Articles Posted in Family Court

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

The New Significant Other and Child Support

Last week’s blog article was about child custody and the new boyfriend, girlfriend, husband or wife. Like with child custody, I frequently get inquiries and new cases about child support when there are new significant others. As always, people should keep in mind that there are different processes available to deal with child support, like other family law issues, such as mediation, litigation, negotiation, and collaborative law. Why is it that a new relationship might cause child support issues? Like with child custody, the reasons this happens with child support can vary and be complex ranging from emotional issues, such as jealousy, to what is actually supposed to be the focus of child support cases, financial matters.

From a legal standpoint, I think one of the more important reasons is that the gross income of the parent that has to pay child support (the non-residential custodial parent) is reduced before the guideline child support calculation is made, by support orders that are first in time or support that is actually being paid pursuant to a written agreement. The first in time support order could be for child support or alimony also known as maintenance. So, the need to address child support, when there is a new relationship, may simply boil down to a race to try to maximize finances. Continue reading

The New Significant Other Phenomena

When it comes to dealing with visitation time, parenting rights, child custody, and child support – there are a lot of sensitive and complicated issues to consider. One set of situations I deal with somewhat frequently as a family lawyer within Long Island and in and around the City, are those that arise when a biological parent of a child – with rights regarding that child – gets a new significant other, or partner be it a girlfriend, boyfriend, husband or wife.

It’s a fact that is both inevitable and uncomfortable at the same time – when you engage in a divorce or break up with your partner, the chances are that you will eventually have to deal with your ex-partner getting involved with a new romantic interest. Likewise, life will go on for you and you too will find love again. Although this may not impact people who don’t have a child with their ex, it’s obvious that concerns can arise when a divorced couple have custody, visitation rights, and child support matters to consider. These issues can be sorted out through mediation, litigation, negotiations, or collaborative law. Continue reading

This blog article will discuss some, but certainly not all, of the features and reasons for or against having payments going through the New York Support Collection Unit. Any recipient of child support has the right to ask that the court order provide that the payments be made through the Support Collection Unit. Payments could initially be made by the payor sending payments to the Support Collection Unit in Albany, New York. As long as the payments are sent on a timely basis, in that case an income deduction order or income execution order might be avoided. One disadvantage to the custodial parent or payee of child support for payments going through the Support Collection Unit is that it takes longer for the payments to be received by that parent. The payments need to go through Albany, get processed, and then distributed.

The Support Collection Unit, however, will keep a clear record of payments received. In the event of a “violation” case, in court, a representative from the Support Collection Unit can be summoned to the court room to provide a statement and report of payments received and balances due, if any. A lot of non-custodial parents like this idea as well since it eliminates debate about what was paid or not. Something for everyone to keep in mind when payments are ordered through the Support Collection Unit is that payments made in some other fashion might not get credited as child support. For example, if someone gives a direct payment of cash there is a danger that the recipient would not acknowledge it or that it would be called a “gift” instead of child support. Usually the question is asked to the custodial parent whether there have been any direct child support payments, even though the payments should have been through the support collection unit, but paying in some other way can be dangerous territory. Continue reading

In New York family law, often whether or not travel by one parent to a foreign nation with the child(ren) should be permitted is an issue that arises. I often look to whether the other country is a signatory to the Hague Convention or not when looking at the issue. The Hague Abduction Convention in law is a form of treaty or accord that was developed by the Hague Conference. Treaties are a method of establishing international law. The concept offers a method for returning a child who was taken from one country that is a member of the Hague convention, to another. In other words, the purpose behind the convention is to offer protection to children against the potential damage that may be caused by international abduction by another parent or other person, prompting the quick return of any children involved back to their habitual residence country. The convention also helps to secure and organize the rights associated with access to a child in parental time or visitation.

The concept centers on the fact that matters of custody and visitation should be determined by the court in the residential or habitual country of the child, meaning that the Convention champions the best interests of the child, and provides the opportunity to access a civil remedy that is shared with the other member nations. Legal parties use the Hague Convention to preserve an existing child custody arrangement that was created before the child was wrongfully removed from a place or circumstance. This deters parents from crossing over international boundaries in an attempt to avoid the court orders of the home nation. Individuals often wonder why they may need to access the convention if they already have an order of custody, and the answer to this is that, firstly, alternative countries may not recognize New York or United States court orders. Continue reading

Special Immigrant Juvenile Status in New York                                                         

 

Immigration and family law come together in this area of law. Some children living in the U.S. without a legal immigration status may need to access humanitarian protection for reasons of abandonment, abuse, or neglect. Special Immigrant Juvenile Status (SIJS) is a classification that may allow for vulnerable children to apply for permanent and lawful residence in the United States. To qualify for SIJS, the child must meet the following criteria:

  • Applicant must be under 21 years of age
  • Applicant must be unmarried
  • Applicant must be declared dependent within Juvenile court (this is where a family law attorney can be of assistance)
  • Reunification with one or both of the applicant’s parents must be considered not viable due reasons of neglect, abandonment, abuse, or a similar basis under the law
  • The court must determine that it is not in the best interests of the applicant to return to their last country of residence, or country of nationality.

There are numerous benefits to obtaining Special Immigrant Juvenile Status. Firstly, SIJS waives numerous forms of inadmissibility that could otherwise restrict an immigrant from establishing themselves as a permanent lawful resident. SIJS waives working without authorization, unlawful entry, certain immigration violations, and status as a public charge. Applying for SIJS requires the consideration of numerous steps, with the help of a trained attorney.

A juvenile court is the court within New York that has jurisdiction under the law to make determinations regarding the care and custody of children. In many states, this can refer to delinquency cases, dependency cases, or probate and guardianship matters. Continue reading

The Difference between Family Court and Criminal Court Orders of Protection in New York

An order of protection is an official document issued by the court with the intention to limit the behavior of someone who has been alleged to harm or threaten another person. These orders are used in addressing numerous claimed safety issues, including matters of domestic violence. Supreme courts, family courts, and criminal courts are all permitted to issue orders of protection. So what’s the difference between an order of protection in family court, and one that is issued in criminal court?

First things first, a family court case is not regarded as a criminal proceeding. This means that for an order of protection to be permanently granted in family court, unless an agreement is made for the order, the petitioner would need to prove their case with the assistance of an experienced family law attorney by a “preponderance of the evidence” rather than the higher burden of proof in criminal matters . In criminal cases, if a plea deal has not been made, the case needs to proven “beyond a reasonable doubt” for a final order of protection to be issued. The accused must is convicted of a violation of the Penal Law, which requires a higher burden of proof than is expected in family court. Continue reading

Best Interest Standard

In many legal matters, the focus of a court is often into the past of the parties involved in an attempt to resolve the issues. On the other hand, in a custody case, the court attempts to perceive the future and predict which parent will provide a better environment for the child in question. To this end, the New York courts employ various methods – relying on the use of expert testimony, and examining past behavior to predict future actions. Though the statutory law in custody in New York is somewhat sparse, the Domestic Relations Law 70 provides that there will be no prima facie right to custody for either parent – rather the court must determine solely what is in the best interests of the child.

Though most people are relatively familiar with the “best interests” term, it regularly defies a firm definition. Because cases regarding children are sensitive in their very nature, each case is decided in regards to its own particular merits. However, it’s worth noting that some definitions do remain consistent from one case to the next, and so too do certain factors that courts will consider in an initial custody determination. Following, we will consider a number of factors that are considered by the New York court in establishing the “best interests” of a child. The list that we will discuss is not exclusive by any means, however it will provide a general idea of some of the things courts consider in coming to a decision. Great deference is permitted to the trial court by appellate courts since the trial courts are in the best position to weigh the credibility and testimony in a case(Eschbach v. Eschbach 56 N.Y.2d 167).   This blog will summarize the best interests standard as articulated in the Eschbach case which remains an important case for child custody matters in New York to date. Continue reading

 

When dealing with issues of family law, there are often many considerations to take into account, from the goals that you are hoping to achieve, to the appropriate steps you must take, the way you should present your case in court, and the factors that could diminish your chances of a successful outcome. Sometimes, it can feel as though you are completely at the mercy of the judge presiding over your case when you are in court, as this is the person with the discretion to decide what the results of your legal proceeding will be. However, it’s important to remember that with the right legal guidance, it is possible for parties and their lawyers to influence and shape the result that the judge decides upon. The following information refers to when people need the court to decide the case or want to be guided by the default law. Remember, that many different things can be agreed upon whether in litigation, mediation, a collaborative case or settlement negotiation.

Child support, despite having a formula contained in the New York Child Support Standards Act, still is chock full of a lot of discretionary matters. Calculating the appropriate amount of child support for any given case can be something of a complex matter and certain nuances will apply to particular circumstances. For example, if there is a combined income between the two parents that is in excess of $141,000, there could be discretion on the amount of child support – if any – that should be ordered for the income that exceeds the first $141,000.00. Similarly, the determination of what amount of income to utilize within the formula is also a significant source of debate, as there is discretion about whether certain employment perks should be included in the income or not. Income can also be determined based on the previous employment of an individual, or the expenses paid by other people on that party’s behalf (this is called imputation of income). Once the amount of income has been decided, the combined income will help to determine a rate of child support by multiplying the amount by either 17% for one child, 25% for two children, 29% for three children, 31% for four children, or 35% for more than five children. Then the non-residential custodial parent would be responsible, as a basic amount of child support, to pay their pro-rata share of the combined child support obligation. Currently, the presumption is that the percentages of this formula create the correct level of child support for the first $141,000 of the combined parental income. That threshold number increases from year to year. Continue reading

Family Court In New York

If you find yourself in a position where you need to deal with a family law matter, then you may end up presenting your case at the Family Court in your local county. Venue is usually proper in a County in which one of the parties resides. Regardless of the circumstances, presenting your case within a court setting can be incredibly nerve-wracking and worrisome, which is why I often try to put my client’s minds at rest by discussing the nuances of family court with them beforehand.

A Family Court is the court that is convened to decide upon matters and make orders regarding family law, such as when dealing with child custody and visitation (now called parenting time), orders of protection (family offense cases), support matters, juvenile delinquency cases, abuse, neglect, termination of parental rights, PINS (Person in Need of Supervision), and adoptions. A family court in New York can not get people divorced and do not deal with equitable distribution of marital assets and property claims. Continue reading