Articles Posted in Family Court

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 ?

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Unlike circumstances relating to child custody cases, where the testimony made by the children involved (please see Parent-Fightmy last blog for more information), can be done in a private setting (In-Camera), circumstances can differ somewhat in order of protection or family offense cases, where children are brought forth as witnesses to a specific event. In the case of a family offense proceeding, which is a case in family court that addresses whether or not there should be an order of protection, a child’s testimony that will be entered into evidence must be presented in front of all the parties involved.

Obviously, asking a child to testify in front of the parties, who are often their parent(s), in a family offense case can be a very difficult process, and it’s something that is frequently avoided at all costs, whenever possible. The reason for this is that the psychological damage a child is exposed to during such a procedure can be very significant, particularly when he or she is offering evidence against their parents.

Though a family offense proceeding is recognized as a civil proceeding, and isn’t directly about crime and punishment, it’s seen as a “quasi-criminal” case, because when family offenses are found, an order of protection can restrict someone’s freedom by forcing them to stay away from certain places and people. Additionally, these orders can prevent certain people from performing certain acts and behaving in a particular way. Continue reading

In any divorce or child support case that involves children identified as minors, it’s crucial to determine how much support needs to be Lawyer-Presentationprovided to give those children an on-going, and undisrupted lifestyle following a divorce or separation of parents. Child support is often a very complicated issue within divorce cases, and I often remind my clients that the courts of New York must examine a number of crucial factors before determining how much should reasonably be awarded.

Generally, the guideline amount of child support is determined by the parent’s income.  There are a number of factors upon which a deviation from the guideline amount of child support can be based, including, but not limited to:

  • The non-custodial parent’s financial abilities
  • The custodial parent’s earning capacity: Both parents have a duty to support their children, thus the earnings of the custodial parent must also be considered.
  • Other factors that a court might deem appropriate.

Here, we’ll examine the difficulties that can become present during a child support case when it comes to considering combined income in excess of $143,000.00 (the initial cap in 2017, when this blog was written on child support), and the ultimate financial abilities of the paying spouse. In determining parental income, the courts of New York adhere to the Child Supports Standard Act, starting with an evaluation of parent’s “gross” income. Often, this income is evaluated according to the numbers on that individual’s most recent income tax return. Once that gross amount has been considered, the court continues to evaluate potential other compensation including, but not limited to voluntarily deferred, or additional income. Continue reading

It is a fundamental principle in New York Family law that for a request to modify a custody order to be able to Kitchen couple fightproceed in court, be it Supreme Court or Family court, there needs to be a substantial change of circumstances.  Only if there is a substantial change of circumstance can the court make a determination on what new child custody order is in the best interests of the child or children.  I have previously blogged about the quandary about when should the change of circumstances be measured from?  Is the change of circumstances to be measured from the date the case was settled or in the cases that went through trial from the close of evidence at trial?  Or, in the alternative, should the change of circumstances be measured from the date the order is finally drafted and entered with the clerk of the court?  This can be an important distinction as often there is a substantial lag in time between the two events.

A recent case, Matter of Ladd v Krupp, 136 A.D.3d 1391 (4th Dept. 2016) decide in the fourth department has highlighted this disparity.  One of the issues raised on appeal was if it was error to use one date as opposed to the other.  The court ended up resting its decision on the fact that it believed it did not matter, for that case, which date the change of circumstances was measured from as from either date there was a substantial change of circumstances.  However, clearly, it can matter in other cases.  That case cited various precedents which detailed the different dates that are used to measure the change.  Continue reading

father and childThe New York Family Court processes petitions for child support, establishes new child support orders, and determines whether a modification should be made to an existing child support order.  It is possible to also utilize the Supreme Court to establish, enforce or modify child support, particularly in a divorce or postjudgment divorce case.  Most child support payments in New York are made by a noncustodial parent paid direct to the other parent or through the Support Collection Unit (SCU).

Once the court has issued a child support order requiring the support collection unit to collect payments, the SCU collects and distributes the payments. If the noncustodial parent falls behind in payments, the SCU can enforce the order. Once a parent applies for services, the support order has to be paid through the SCU, and the custodial parent can no longer accept direct payments from a noncustodial parent or informally agree to change the support order. If the noncustodial parent wants to pay the custodial parent directly, the noncustodial parent should either make sure this is reflected in the initial order or file a modification petition subsequently in order to ask that a direct payment be credited to his or her account.

Once child support is ordered, the parent who is required to pay is given a payment instruction sheet, indicating how much to pay and how to make the payments. For parents who work, a notice may be sent to their employer with instructions about taking the child support payments out of the salary and sending them to the Support Collection Unit or SCU. However, these payments can also be taken directly from other income streams, such as unemployment or even a pension. Payments may not be deducted from a worker’s paycheck for a few weeks from the time of the child support order.

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When a custody case is brought to a New York family court, the law requires the papers to be served to the other Summons Doorside, often in the form of a summons and petition. It is up to the parent that is filing the case to ensure that the other parent in the custody argument receives the papers – generally through in-hand delivery. Ensuring the service of papers is essential, as the law recognizes that there are few things more important in child custody cases than ensuring that every person entitled to make a claim on the behalf of the best interests of the child will receive notice of the proceedings taking place. Importantly, the law dictates that services of a petition and summons should be given at least eight days before the first court appearance is required of the other party. However, in practice, it is worth noting that regardless of how a respondent may receive the notice to attend court – so long as they attend and admit that they were served the papers, then the court will be given jurisdiction, and have the right to proceed with the case.

In cases of custody, visitation, or other matters brought before the family court, I often find that the case is started using an order to show cause, instead of a summons, and a petition. While the petition underlines what the person presenting the case to the court wants to address, the order to show cause specifies how service should be addressed.  When service is directed pursuant to the Order to Show Cause, how to serve the papers is spelled out by the judge who signed the order.  It takes the guess work out of service, however, it then becomes important to precisely comply with the method and timing of service that is directed. Continue reading

Restraining Orders for protection of a person in New York Family Law are called Orders of Protection. It’s Couple Street Fighthelpful to know the proper legal names under each state of what it is people are seeking.  Restraining order and orders of protection (aka protective orders), for example, can mean different things.

Orders of protection in New York may be granted to protect the alleged victims of crimes as part of a criminal case against the accused perpetrator. But, without a criminal prosecution going on, if people are “family” such as: blood relations, share a child in common, are defined as family under the law, members of the same household or in intimate relationships, orders of protection are possible to require a person to stay away from another or refrain from communication or doing certain acts against the protected party. Sometimes people simply want orders of protection but do not wish for the alleged abuser to have a criminal case against them. Please see my other blog entries and website for more information about Family Offenses, and Orders of Protection in family law and divorce cases. I have represented many alleged victims and at other times people accused in connection with order of protection matters. Continue reading

In cases of paternity in New York,  a child that was born during marriage is legally presumed to be a Pregnant-couplebiological product of that marriage, and this presumption historically was one of the most persuasive in law. However, it’s important to note that this presumption is still subject to the sway of reason, though statements have varied regarding the sufficient evidence required to rebut such a presumption. For instance, in the context of a case wherein a child is born during a marriage, the presumption should not fail unless there is evidence to demand reconsideration. In fact, if a husband and wife live together, legitimacy is often presumed, and even if the couple are living apart, the court can provide a fair basis for the believe that a child was born as a product of times the couple were brought together.

During recent years, case law that enunciates the presumption of legitimacy in paternity cases where a child is born during a marriage has been pulled into question. This isn’t necessarily because the reasoning and logic behind that case law has changed over time, but because the passage of time have delivered new updates in technology and science that make determining legitimacy accurately, more possible. In past cases, one of the primary – if not the only determining factor in the application of a presumption of legitimacy in court was access between the husband and wife. However, as we have progressed further into modern times, DNA tests and blood tests have also acquired a new ability to sway reason. Because of this, while the presumption of legitimacy still serves a laudable purpose, it remains to be just another legal presumption that can be used when conclusive evidence to the contrary is not available.

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Family Court Support Magistrates and Written Objections

Three serious lawyers standing with arms crossed in the court room

There are many complex nuances to consider when evaluating the hurdles and complications of family law – including cases that involve child support and spousal support. Typically, cases of support, are initiated when petitions are filed with your local New York family court, except divorces, which also can have elements of support, are done in the appropriate local Supreme Courts. Family Court support and paternity cases, are assigned to support magistrates. These professionals are responsible for hearing and helping to determine how support will be awarded. They have the power to grant or determine various forms of relief according to the Family Court Act, regarding proceedings that involve support, the enforcement of support, paternity, or matters regarding the Uniform Interstate Family Support Act. Within any applicable case, the support magistrate present will be given the authority to issue summons, decide motions, and deliver subpoenas according to section 153 of the Family Court Act, as well as deciding proceedings according to section 5241 of Civil Practice Law which involves income executions for support.

What Can Support Magistrates Do?

The part that a support magistrate will play in any given court proceeding will depend on the distinct and unique features of each case. For instance, in a proceeding intended to establish paternity, the magistrate must advise both the putative father, and the mother regarding their right to access counsel. In the same circumstances, the magistrate will advise the putative father and the mother of their right to request DNA tests and other genetic marker testing, however these tests are not always appropriate or ordered as detailed below if estoppel or similar circumstances apply. If a genetic marker test is allowed, from that point, the support magistrate will be given the power to determine all matters regarding that proceeding, including the delivery of an order of filiation which officially names a man the father of a child. An order of filiation can allow a father to file for visitation or parenting time with the child, custody of the child in some cases, and, if the father is the non-custodial parent, the responsibility of paying child support. Once the order of filiation has been issued, and child support becomes relevant, the support magistrate will be given authority to make a temporary and/or final order of support. Continue reading

Hands of mother and the child: symbolize care and trust

For child support cases proceeding in a New York Family Court, the court, pursuant to statute, should make a temporary child support order, while the case is ongoing, of an amount that is enough to meet the needs of the child.  According to the law, this should be done regardless of whether immediacy or an urgent need is shown.  The law provides that even if the financial disclosure, which is required to be provided ultimately in the case, has not been yet provided, that the court should still enter the order.  If the information that would be on the financial disclosure is already provided at the time the temporary order would be entered, such as income and assets of the respondent or the parent that should be paying child support, then the court should make the temporary child support order in accordance with the child support standards act formula.  If the information is not yet available, then the child support amount to be paid should be based on the child(ren)’s needs.

Ultimately, when the child support order is finalized, the court needs to make the final order according to the child support standards act formula, unless an acceptable agreement is made for a different amount between the parties.  The payor would then be given credit for any payments made under the temporary child support order that was in existence prior to the finalization of the case.  At times, the temporary order might have been in an amount more than the final order.  If that were the case, then the payor parent might have a credit against future support payments.  The court is to make the amount of child support due under the final order retroactive to the filing date of the petition for child support.  In cases where public assistance was involved, the order can go retroactive to the date that public assistance started.  Often times there are arrears for child support due at the time the final order was made.  The arrears may be because of the retroactive date that child support is due from or as a result of the possibility that the temporary child support order was lower than the final order.  Both reasons might be applicable.  Arrears, as well as the ongoing support payments, will need to be paid to the residential custodial parent as the child support order continues. Continue reading