Articles Posted in Child Custody

After a divorce is finalized, the former husband and wife will go their separate ways. When the former couple has children together, this may result in one of the parents leaving the state with the children. While the state overseeing the initial divorce proceeding generally issues an initial custody order, that order is subject to revision.

U.S. MapCustody orders can be revised by either the state where the original proceeding occurred or, under some circumstances, by the state where the child resides. A common issue in New York family law cases is the state’s ability to enforce custody orders that were made by another state.

The Uniform Child Custody Jurisdiction and Enforcement Act

Lawmakers understand that situations like the ones discussed above are likely to arise, and as a result, they have developed a uniform act to streamline custody proceedings across state lines. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by 49 states, including New York, and provides guidelines as to which court has the power to issue binding custody determinations and modifications. It also allows for consistent enforcement of out-of-state custody determinations.

Continue reading

Child custody trials can be very challenging experiences for every individual Lawyer-Justice-Scales-226x300involved. After all, they require the court to consider the best interests of a child when moving forward after a divorce case. An important element to remember is that while many professional techniques are used during a child custody battle, no-one really “wins”. Instead, the best arrangement will be suggested based on the unique needs of the child, and the ability of a parent to provide the healthiest upbringing for that child.  It is very much preferred for parents to be able to make agreements as to what the custody and parenting time arrangements for their children will be.  Trials build the animosity between the parties and thereby are harmful to the children.  That being said, custody hearings and trials happen as people involved in a custody battle sometimes cannot or will not settle.

Opening statements represent the start of a custody trial.  Often times custody lawyers choose to waive opening statements as the trier of fact in the case is a judge (there are no jury custody trials in New York), not a jury, and the judge most likely would rather proceed to the testimony rather than hearing opening statements.  Opening statements are not evidence so a judge might actually appreciate the first witness being called who can provide evidence by their testimony, rather than hearing the musings of the child custody attorneys.  Continue reading

When it comes to pursuing the best interests of a child in the case of “child Kitchen-couple-fight-300x200custody” there are many different paths for an individual to choose. For instance, some partners considering divorce who must think about child custody concerns will decide to undergo a professional course of mediation, Mediation allows couples to negotiate over potential outcomes for their child, in a setting that allows each side to have their say, without the emotional hardship of litigation. On the other hand, there’s also a “middle-ground” between mediation and litigation that’s known as collaborative law, where spouses will work alongside divorce attorneys and other experts to make decisions regarding parenting time and visitation rights.

Of course, there will always be some cases in which the only option to truly outline the best interests of the child, will be to take the matter to court. In front of the New York Court, divorce attorneys and child custody lawyers will attempt to present a case that shows their client as being the care-provider who can offer the best future for the child in question. This will help the court to make a decision regarding the “best interests” standard for child custody. To present a case fully, attorneys like Mr. Shapiro will frequently use questioning in the form of direct examination, and cross examination.

The Difference Between Cross Examination and Direct Examination

Continue reading

There are various ways to approach a child custody case. For some parents, the ChildGlasses-300x258best solution to negotiating things like parenting time, visitation, and custody, will be to consider an amicable approach featuring settlement negotiations, collaborative law or mediation. Indeed, many couples believe that mediation is a powerful option for cases regarding children, as it allows them to limit their risk of exposing the child to painful memories of their parents fighting or uncomfortable emotional experiences such as being interviewed by an Attorney for the Children, a forensic evaluator or a judge. However, avoiding court battles will not be possible for every case. In some instances, the only way to properly pursue the best interests of a child, will be to take the matter to a New York Family court or Supreme Court, and present it in front of a judge.

Litigation in family law is a complex, and often highly nuanced area. There are numerous skills, methods, and techniques that an attorney can use to sway the opinion of the judge, or potentially assist in outlining crucial points in a specific case. One common element of child custody cases, and indeed many litigation circumstances, is the use of “direct examination”. When properly done, direct examination in a child custody case can be used to demonstrate to the judge, or trier of fact, that a person’s request or plan for parenting time or custody is within the best interests of the child or children involved.

What is Direct Examination?

Continue reading

As a divorce lawyer for the regions of Long Island, the surrounding areas and New York, I like to inform my clients Senior-Couple-300x212that I’m capable of offering them a range of solutions when it comes to dissolving a marriage. While some people will find that litigation is their best option (and I do litigate), others will prefer to access the often time, and cost-effective solution of mediation instead. As a trained mediator, I can offer clients a more collaborative experience when it comes to settling divorce issues.  I routinely litigate, as well as settle cases under the more traditional system, which is set up as an adversarial system (ie.  Plaintiff versus Defendant).  I also work as a mediator or a review attorney for those that choose divorce mediation as their process to dissolve their marriage. Here, I’ll address some of the common questions I encounter about divorce mediation.

Question 1: How Can I get My Spouse to Agree to Mediation?

Often, both spouses need to feel comfortable in a mediation setting for this process to work. As such, my clients often ask me how to convince their spouse to take part in mediation as an alternate source of dispute resolution. Often, I find that the best option is to simply approach the topic from an angle that both of you understand. For instance, if you’re concerned about money, you could acknowledge that mediation is often cheaper than litigation. Alternatively, if you want to defend the children from an emotional process, mediation is often a much calmer approach to divorce. Continue reading

As a child custody lawyer for New York, and Long Island, I know that people involved with a child custody case often Family-Breakfast-300x200have questions about it.  The complexities of best interests and various pre-set standards can make it difficult for parents to understand exactly what they’re getting into when they approach a custody case. With that in mind, I’ve put together this quick introduction into some of the most frequently asked questions I encounter as a child custody attorney.

1.     What Is The “Best Interests” Standard

For most legal matters, the court focuses on resolving issues by considering the past and present behavior of the parties involved. However, in child custody, the court must use that information to look towards the future, and predict which parent may offer a healthier, more successful environment for the child in question. By examining past behavior, and sometimes engaging psychological or other expert testimony, New York Courts must determine outcomes based on their opinion of the “best interests” of the child.

2.     What does the “Primary Caretaker” mean ?

Continue reading

Today’s blog is a blend of some of my prior blogs and/or website articles over the years on child support. As a New Happy-Blue-Sky-Family-300x200York divorce lawyer and family law attorney, one of the most common types of cases I deal with involves the issue of child support. Under the law of New York State, both parents responsible for a child are required to support their child financially until that child turns 21 years old. Regardless of whether the parents have been involved in a divorce or not, they remain financially responsible for their child.

In any divorce or child support case that I encounter as a family law professional, I find that it’s important to outline the details that go into determining how much child support is possible. Child support is a very complicated matter, and if it’s something that you’ve never encountered before, you might find yourself getting confused, or overwhelmed. Here, I’ll talk a look at a few things that you might not know about New York child support. Continue reading

DefaultDivorces in New York follow many of the same procedures as other lawsuits. The plaintiff spouse filing must provide the defendant spouse with notice consisting of a summons and either a copy of the divorce complaint or a notice describing the nature of the lawsuit. Delivering these documents to a defendant is commonly known as service of process. Failing to do this properly can delay a case or even result in its dismissal. Once the defendant has been served, they must file an answer or else risk a default judgment on some or all of the plaintiff’s claims. An interesting question arises when a plaintiff spouse serves a summons with notice—meaning without a copy of the divorce complaint—and the defendant spouse defaults. Does a defaulting spouse have a right to service of the actual complaint? The scant amount of caselaw on the topic, suggests that notice, without the complaint, is sufficient for a divorce but not for issues like custody and support.

New York law requires a plaintiff to file a summons, along with either the complaint or a notice that describes the nature of the complaint. If a plaintiff chooses the latter, known as “summons with notice,” they must file the actual complaint at a later time. The exact deadline depends on how the defendant responds to the lawsuit.

The New York Domestic Relations Law (DRL) and Civil Practice Law & Rules (CPLR) govern service of process in divorce cases. Section 232(a) of the DRL requires a summons to clearly state that it is for an “action for divorce.” Rule 320 of the CPLR states that the defendant has 20 days to respond if they were personally served, or 30 days if they were served by any other means. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.

Continue reading

PolyamoryLaws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

Continue reading

Different people approach divorce from different angles. While some are limited to litigation, others will prefer to Mediation-Coupleexplore alternative solutions like collaborative law and mediation. I offer mediation to couples as a way of helping them to sort through the various issues that commonly arise during a divorce or separation. As a mediator, I try to ensure that the discussion is calm, constructive, and open, so that both parties are able to have their say. Because of this, mediation is often seen as a very flexible process, and it can be used to address matters regarding children, visitation, and custody rights, or consider concerns about the financial side of dissolving a marital relationship.
Using divorce mediation properly is all about understanding what you’re getting involved with, what the benefits are, and who you need to be in contact with. It’s important to remember that mediation isn’t there to deal with your relationship problems or get you back together, but instead assist you in agreeing on the issues that will allow you and your ex-partner to move on with your separate lives. Continue reading