Articles Posted in Family Court

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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 ›

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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 ›

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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 ›

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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 ›

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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 ›

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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 ›

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Challenging an Indicated Finding by Child Protective Services

If you ever discover yourself within a situation wherein you have been made the subject of a report made to the New York Child Protective Services or Administration of Children’s Services (CPS/ACS), it is important to ensure you know your rights. Although an experienced lawyer can be your first line of attack when challenging an indicated finding, it can be useful to learn as much as possible at the process of dealing with such situations. This information is primarily based on the New York Social Services Law.

First of all, it is worth noting that the subject of a report to ACS/CPS retains the right to avoid cooperating in their investigation. The subject is not required to allow the caseworker into their home, and they are not under any requirement to speak with the caseworker, either. If the subject in question refuses to cooperate in these circumstances, then the protective services do not have the ability to force their way into a home. Instead, caseworkers must approach the Family Court and request a judge to evaluate the situation and decide whether there is sufficient evidence to order that the subject allow child protective services into their home.  Please do not take this entry as advice not to cooperate when Child Protective Service is trying to make an investigation as not cooperating with the investigators might have its own negative consequences.  Also, many, if not most investigations, result in an “unfounded” determination.  The information that one does not have to cooperate without a court order is simply to inform about rights that a lot of people do not know about.  Continue reading ›

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An Overview of Private Placement Adoption in New York

Adoptions take place when one or two people take another individual (generally a child) to be their own child. When someone chooses to legally adopt a child, they will have all of the responsibilities and rights of a natural payment, and the child will retain all of the rights they would have had they been born naturally to the new family. The adopted child will be given a new birth certificate, and their last name will be the same as yours.

According to the New York Domestic Relations law, a single adult, two intimate adults, or a married couple may be permitted to adopt. Adoptions can be conducted through private placements including adult, step parent and foster parent adoptions. Individuals in need of further information regarding the topic of adoption should speak to a Long Island or New York family law attorney about their rights. Continue reading ›

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People dealing with allegations involving domestic violence, concerning family, as defined under New York law, whether as the victim or the accused, have different forums in New York that they might find handling their case.  Family can be blood relations, people with children in common, and people in intimate relationships.  Please call or see our other blog entries or website for more information on what is defined as a family under New York Law.

Orders of protection may be granted to protect a spouse and/or children by the Supreme Court as part of a divorce or matrimonial proceedings.  An order of protection case, aka a Family Offense, might be started in the Family Courts.  Unlike when someone receives an order of protection through a criminal court, a Family Offense proceeding is not about crime and punishment.  The Supreme Court, Family Courts and the Criminal courts, however, can order incarceration if orders of protection are violated. Continue reading ›

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Over time, the role of attorney for the child in custody and parenting time (visitation) cases has evolved and developed in New York. Their name has changed as well since they are properly called attorney for the child(ren) now whereas the job used to be known as “law guardian”. While many used to believe the role of the attorney for the child was to determine what’s in the best interests of the child, it is clear now that this is not supposed to be their job. The attorney for the child’s role is defined in Rule 7.2 of the Chief Judge in New York.

The rule requires the attorney for the child, like an attorney for any other party in the case (such as mom or dad lawyer’s), to advocate for their client’s position with zeal. If the child is mature enough to be capable of making a knowing, intelligent and voluntary judgment, even if the attorney for the child believes the child’s wishes are not in his or her best interest, they should advocate for what the child says theywant. The trier of fact, be it a judge or a referee, however is required to make decisions on what they determine is in the child’s best interests. So the best interests standard still controls, it however is not the attorney for the child’s job, usually, to advocate for the best interests. Continue reading ›

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