Articles Posted in Trials

There are various ways to approach a child custody case. For some parents, thebest 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?

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In Anonymous v. Anonymous, a husband filed a motion for summary judgment to dismiss his wife’s petition alleging he’d violated an order of protection. The order of protection had been entered without a finding of fault and directed him to stay at least 1,000 feet away from the wife’s residence and job, except for court-ordered child visitation or to go to church on Sundays. It also ordered him not to commit a family or criminal offense against her.

The wife alleged that the husband had retained a private investigator. The PI recorded the wife, and the DVD showed she’d gone into a motel and had an affair with a priest at the church where she worked. The wife claimed the husband gave the DVD to her employers, and this forced her resignation.

She argued the husband had no legitimate purpose in sending a PI to follow her, and his goal was just to cause her to lose her job and humiliate her. She claimed this was a violation of the 2009 order of protection.

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Unlike circumstances relating to child custody cases, where the testimony made by the children involved (please seemy 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

There are many considerations a court has to make when it comes to child custody cases. Though, ultimately, thecourt must put the best interests of the child first when it comes to dictating who should be given parenting or visitation rights.  There are numerous factors that come into play when helping the court to define the best interests of a specific child. For instance, one issue that the courts of New York might consider may be the financial stability of the parents in question. Alternatively, if the child in question within the case is old enough to make informed decisions about his or her own future, the wishes and requests of that child may be taken into consideration.

It’s worth noting that a child who is already suffering from the discomfort and trauma of a broken home can often benefit from avoiding any further disruption in his or her life.  This was the concern of the New York Court of Appeals in the case Lincoln v. Lincoln that established how to take testimony of children in divorce and child custody cases.  As such, it can be a good idea to consider solutions for obtaining information about the child’s wishes regarding custody, in a private format. No child would feel comfortable having to publicly share information about his or her relationship with his parents, or choose between them while either party watches. As such, “In Camera” testimony and interviews can be conducted to help provide a less harrowing experience for a child of divorce. Continue reading

Child Custody disputes and Divorces are complicated at the best of times.  Often, legally breaking down a relationship becomes moredifficult when children are involved. When a mother and father choose to separate or divorce, they not only have to think about the steps that should be taken to improve their chances of pursuing their own best interests, but they also should think carefully about the best interests of their children. That is the standard that a New York court would use.

While, in an ideal scenario, fathers and mothers seeking a divorce would carefully come to a decision about custody agreements, child support, and parenting time or visitation together, using a mediation method or collaborative law – without the strain of battling the issue out in court – family law is not always this simple. In some cases, a New York Supreme Court or Family Court judge will be forced to step into the scenario and figure out which parent should be awarded primary physical custody. In these cases, there are many factors for a judge to consider when putting the best interests of a child first, and one is the concept of who can be defined as the “primary caretaker” for the children.  Please note that the primary caretaker status is not determinative of the best interests of the children, rather it is one of the many considerations that can be taken into account. During this blog, I will discuss which details can be provided to show who can be regarded as the primary caretaker of a child, and what it means to be a primary caretaker.  Continue reading

A noncustodial parent is required to pay child support to a custodial parent in New York until a child is 21 years old. In many cases, this means that support continues to be paid while a child is in college.

Basic child support is calculated based on a formula using initially the first $143,000 (as of 2016, this number changes over time) of both parents’ combined income and a discretionary amount or an amount based on the same formula for income that exceeds $143,000.00. For a noncustodial parent of one child, basic support is their pro-rata share of 17% of that $143,000, a “cap” that changes every two years in addition to any amount ordered above that cap as mentioned above. The percentage changes based on the number of children. However, a child can also receive add-on support if his or her parents’ combined income is beyond that cap, after the court looks at what are called “paragraph f” factors. Under Domestic Relations Law 240 1-b(c)(7), the court can award educational expenses, such as college costs, as an add-on to the basic support.

This type of support is not mandatory, however. When deciding whether to make the award, the court may consider the parents’ financial circumstances, their educational backgrounds, the parents’ history of paying for these types of expenses to the child at issue or other children, and the child’s academic qualifications. However, college expenses usually aren’t awarded before ascertaining whether a particular child will actually attend college.

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According to the New York Domestic Relations Law, as part of a matrimonial case, such as for divorce, annulment, separation, or obtaining maintenance or equitable distribution following a foreign divorce judgement, the court may award counsel fees. In New York proceedings it is well established that the Court in domestic relations cases has the discretion to award fees depending on the parties’ circumstances, the merits of each sides positions and the complexities involved in the particular case.  As part of a post nuptial agreement, pre nuptial agreement, separation agreement, or stipulation of settlement of a divorce, often times a provision is included about future payment of the other side’s counsel fees by the party that takes a non meritorious position.  In those situations the court will usually seek to enforce the terms of the parties agreement regarding counsel fee applications.  The balance of this blog is about cases that are not covered by counsel fee clauses.

The underlying purpose and rationale behind many counsel fee awards is to make sure that a “needy” spouse has the ability to defend themselves, or carry out legal actions in court. Through counsel fees, the New York court is able to situate both spouses on an equal economic footing when it comes to using legal help and carrying out court proceedings. What’s more, these fees can help to ensure that during litigation, both spouses have equal leverage. The Supreme Court of New York may deliver an order to either spouse involved in the case, requesting them to directly pay counsel fees to an attorney for the other spouse, so as to enable that spouse’s continued participation in the case.  Courts can consider:  type of services rendered; the actual time used; the professional experience and reputation of the counsel; and the respective financial situation of each side. Continue reading

Fair Hearing when Challenging “Indicated Findings” by Child Protective Services or the

Administration For Children’s Services (CPS and ACS)

No matter what the reason behind a hearing may be, one thing that all of my clients should have access to is a fair hearing if they want it. The right to a fair trial is fundamental to the rule of law, and it applies to civil and criminal cases alike. The right to a fair trial or hearing requires a fair public hearing within a reasonable time by an impartial tribunal established by the law. This blog will cover exactly how a fair hearing should go when it is for the purpose of challenging an “indicated” finding by Child Protective Services.

So, if the case has proceeded to the scheduling of a hearing, that means a caseworker has investigated the case and made an initial determination that the case was “founded” or “indicated”. This means that they believed there was some credible evidence to believe that the allegations involving child neglect or abuse occurred. It also means that the person that was “indicated” or who the case was “founded” against made a timely request to challenge the finding. An administrative review happened after the timely challenge and the review did not overturn the initial indicated finding. Therefore the fair hearing is now scheduled. Continue reading

What happens in a divorce when someone fails to make financial disclosure or financial disclosure in


Parties to a divorce in New York are entitled to complete financial disclosure by the other side. There are a number of ways for a divorce lawyer to obtain this disclosure. Usually one of the first documents exchanged in a divorce is called a Net Worth Statement. In most instances both the Husband and Wife each fill out their own respective Statement of Net Worth. A Net Worth Statement is essentially an affidavit, sworn to before a notary public that is a disclosure by both the Husband and Wife of their respective financial situations.

The Net Worth Statement consists of: the caption of the case; biological or statistical facts such as date of marriage, children names and ages, addresses, occupations, employers, etc.; monthly or weekly expenses like for housing expenses, food, utilities, insurance, car payments, medical payments, taxes to name a few; income from all sources including employment, investments, social security, disability and other areas; assets including cash, checking accounts, securities (notes, bonds, stocks, options), loans and account receivables, cash surrender value of life insurance, business interests, vehicles, real estate, trusts, retirement assets (pensions, IRAS, 401Ks etc.), contingent interests, household furnishings and jewelry among other items; liabilities like accounts payable, notes payable, installment accounts payable, brokers’ margin accounts, mortgages, taxes, loans on life insurance policies and other liabilities; assets transferred in the past three years; support requirements; counsel fee requirements; accountant and appraisal fee requirements, and other financial data that a court or anyone involved with the case might be interested in. Net Worth Statements are sometimes voluntarily exchanged by the parties through their lawyers (I also like to have both the Husband and Wife exchange them in my mediations) before the necessity of court appearances but are required to be produced at the Preliminary Conference. Continue reading

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