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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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Approaching and Understanding the Emotional Aspects of Divorce

In the materials from my mediation training at the Center for Mediation and Training (which this blog article summarizes and is based upon), and as my years of practice as a matrimonial attorney and mediator confirmed, I learned there are the following emotional parts of a divorce. Divorce can be a significant life event in any circumstance. Statistics have frequently shown that even in a divorce that appears to be relatively peaceful, the parties involved can take between three and five years to recover from the ordeal and feel comfortable in their lives again. Just like any other life crisis, divorce can be a process that stirs up unresolved issues and feelings from the past, adding them onto present emotions and creating an intense experience which can translate into outward behavior.

Adjusting to divorce can happen in a number of predictable stages that cannot be rushed or avoided. Similarly to any other developmental process, the successful resolution of each stage will depend fundamentally on the resolution of the preceding one. An important thing to keep in mind when you are dealing with the impact that a divorce has had on you, is that your whole family system will be affected. What’s more, the process of adjusting to a divorce can differ depending on where your current family is in its life cycle. For example, a divorce can feel a lot different to a family with adolescent children than it would to a family with very young children. Continue reading ›

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In a recent case decided by the New York County Supreme Court, Baidoo v. Blood-Dzraku, 2015 N.Y. Misc. Lexis 97 (New York County S.Ct. 2015), service in a divorce case through Facebook was ordered as valid service.  Previously, I have blogged about service problems in divorces and service by newspaper publication and other alternative methods. To recap, most people are familiar with the concept of the in-hand delivery of court papers as it has been frequently depicted in movies and television shows throughout popular culture. Generally, courts prefer this form of delivery, as it is often the most reliable way of ensuring that the individual in question has received the papers as intended. In New York, under the Civil Practice Law and Rules (CPLR) Section 308(1) this service is enumerated, and the process server swears an affidavit that they did deliver the paper by hand. After an action has begun, the CPLR permits 120 days for the service to be made.

Unfortunately, the issue with personal service is that in order for it to be accomplished successfully, the plaintiff must have some method of locating the defendant. Even in circumstances where the location of the defendant is known, there are times when it is logistically difficult for a server to gain the proximity required for a personal delivery. Fortunately, the Domestic Relations Law offers a solution for individuals who face these circumstances, permitting plaintiffs to utilize alternative methods beneath the CPLR that does not require an “in-hand” delivery but only if the court orders alternate service is permissible. Despite this, some people still believe that the alternatives expected in these legal proceedings are not current with the modern practices of the times. Continue reading ›

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Comparing Divorce Litigation, Collaborative Law, Mediation and Negotiated Settlements

In the process of a divorce or case involving family law, you will often find that there are many different routes available to you. As a trained mediator, litigator, collaborative law attorney and legal professional, I have had experience with all of these varying paths, and have noted that what may be the ideal course of action for one couple or individual, may not be the right direction for another. Neither mediation, nor collaboration, litigation nor negotiation will be the worst, or best choice in all cases. The choice of which approach to use will depend on a deep consideration of your personal circumstances, your individual preferences, and your legal needs.

Litigation

The first, and perhaps most well-known option for divorces to consider, is that of litigation. Litigation is the term that is used to describe the proceedings that may be initiated by two opposing parties in an effort to defend or enforce a given legal right. Cases can settle at any time before or during a trial, but ultimately litigation will be decided by a court after the argument has been heard and decided by a judge or jury on the issue of grounds only. The process of initiating litigation proceedings is voluntary for the plaintiff, but mandatory for the defendant once selected and served, and the formality of the case typically surrounds a formal process bound by a number of crucial rules. 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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Decisions to be made on Child Support

Whatever the process chosen, be it mediation, litigation, collaborative law, or settlement negotiations certain decisions can be made regarding child support issues for the children. After a divorce, or pursuant to a child support application by the non-residential custodial parent whether married or not, child support is the money that will be paid to the custodial parent, as a method of helping them to pay for reasonable needs, such as food, clothing, shelter, education, health and maintenance. Sometimes, additional support is required to cover extra costs, such as extracurricular expenses, private school tuition, life insurance, college and more. There are numerous important decisions to make when it comes to understanding and arranging child support, and perhaps the first thing that needs to be considered, is how the amount will be determined.

Establishing Child Support Amount

There is a formula used by New York child support lawyers and judges which is set forth in what is called the Child Support Standards Act. The Child Support Standards Act may be found in both the New York Family Court Act and the New York Domestic Relations Law. This formula was designed to provide an insight into the amount a non-custodial parent should be required to pay for child support. The policy behind this statute was to provide standard amounts which people of a similar income should be expected to pay. The decisions that need to be made on child support can range from caps on the income considered, to when it will be paid, how extracurricular activities will be paid for, and how modifications will be made and cost of living adjustments will be dealt with. The first step is to consider each party’s gross income. Continue reading ›

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Decisions to be made on Equitable Distribution

The term “equitable distribution” refers to the method that is used to divide obligations, property and assets between spouses as a part of divorce proceedings. An important concept to understand is that equitable distribution doesn’t necessarily mean that things are divided “equally”, only that they are divided fairly according to the law. The doctrine of equitable distribution is utilized to consider the future financial circumstances of each spouse following the termination of the marriage. Although equitable distribution is a somewhat flexible system, it can be difficult to predict the outcome of any case, as some of the factors that the court considers are quite subjective.

The process of equitable distribution in regards to property involves three major steps:

  1. The determination of which property can be established as part of the equitable distribution
  2. The valuation of the property to be considered
  3. The actual division of the property or assets

Continue reading ›

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Decisions to be made on Custody and Parenting Time                                                

Over the years, I have handled a number of cases associated with custody and parenting time (or visitation), particularly throughout Nassau County, Suffolk County, Queens, New York City and nearby areas. In my experience, I have found that often, the process of dealing with custody and visitation can differ widely from one situation to the next, however, a certain collection of considerations and decisions will need to be made in any case. In any legal matter concerning children, if an agreement is not made, the court will be required to consider the situation and decide these issues according to the best interests of the child(ren). Whether the topics are decided upon in a mediation, litigation, collaborative law case or settlement negotiation, the same topics need to be covered.

Legal Custody and Residency

There are two significant areas when it comes to determining child custody that need to be set forth. The first concerns where the children will live. When a child lives with a particular parent, the majority of the time, according to a court order, that parent is said to have residential custody under the law. The second major concept that needs to be defined through a custody order is who has the capacity to make decisions on the behalf of the child. The parent or couple responsible for decision making under court order are regarded as having “legal custody.” 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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Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.

We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method. Continue reading ›

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