Articles Posted in Child Custody

Relocation-Picture-300x200There are many complicated aspects of family law. Arranging equitable distribution in a divorce can be difficult, particularly in cases where it’s hard for the couple to agree. Deciding who should get control over a family home is also a complex discussion. However, few things require more caution and careful consideration than issues associated with child custody. Not only does a child custody agreement need to be approved by a court based on an observation of what’s in the child’s “best interests,” but changing the order is a challenge. Even if a modification of child was right for the child, absent an agreement about it, the court would need to see a substantial change in circumstances before even getting to the issue of whether the modification is in the best interests of the child or children.

When working with clients on family law issues that involve child custody agreements and visitation or parenting time rights, I find that it’s essential to highlight the complexity involved in making the right decision for a child. The courts of New York and Long Island will not disrupt a child’s life and growth by altering their custody situation unless there is a good reason to do so, that’s why a substantial change in circumstances is crucial. It’s also essential for the people requesting the change to show that the alteration is in the best interests of the child.

In the past, the situation used to be that if people agreed in advance that another parent would be able to relocate as part of a written agreement that was ordered by the court, the agreement would control the relocation. However, that may not be the case today. The court can no longer automatically say what might be in the best interests of a child without hearing the full case. Continue reading

ChildSupportMediationCouple-300x200As a divorce attorney and divorce mediator, I often ask questions to learn more about my clients and their cases. Many aspects of law revolve around the ability to ask the right questions at the correct times. Recently, I attended a conference at the New York State Council of Divorce Mediation, to further my education on Divorce Mediation and network with my peers. During that event, Kenneth Cloke, JD, Ph.D., and LLM provided an interesting training session on the “art of asking questions.” This session raised some interesting insights in the questions in divorce and family law mediation cases, and I’ve written this blog to share those insights with you.

In any legal case, asking the right questions is crucial. For a divorce mediator, asking questions can be complicated and even dangerous, because it sparks emotional responses in clients. Sometimes, you need to ask the difficult questions to get to the deeper meaning behind certain issues and domestic disputes. One thing that all divorce attorneys and mediators see, is that the disputes between parties in a divorce are often two-dimensional. Dr. Cloke points out, usually, a husband or wife complaining about dirty dishes left in the sink isn’t just about the dishes – it’s also about the lack of respect that someone shows when they ignore something important to their spouse. Continue reading

Baby-and-Mom-300x200When a child’s parents are unwilling, unavailable or unfit to care for their children for any reason, another adult may be awarded either a guardianship of the children or custody of the children. Under New York family law, guardianship and custody are two related but distinct concepts, and the intersection of the two can be complex at times.

As a default rule, a child’s parents are awarded custody of their children. This includes physical custody (where the child lives) as well as legal custody (the right to make important life decisions for the child). However, in some cases, a child’s parents are either unavailable or unable to care for their children and an alternative caretaker must be established. Thus, custody in this context generally refers to a non-parent.

New York Guardianship

A minor child who is under the age of 18 and is not married must have a legal guardian. Once appointed, a legal guardian has the same power as a child’s parent to make decisions for the child.
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In a recent post, we discussed New York child support agreements and how the parties to a divorce may be able to agree to the payment and amount of child support Outsidequarrelcouple-300x200rather than have the court make that determination. We also discussed a situation in which the court was likely to set aside a child support agreement. This week, we will take a more in-depth look into how courts view New York child support agreements.

As a general matter, a properly drafted New York child support agreement will remain enforceable over time. However, in reality, circumstances and relationships change, and it is not uncommon for either party to an agreement to ask the court to modify or set aside the agreement if they believe that it is no longer fair to them or to the children subject to the agreement.

The default law (for support orders made nowadays), unless people opt out of them is that either party to a  child support order may seek to modify it:  every three years; if income changes by 15% or more; or there has otherwise been a substantial change of circumstances.  The parties to a properly drafted and executed written stipulation may opt of those first two reasons.  If people have opted out of the default reasons to modify the agreement or the order predated the 2010 child support law, then the Courts will only grant a party’s request for an upward modification (meaning an increase in the child support obligation) if the requesting party can establish one of three circumstances:

  • When it appears that the needs of the child are not being met;
  • There has been an unanticipated change in circumstances, as well as a showing by the moving party that there is a need for modification; or
  • The agreement was unfair or inequitable when it was made.

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Over the past few weeks, we’ve taken a look at the process of New York divorce mediation, in which parties work together to come up with an agreement regarding Parentswithbaby-300x200many issues that would otherwise be decided by a judge. Last week, we discussed the fact that a New York divorce mediation can include terms that cover the custody of minor children, and provided an example where the court upheld a parties’ agreement although it was later contested by one of the parties.

It is important to note, however, that courts retain discretion in determining New York child custody issues. So, while the parties to a New York divorce are free to come to an agreement between themselves regarding child-custody matters, if the court determines that the parties’ agreement is not in the best interest of the children involved the court can set aside the agreement.

There are two common ways this situation arises. The first is during the judge’s initial review of the parties’ agreement and the second is if one of the spouses requests a modification to the child-custody agreement after the court has approved the agreement and the divorce is final. Once a child-custody agreement is approved, courts will not modify that agreement unless there is a substantial change in circumstances and the party seeking modification can show that modification is in the best interests of the children. A recent case illustrates a situation in which a court found that each of these elements was met and, thus, modified the agreement.

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Childrensmiling-300x209In New York, the parties to a divorce have the option to enter into a mutually acceptable separation agreement if they can agree on the terms of the divorce. For the most part, courts will uphold the terms of valid New York separation agreements. However, the court retains ultimate jurisdiction over specific issues.

For example, when it comes to determining New York child custody issues, the parties are free to discuss the issue and come up with an arrangement that works for both parties. However, under New York family law, the primary factor courts consider when deciding child custody issues is what is in the best interest of the children. Thus, if a separation agreement provides for a custody arrangement that is not in the best interest of the children, the court may not enforce that provision of the agreement. Similarly, an agreement as to the physical location where the child will live is also subject to the court’s “best interest” analysis.

Once a separation agreement is accepted by the court and incorporated into a New York divorce proceeding, the terms of the agreement will remain in force unless there is a change in circumstances. A recent case illustrates how New York courts handle a party’s request to modify a previously agreed upon custody arrangement. Continue reading

There are many complex cases to consider in the world of family law. Some of the most often-discussed cases includeTeenage-girls-bench-300x200 those to do with divorce, child support, child custody and parenting time cases. However, there are also instances in which a parent may be accused of neglecting or abusing a child – either in a case brought in family court or outside of court after a CPS or ACS investigation.  Child neglect can appear in many different allegations, from a parent being accused of being unable or unwilling to provide their child with the right food and hygienic care to keep them healthy, to a care-provider being accused of neglecting to give a child the expected education.

The law says children are entitled to an education. If a parent fails to provide their child with that education, the belief is that they could be harming that child’s future and making it harder for them to succeed in life. As such, issues with education are often referenced in cases regarding abuse and neglect.

In New York, the family court defines a child suffering from educational neglect as an individual under the age of 18 whose mental, emotional, or physical condition is either impaired or in danger of becoming impaired because of a failure on the behalf of the parent to provide the right level of education. Parents are responsible for supplying children with an adequate education in accordance with the New York Education law. Continue reading

Going through a New York divorce or couple split is often very difficult for all of the parties involved, including any children of the divorcing couple. Children are often unwitting parties to the entire process, yet their lives can change significantly as a result. It is not uncommon for children to resist the fact that their parents are getting divorced or separated. Consequently, they may take one parent’s side over the other.

When it comes to a New York family law court’s custody orders, however, children are obligated to follow the visitation or parenting time arrangement set forth by the court. While a judge will listen to a child’s wishes in regards to visitation, ultimately the court will consider factors other than the child’s expressed preferences when determining whether visitation with the non-custodial spouse is appropriate. If the court determines that the non-custodial spouse has parenting time or visitation rights, then the child must attend visitation.

If a child refuses to honor court-imposed parenting time, courts have several available courses of action, depending on the reasons why the child does not want to participate in visitation with the non-custodial parent.  A child of employable age can be deemed constructively emancipated if without good cause he/she refuses to have a relationship with the non custodial parent.  But the parent seeking emancipation has the burden.  I have previously blogged about constructive emancipation and have represented a number of people in such cases. For example, in one case, the non-custodial parent could have been relieved of their child-support obligation if the child is determined to have “abandoned” the parent, but in this linked case the petitioning parent did not show a lack of justification for the abandonment.

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As we approach the end of the calendar year, taxes are on everyone’s mind.  Perhaps people are thinking more about taxes than usual because of the passage of the new tax law by Congress at the end of 2017.   To many who have been through a New York divorce or separation, the tax implications of dissolving a marriage are incredibly important and must be part of the overall discussion regarding other issues, such as the division of assets and child custody.

One issue that frequently arises in New York divorce cases is which parent is able to claim a child or children as a dependent for tax purposes. The ability to claim a child as a dependent can have a significant effect on a party’s tax liability.

For the most part, only one person can claim a child as a dependent on their tax return. However, a custodial parent can waive their right to claim certain benefits, such as the child’s personal exemption, the child tax credit, and the tuition and fees deduction. Notably, a custodial parent could still retain the head-of-household filing status, the child and dependent care credit, and the earned income credit. However, according to the IRS, if the parties have multiple children the parties can either agree on how to split up the dependency credits or a court may make that determination.

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Parents have an obligation to keep their children safe and to make sure that a child’s naiveté does not put them in harm’s way. At the same time, most parents want to encourage some level of independence to help develop a child’s decision-making skills. In today’s society, with the prevalence of cellular phones, text messaging, instant messaging, and the like, the question of a parent’s right (and in some cases, obligation) to monitor their children’s phone use frequently comes up.

The general rule is that a parent is able to monitor their children’s cell phone use, including the text messages that have been sent and received. This can be done in a number of ways. The easiest way for a parent to view a child’stext messages is to simply scroll through the child’s phone. Parents can also view a log of all of the messages sent and received in most carriers’ monthly billing statements or online. There are also apps that allow for parents to monitor a child’s phone activity remotely.

Thus far, we have discussed monitoring a child’s cell phone activity to keep tabs on with whom they are talking and what they are saying. However, if a parent wants to use text messages in a New York family law proceeding, other issues may arise.

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