willing and able to do it.  To name a few of them, the adversarial method tends to foster bad feelings between the parties as the usual modus operandi of everyone involved is to emphasize the good for their side and the bad about the other.  In other words there is mud slinging in litigation.  Just because a relationship has ended, however, does not mean that people need to leave the relationship as enemies.  Two parents are forever connected by their children even if they are no longer romantically involved. Continue reading →

There are various resources out there free on the internet which are useful in practicing New York family law.  The New GavelYork statutes are one of the most important sources of information and are located in different places on the internet.  As a Long Island Divorce Lawyer, family law attorney and mediator, I pay for services where I have access to statutes, cases and public records information that enhance my ability to search for information.  But, there are also a lot of areas on the internet where there is helpful free information.

One convenient place to find statutes for the various New York laws is the Cornell Law website. The Domestic Relations Law is controlling for matrimonial practice in the New York Supreme Court. The Family Court Act controls for practice in the Family Court. The Civil Practice Law and Rules contains rules about the dynamics on procedure such as the filing and service of cases, rules of evidence in civil cases, the making of motions and discovery procedures just to name a few areas this law controls.  This website is also a good source to locate legal professionals who practice specific areas of law in various geographies. Case decisions for New York matters may also be found through this website.  There are links to published decisions for New York and other jurisdictions on this site.

Another huge resource for family law and all other areas of practice in New York court is the court website located at nycourts.gov.  This site also has links to find published decisions for case law in New York.  There is a large volume of information, tools and forms on this website which are invaluable for lawyers and litigants alike.  I’ll spend the rest of this article highlighting just some of these that I find important. Continue reading →

lacerated photo of young kissing coupleMarital assets, and debt, in New York generally are things that are acquired during the marriage that does not fall under the exception of separate property.  Separate property, in general are things that a spouse entered the marriage with that was kept separate throughout the marriage. Property acquired by gifts or inheritance that are kept separate also usually fall under the category of separate property.  Marital assets are broadly defined while separate property is narrowly defined. It is the burden of a party claiming something to be separate property to prove that claim.  In a divorce, separate property needs to be identified, while the marital assets and debt need to be distributed.

Equitable could mean equal or something different when distributing property in a dissolution of a marriage in New York. Equitable means what is fair. Sometimes there are pre or post-nuptial agreements or a separation agreement that already dictate how property should be divided. Usually these agreements are honored but there are circumstances when a court could void them or set them aside. If there are no agreements in place, the parties and their attorneys can agree upon what is equitable. If there is no agreement on what is fair, then equitable distribution becomes the job of the judge.

But isn’t everything just divided in half in a divorce?  Usually that is the case for marital assets and debt, but it is not a foregone conclusion.  Sometimes the split might be that eighty percent of the marital assets go to one spouse with twenty percent to the other.  Sometimes the split is equal after an application of credits to one side before the division.  Some assets are given entirely to one spouse, while others are shared in some way at times. Continue reading →

Parents FightOrders of protection can be issued by either the Family Court or the Supreme Court as part of a child custody case or divorce in New York. My previous blog articles concerning orders of protection in family law matters focused on the most common method that orders of protection cases occur against family members, outside of criminal prosecutions, which is called a Family Offense proceeding.  Later in this article I will discuss some of the differences between the orders of protection in custody cases from Family Offense petitions.  First, though, I will outline the order of protection authority given to the courts in child custody cases pursuant to the New York Family Court Act (for family court cases) and the New York Domestic Relations Law (for Supreme Court matters like divorces).

On good cause, the Family Court Act authorizes temporary orders of protection to be issued as part of a custody case. The temporary order may stay in effect for as long as the case is pending.  Under the law, the length of time any temporary order of protection is in effect does not need to be a consideration on how long a final order of protection should be in force.  A final order, or permanent order of protection, can be issued as part of a divorce or custody case to help with or as a condition of the judgment of divorce or custody order.  As the standard is in all child custody matters, whether or not the order of protection is proper would be controlled by the children’s best interests.

The order can require a party to the case to obey certain conditions of behavior like to: stay away from the children or parent; refrain from activities that put a child’s welfare at risk; take an educational class; pay for treatment or medical care that stem from the reasons that require the order or protection; pay lawyer fees of the protected party; not injure a pet of the child or a parent; to give back identification of the other party like drivers licenses, passports, etc.; observe other conditions required to protect. The orders of protection contemplated in this article are between family members, in a custody case, as defined in the law.  Family under the law includes spouses, former spouses, household members, and people that have a child together among other specific situations.  The law also allows the court to give the protected party authority to terminate a lease under the Real Property Law. Continue reading →

I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the orderCouple not talking with broken heart between them against snowflakes and fir trees in green that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense. Continue reading →

Female doctor holding syringeIn a word, yes, drug tests can be ordered, but they do not have unfettered discretion to order tests at their whim. The cases in New York have held that when the physical and mental state of a parent is in question the New York Civil Practice Law and Rules can support a test request. Case law helps to outline situations where getting drug tests in custody and family law cases are allowed and not.

The court required hospitals to produce medical records of a mother pertaining to her treatment for alcohol and drug dependency in DeBlasio v. DeBlasio, 187 A.D.2d 551 (2nd Dept. 1992). In that case the records were sought from three different hospitals that were not themselves parties to the case. The reasoning cited by the court for the production was that the mother’s interests in confidentiality were outweighed by the need of protecting the children’s well being.

In the case of Burgel v. Burgel, 141 A.D.2d 215 (2nd Dept. 1988), the court ordered a mother to go to a doctor’s office to give hair samples for drug testing. In this case the father, in a divorce, alleged that the mother was using cocaine. The mother admitted past use but claimed she was currently clean. The court held that in a custody dispute the mental and physical conditions of the parents were at issue and the information was relevant to determine parental fitness and whether the mother was being honest about her current use. The past use of drugs and the children’s best interest were stressed by the court as justifying the test. Continue reading →

When calculating income for child support or temporary maintenance (alimony), according to the New York Domestic Businessman hiding dollarsRelations Law and the Family Court Act, the Court may, if the court believes it is appropriate, add in or “impute” income to people. The statutes outline some enumerated items to be considered for imputing income and mentions that other resources can be additionally considered. Assets that are not producing income is one of these enumerated resources. Fringe benefits and “perks” that someone receives as part of their job like for food, housing, cars, memberships, and other benefits, if they are for personal use or if they result in a financial benefit to the party, are mentioned in the statutes as things that can be imputed as income by a court. Funds, services, or benefits received by friends or family can be added in as income for child support or a maintenance calculation under the law.

If a court concludes that someone has diminished their income or assets to try to get around a child support or a “pendente lite” (Latin for while the case is pending) maintenance obligation, a court can impute income for the party’s previous income or resources. This might be, for example, if the court believes someone voluntarily left their jobs, were fired for cause, or chooses not to work full time or at all. Besides past earnings, a court can consider their education and ability to earn. Whether or not the party is diligently applying for employment commensurate with their background, experience, and abilities may be a factor in determining income. A support magistrate or judge can look at what people with comparable educations and backgrounds earn to impute income.

There is of course another side to these cases. The person or lawyer arguing against income being imputed to their client can show that the loss of employment or income was due to no fault of their own like for medical reasons, the economy, or downsizing. If that person proves that the circumstances were out of her or his control, and they have been making diligent attempts to get replacement employment or income, albeit unsuccessfully, then they might convince the court that income should not be added in. Relevant questions might be “Where did you apply for jobs? Who did you talk to? What interviews did you go on? How often would you make applications each week? Did you receive any offers” – and so on.   Ultimately, a court needs to weigh each side’s presentation for or against the imputation of income. Continue reading →

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 →