Articles Posted in Family Court

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Today’s blog will be a break from my typical legal analysis of family law issues. Here I focus on tips, facts and suggestions pertaining to the children of the transitioning families that I have picked up in my time working as a matrimonial, family law attorney and mediator in the great state of New York. As usual, when I veer off my exact topic of expertise, I like to throw in a disclaimer that I am not an expert in psychology or sociology. Therefore, I recommend speaking with trained and licensed therapists that specialize in children and family matters about your questions and to verify the accuracy or inaccuracy of anything in this article.

One statement that I am qualified to make is that parents or parties involved in a child custody and parenting time or visitation case, whether it is pursuant to a divorce or family court custody case, are advised not to talk to the kids about the case. In most instances the court will assign an attorney for the child(ren) who has training and experience in speaking with the kids about the matter. Ultimately the court might hold what is called an “in-camera” interview with the child or children before issuing a decision on custody and parenting time. Continue reading ›

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Last week, I blogged about temporary or pendente lite maintenance.  This blog will discuss temporary child support or pendente lite (while the case is pending) child support in New York cases.  Pendente lite child support is the child support that is either agreed upon or awarded by a court while a divorce or legal separation proceeding is pending and not yet resolved.  In Family Court child support cases, the amount that is paid while the case is pending and not yet resolved is called temporary child support.

The Child Support Standards Act dictates the presumptive amounts of child support to be applied in both the Supreme Court or Family Court cases.  The law for Supreme Court cases is found in the Domestic Relations Law Section 240 [1-b].  The Family Court Act contains the provisions in Family Court Act Section 413.  Courts may use the Child Support Standards Act in applications for pendente lite or temporary child support but they are not required to do it.  Davydova v Sasonov, 109 A.D.3d 955, 957-958, (N.Y. App. Div. 2d Dep’t 2013). Continue reading ›

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Temporary orders of protection are issued by the Family Court (or the Supreme Court in divorce cases) and can last as long as a Family Offense case is pending in the court. Final orders of protection are those that are issued at the end of the case. Family Offense petitions are the method by which order of protection cases are initiated in the New York Family Courts. If the filed petition makes out the elements of a “Family Offense”, the court will issue a temporary order. This initial order is based on the one sided presentation by the applicant and requires the other side, or respondent to observe certain behaviors to protect the alleged victim. The respondent will have a right to contest the petition. Each county has different procedures on the length of the temporary order of protection which I have seen in my practice as a New York City, Suffolk County and Nassau County Order of Protection Lawyer.

For example, some courts make the temporary order for only the length of time until the next court appearance.   Usually the temporary order will then be continued again until the next court appearance if the case remains pending. Other venues issue the temporary order to last for six months or a different time period. This does not mean that the order will definitively stay in place for six months or the other time period as court appearances will most likely be scheduled for sooner time periods than the order is set to expire. If the case is still not resolved before the order expires then, usually, the court will extend the temporary order while the case is still unresolved. Some courts will extend or continue the orders automatically, however, others will only do so upon a request. Therefore, it is important for a party or better yet, their lawyer to pay attention to when an order is set to expire so appropriate requests can be made to the court to extend it or arguments be made against the order continuing or being extended.

The common ways to resolve a Family Offense petition is by an agreement for an order of protection without an admission; withdrawal of the petition; dismissal of the petition before or after a trial; or the finding that a family offense petition has been committed and an order of protection put into place. The order of protection that is made at the end of a case becomes a permanent order of protection. It does not mean an order of protection that will be in place forever, rather it is permanent as it remains in place for a length of time after the case is over in contrast to a temporary order of protection. Continue reading ›

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Claims of parental alienation in child custody, matrimonial and family law cases abound. This article will focus upon parental alienation in the context of child custody and parenting time or visitation cases.  I have previously written about constructive emancipation which is applicable to child support cases.  The ultimate sanction, if parental alienation has risen to a point that the relationship between one parent and a child is irreparable, is to have the child declared constructively emancipated and to terminate child support.  This is the remedy for children of employable age.  For children of less than employable age there is case authority that stands for the proposition that child support should be suspended until visitation with the non-custodial parent resumes.  Please see my earlier blog article which discusses constructive emancipation in detail.

It is important to point out that certain actions that would be characterized as alienation, if they were taken for no reason, might be held by a court to be justified under certain circumstances. For example, protecting a child from abuse, be it physical or mental, can be found to be a proper justification for limiting contact.  What constitutes and does not constitute parental alienation is a judicial determination that is shaped by the presentation of facts through testimony and argument.  Something for both sides to keep in mind is that baseless allegations of abuse can be a reason for a court to find that the accuser puts their interests above the children.  Specifically, though, what is parental alienation?

Parental alienation has been described by psychologists as behavior, whether intended or unconscious, by one parent that poisons the child or children against the other parent. When such poisoning occurs, the children take on mischaracterizations or embellish misrepresentations that a parent teaches them about the other parent.  Interfering with another parent’s visitation or parenting time is one form of alienating behavior.  Continue reading ›

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Juvenile delinquency cases are handled in the New York Family Courts.  If a child is determined to be a juvenile delinquent, the court is there to issue an order that not only is designed protect the community, but is also there to consider the needs and best interest of the juvenile delinquent since he or she is a child.  Right away, the difference between adult criminal defendants and juvenile delinquents is apparent since the best needs of the juvenile delinquent are included as a proper consideration in the purpose of article 3 of the Family Court Act, the juvenile delinquent article.  I have found in my practice all around the New York City and surrounding areas as a criminal defense attorney and Long Island Family Law Lawyer that there are nuances in handling juvenile matters.

Juvenile Delinquents are children over seven and under sixteen that are found to have done an act, which if committed by an adult would be a crime.  The treatment is given either because the juvenile is to be considered not criminally responsible because of his or her infancy or the case was removed from a criminal court to the family court.  Generally, the same statutes of limitations that apply to adult criminal proceedings apply to juveniles except for certain designated felonies which also must be commenced before the respondent’s eighteenth or twenty first birthdays depending on the felony.  The criminal procedure law is not applicable to juvenile delinquency proceedings except in certain instances.  For example, the Family Court Acts specifically provides that double jeopardy is also applicable to juvenile proceedings.  The Family Court Act also specifically requires that the defenses outlined in articles thirty five and section 30.05 of the penal law apply to juvenile delinquency cases.

When an alleged juvenile offender is arrested they are only fingerprinted if they are certain ages and are accused of certain felonies.  The specifics ages and charges for which fingerprinting apply are outlined in the Family Court Act Section 306.  The trier of fact in a juvenile proceeding is a judge.  There are no jury trials in Family Court.  The Family Court Act dictates the applicable rules of evidence.  The burden of proof, like for adults, is beyond a reasonable doubt which is the highest burden in our justice system.  If the Respondent is found to have committed a juvenile delinquency act beyond a reasonable doubt then the case shifts to a dispositional hearing.  The Respondent might be conditionally discharged, put on probation, or placed in custody among other alternatives.  Again the needs of the Respondent and safety of the community are weighed. Continue reading ›

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The law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant. Continue reading ›

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This article is meant to provide some background about divorce and family law matters in the New York City borough of Queens, New York. As mentioned in prior blog entries, although the statutes are the same for everyone in New York State, there are different rules and procedures that change from County to County and even court room to court room. New York is made up of four Appellate Divisions.  Queens County happens to be located in what is called the Second Judicial Department and therefore the case law coming out of the Second Department is controlling for Queens County divorce and family law cases. The New York Court of Appeals is the highest court in New York. Therefore, case law from the New York Court of Appeals is controlling on Queens County as well as everywhere else in the State. Decisions from the three other judicial departments would be influential if the Second Department has not directly ruled on the matter. Although I practice all around the Long Island and New York City area, which includes both the First and Second Judicial Departments, my office and most of my cases are from areas located within the Second Judicial Department. This familiarity is helpful in my practice as a Queens County Family Law attorney.

Throughout my legal career, I have handled a great deal of cases in Queens County. Since my office is Nassau County, New York, conveniently bordering Queens, it is a short ride to the courts in Queens. Besides Nassau County, Queens and Suffolk are my highest volume geographic areas at this time. First I will discuss the Queens County Supreme Court, followed by information about the Queens County Family court.

Like everywhere else in New York, a person that wants to file a divorce case in Queens needs to use the Supreme Court. The Queens County Supreme Court is located at 88-11 Sutphin Boulevard Jamaica, New York 11435. Issues that arise for couples after a divorce (post-judgment) can be filed and dealt with at the Queens County Supreme Court. Supreme Court Justices are assigned cases that are filed in the Queens Supreme Court. Justices are elected Judges, but, Judicial Hearing Officers (who are usually former judges) may be assigned for trials or a hearing on one or all of the issues. The consent of the parties is usually obtained before sending it to a Judicial Hearing Officer since everyone has the right to have their cases heard in front of a Judge. In Queens, like every other County in New York, incidentally the only issues in a divorce that would go in front of a jury would be a grounds trial. Everything else would be decided by the Judge or a Queens Supreme Court Justice. Grounds trials, particularly, jury grounds trials are rare but they are a possibility. Continue reading ›

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Can the New York courts exercise jurisdiction over a child custody case?  In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.

The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States.  New York’s version of the Act begins in the Domestic Relations Law Section 75.  The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order.  First, a state must meet the definition of home state to be able to make an order.  If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there.  For children over six months of age, the home state is where the child resided for the previous six months.  If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status.  If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.

Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there.  If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction.  The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state.  In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction. Continue reading ›

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The Uniform Interstate Family Support Act (UIFSA) has been adopted, in some form, by every state in the United States.  New York’s version of the law may be found in the New York Family Court Act Article 5-B.    The Act became necessary since parents and children end up having connections to multiple states.  A mechanism to determine which states have the power to initiate or modify a support order in each particular instance was needed.  The law also provides which state’s law should be applied when looking at child support issues.  New York and Long Island Child Support Lawyers have to sort out interstate support issues on a daily basis.

The child support laws can vary widely from state to state, therefore which state law is being applied is an important determination.  For example, people are required to support their children until age 21 in New York, unless they are sooner emancipated, while in other jurisdictions the age is 18.   The guideline amount of child support to be paid is different from state to state as well.   In New York, the guideline amount of support for one child is based on 17 percent of income while elsewhere different guidelines apply.

If there are proceedings simultaneously going on in two different states, the Act will help deterrmine which state should exercise jurisdiction.  If New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jursidiction.  New York employers, under the law, are supposed to treat income-withholding orders from another state the same as an order made in New York.  Orders from other states can be enforced by the Support Collection Unit in this state, as long as there is not a contest to enforcing the order without registering it. Continue reading ›

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Habeas Corpus is another Latin term, used in legal proceedings which means “You have the body”. This blog entry will refer to the use of the term in family law proceedings which, of course, has a different application than in criminal law proceedings which also make use of Writs of Habeas Corpus. Usually, the writ itself is an order from the Family Court or Supreme Court in New York directing someone that has a child to bring that child before the court on a specified date and time. The underlying premise necessary to support an application for a Writ of Habeas Corpus is that the child is being wrongfully held by another. This wrongful detention could be in violation of someone’s custody or parenting time order. New York or Long Island Family Law Lawyers can use Writs of Habeas Corpus as a tool to help their clients in child custody and parenting time disputes.

At times, the Writ might include a temporary custody order, but usually the Writ simply directs the production of the child. Further proceedings can ensue in the court after the production date regarding custody, parenting time, and perhaps contempt. If the person does not comply with the Writ, they will be in contempt and could face the wrath of the court which might include relinquishment of custody, incarceration, and likely a warrant for their arrest for failure to come to obey a court order. Sometimes, once the child is brought before the court, the court might direct the child to be given to the petitioner as they are entitled to custody or to exercise their parenting time. The Writ of Habeas Corpus proceedings often end on the date the child is brought to the court as the Writ is considered satisfied. At other times further proceedings are necessary.

So, what needs to be included in an application for a Writ of Habeas Corpus? The supporting papers should first set forth the relationship of the Petitioner to the children, such as Father, Mother, grandparent, or otherwise. Next, the application should detail that the subject children are in the physical custody of the Respondent and the time since that has been the situation. In cases where the Petitioner legally is entitled to custody, the application should set forth how the Respondent improperly and unlawfully removed or withheld the child from the Petitioner. This might mean that another parent or person took the children without authority to do so or refused to return the children after their allotted parenting time or visitation period. In cases where the Petitioner is not the residential custodial parent of the child(ren), the allegations to be detailed in the petition usually will allege that the Petitioner was improperly denied their parenting or visitation time. Continue reading ›

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