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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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An order to pay child support or maintenance, that is part of a divorce judgment, can be enforced by filing a violation or contempt petition in the Supreme Court after the entry of a Judgment of Divorce. If exclusive jurisdiction was not reserved in the Supreme Court for dealing with future matters involving child support or maintenance, then either the Family Court or the Supreme Court could be utilized to bring the violation or contempt application. People for which the order was initiated in the Family Court for spousal or child support can bring their violation petition in the Family Court. When there is a choice between the Family Court and Supreme Court, there might be different reasons or motivations for choosing either one. For example, a party might choose the Supreme Court because they also want to discuss enforcement of a property settlement or child custody issues in the same case. The Family Court separates support issues from child custody issues into different cases, which are handled in different court rooms at different times. Also, the Family Court does not have jurisdiction over a property settlement. Other parties might choose the Family Court as they want to focus on one issue at a time or to avoid the more detailed paperwork associated with the Supreme Court. As a New York City and Long Island Child Support Lawyer that handles cases all over the area, I regularly appear in both the Supreme and Family Courts.

Usually, the contempt motion is brought by what is called an Order to Show Cause when it is done in the Supreme Court. Typically, the structure of an Order to Show Cause starts with the order pages, which are signed by the Judge, directing the other side to come to the court and show cause why an order should not be issued punishing the person for failure to pay the maintenance, child support or other requested relief. After the order pages, an affidavit from the client that outlines the reasons for making the motion and what they would like the court to do usually follows the aforementioned order pages that were signed by the Judge. After the affidavit from the client, in most instances, an affirmation from the attorney follows. The affirmation from the attorney contains legal arguments and reasoning to support their client’s position.   Any exhibits in support of the motion are attached after the attorney’s affirmation.  The other side is given an opportunity to submit opposition papers to which the moving party may submit a Reply. A Sur-Reply from the person defending the motion occasionally is made which might be considered by the court. Sur-Replys are the exception rather than the rule and not always permitted by the Court.

Family Court, in most cases (but not always), is less paperwork intensive and a more streamlined process. A petition that details the violation is submitted and signed by the client and their attorney if they have one. The court then issues a summons requiring the respondent to appear in court. The law provides that if there is a support order that has not been paid, there is a presumption that there is a willful violation. The burden then shifts to the other side to show that the violation was not willful. Willfulness means the ability to pay and the failure to do so. An important task of the attorney for someone accused of failing to pay child support is to show that the violation was not willful, if in fact the support order was not paid. Therefore, the financial ability to pay is a big issue in hearing on contempt motions or violations. If loss of employment is at issue, the payor needs to show that the job loss was due to no fault of their own and that they have been making diligent efforts at securing replacement employment to no avail. The other side might argue that diligent efforts have not been made or that the loss of employment was the payor’s fault. Continue reading ›

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Every location has different particularities that make handling family law and divorce cases somewhat different from County to County.   The Domestic Relations Laws and Family Court Act is the same for everyone in New York, but different rules and procedures might apply from Judge to Judge, courtroom to courtroom, and certainly from venue to venue. I handle cases all around the New York City area including Nassau and Suffolk County Long Island. I started my family law practice some years ago as a Suffolk County Family Law Attorney. My office is in Jericho, New York, where I work as a divorce mediator, litigator, and collaborative law lawyer. However, I reside in Suffolk County and enjoy the convenience and familiarity of handling cases in the Suffolk County courts. I have handled more Suffolk County cases than any other location. The purpose of this blog article is to relay information about family law and matrimonial cases in the Suffolk County Supreme Court and Suffolk County Family courts.

As I handle Nassau County, Queens, and New York City cases in addition to Suffolk County, I have seen some of the nuances of each area.  At times there is a choice of venue to file the case if the parties reside in different counties. Divorces may be filed in any county chosen by the Plaintiff, and as long as venue is not contested by either side, the case can be resolved in that County, provided New York State otherwise has jurisdiction.   A specific County might be selected as they are in the position to better expedite granting the divorce than a different venue. There are often considerations about whether to file a case in the Family Court or Supreme Court because the Suffolk County Family Court and Suffolk County Supreme Court in most instances have concurrent jurisdiction, after a divorce, to hear ongoing issues about child custody, child support, parenting time, and maintenance.

Divorces are handled in the Supreme Courts of the various New York Counties. Usually depending on the residences of the parties, a divorce filed in Suffolk County Supreme Court is either assigned to be heard at the court in Central Islip, New York or Riverhead, New York. The addresses are 400 Carleton Avenue Central Islip, NY 11772 and 235 Griffing Avenue Riverhead, NY 11901. Post judgment divorce issues may also be filed and handled at the Suffolk County Supreme Court. Cases are assigned to Supreme Court Justices that are elected Judges, however, the parties can agree for the case, or one of the issues in the case, to be heard by a Judicial Hearing Officer for different reasons such as to expedite the time frame of resolution. Mediation services can be ordered, usually only by agreement, for which the parties need to pay. Since I am a Suffolk County resident, I enjoy the convenience of appearances in Suffolk County Courts. Continue reading ›

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Paternity is a legal declaration that someone is the father of a child in New York. The legal recognition of paternity is required under the law for the establishment of many rights and obligations such as for custody, parenting time, child support, and inheritance to name some of the more common. What sounds like it should be a clear cut determination is not always so straightforward. Since New York has finally recognized same sex marriages, paternity and parentage is a developing area for same sex couples. There are complexities as well for opposite sex couples which require skills for a New York City, Long Island, and Nassau County Family Law Attorney to properly handle.

For example, a married man is presumed, under the law, to be the father of a child born to his wife. Therefore, unless and until there is a legal declaration that he is not the father, or that someone is the father, the man that was married to the mother at the time of the birth of the child is legally the father. If another man files a paternity case concerning the child, the presumed father must receive notice for the case to be able to proceed.

Unmarried parents may establish paternity by both parents duly executing an Acknolwedgement of Paternity which is then recorded with the child’s birth certificate. Recorded Acknowledgments of Paternity are the equivalent of a court order of paternity or order of filiation. Within sixty days after the signing of the Acknowledgment of Paternity either party may file a petition in a New York Family Court to vacate the acknowledgement. After the sixty days, either party can still file a Family Court petition to vacate the acknowledgment but there would need to be fraud, duress, or material mistake of fact. The foregoing rules are applicable to parents that are 18 or older at the time of the signing of the Acknowledgement. There are different time period rules applicable to parents under the age of eighteen of the signing. Continue reading ›

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Neglect or abuse allegations come up frequently in child custody matters. The purpose of this blog entry is to discuss some of the nuances of how abuse and neglect accusations come into play in a custody case. Like me, Long Island Child Custody Lawyers and attorneys that handle cases in and around the New York City area acquire this information through years of practice.

A notable procedural matter in the New York Family Courts concerns when an abuse/neglect case is pending at the same time as a custody case involving the same parties. In most instances, the custody case cannot be resolved until such time as the abuse or neglect case is completed. Therefore, the custody case usually will be assigned to the same Judge that has the abuse/neglect case.   The custody case will then follow along with the abuse or neglect case.   In the New York family courts an abuse/neglect case is commonly referred to as an “N” docket case as the docket number starts with the letter “N”. Custody/visitation cases (parenting time) cases in the family court are called “V” dockets as the docket numbers in those cases begin with the letter “V”.

Often, an N-docket case might be resolved if the Respondent in the N-docket case agrees to V-docket custody be given to the other parent or petitioner in the custody case.   What this means is that the County or protective services agency that is proceeding with the case against the Respondent will request to withdraw the N-docket case if they are satisfied that the child is safe with the other parent or other party in the V-docket matter. If there is not an agreed upon resolution, and the N-docket case proceeds to a hearing, the Judge that is listening to the evidence on the N-docket case can consider whatever evidence is adduced at that hearing when deciding the V-docket child custody cases. Continue reading ›

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The Long Island contingent of the New York Association of Collaborative Law Professionals has been making a push to start implementing streamlined protocols in order to further save time and expenses to divorcing couples that have chosen to work collaboratively. Collaborative law is an alternative to litigation, but unlike mediation, each party has the representation of trained professionals that make up the team in this non-adversarial divorce process. Typically, the team includes each party having their own collaboratively trained attorneys, divorce coaches, and one financial neutral although the necessary professionals can vary from case to case. As a New York City, Long Island and Nassau County Collaborative Divorce Lawyer, I believe in the collaborative law process. I am pleased that we are now using the streamlined initiatives here on Long Island. I want to use this blog entry to reiterate why collaborative law is the gold standard for divorces and as an opportunity to talk about the streamlined collaborative divorce process.

Collaborative law is the gold standard for divorces. Everyone works together to stay out of court and to work with a team of well trained professionals equipped to deal with the legal, financial and emotional aspects of dissolving a marriage. Parents put their children first in the process. The process is designed to help a couple safely and sensibly transition into two independent households. Collaborative law is a moral and honorable way to divorce with integrity. Most importantly, the process works to resolve issues and get couples to agree.

The streamlined process essentially is broken down into four phases. Phase one is putting the team together. Phase two is information gathering. Phase three is brainstorming options and reaching agreements. Phase Four is moving on with the rest of your life, your new story! Continue reading ›

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After agreeing upon the terms of a settlement in a divorce mediation, the drafting attorney usually will put together the settlement agreement. It might be in the form of a separation agreement or a stipulation of settlement. Since I am a New York City area, Suffolk County and Nassau County divorce lawyer and divorce mediator, I have always been the drafting attorney on my mediated cases. It is recommended that each party take that settlement agreement and have it reviewed with their own attorneys. The purpose of the review attorneys is to make sure that each party understands their rights, understands what they are signing and that what they agreed upon is in fact in the agreement. This is the person that could give them the legal advice they need.

Everyone that goes through alternative dispute resolution has questions. Would I do better if I went to court? Is this a fair agreement? People that go through collaborative law or litigated cases receive the advice and representation of an attorney throughout the process. Collaborative law, for those, who have not heard about it, is another non-adversarial way to resolve matrimonial and family law cases. I like to think of collaborative law as a method somewhere in between mediation and litigation however it is non-adversarial, like mediation. Feel free to click around my blog, website or call to talk about collaborative law. This blog entry is geared more so about divorce mediation.

The divorce mediator’s role is as a neutral to help people settle their differences and formulate an agreement to move on with their lives. When I shift gears into my role as drafting attorney my job is to ensure that the understanding that the parties made is put into proper form to be a legally binding agreement that settles the case. Usually, in the case of a divorce, that means to settle all of the issues that a Judge would have to decide had the case proceeded to litigation and a trial. In this blog I will go through topics that I include in my settlement agreements when acting as a drafting attorney. For each topic I will touch upon some of the considerations that a review attorney, which is sometimes my role, can address with their clients to make sure their client is armed with the legal information they would need to making a knowing, intelligent, and voluntary agreement for their divorce or other family law issue that is mediated. Continue reading ›

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Each County has some particular nuances that make practicing divorce and family law a little different in each venue.  Although most of the same laws are applicable throughout the state, besides differences in geography, each court, as well as each judge has their own rules and procedures.  As a New York City, Long Island and Nassau County Family Law Attorney, I have had the opportunity to see geographic differences in my practice.  Although I do cases all around the area, my highest volume at this time is in Nassau County.  The purpose of this blog entry is to provide information about divorce and family law practice in the Nassau County Supreme Court and Nassau County Family Court.
Separation proceedings, divorces and post judgment divorce proceedings are the types of cases that we mostly handle at the Nassau County Supreme Court.  The Supreme Court of Nassau County has an address of 100 Supreme Court Drive Mineola, New York 11501.  Matrimonial cases are usually assigned to a court room at the Nassau County Supreme Court Matrimonial Center, which is located at 400 County Seat Drive Mineola, New York 11501.  Divorce cases are initiated by purchasing the Index Number at the Nassau County Clerk’s office which is located at 240 Old Country Road Mineola, New York 11501.  All the legal documents on file for the Supreme Court cases become part of the records maintained at the Nassau County Clerk’s office.

At the Nassau County Matrimonial Center a case is assigned to a:   Justice of the Supreme Court; Judicial Hearing Officer; or a Special Referee.  There are mediation services to help aid in resolution of matters to minimize the litigated issues.  There is a Model Custody part at the Nassau County Matrimonial Center specifically designed for child custody and parenting time disputes.  I frequently find myself at the Nassau County Supreme Court, which is less than five miles from my office, whether it is to follow up or appear on one of my cases. Continue reading ›

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In this blog I will attempt to outline some of the elements of common family offenses, which I have seen in my practice as a New York City and Long Island Order of Protection Lawyer.  If a family offense is proven, it usually entitles the victim to an order of protection.  Under the New York Family Court Act, if someone that meets the definition of Family under the Act commits a Family Offense against the other then there should be a finding that a Family Offense has been committed and a decision as to what order of protection, if any, is appropriate among other possible dispositions.  Orders of protection might direct a person to stay away from the protected individuals and/or to refrain from committing certain acts against them, among other things.

At a hearing, facts that are not alleged in the petition, if properly objected to, may be inadmissible to prove that a family offense was committed.  Only relevant, competent and material evidence should be admitted to prove or disprove a family offense.  Each case is different and whether or not a Family Offense was committed and the appropriate action to take if there was an offense, is up to the discretion of the trier of fact or judge in each particular case within certain evidentiary requirements and standards.  Usually Family Offense cases are heard in the New York Family Courts.  They may, however, also be heard in the Supreme Court such as during a divorce case.  Often times the Family Offense case may initially be assigned to a Referee, instead of a judge, who can be given the authority by the consent of the parties to be the judge that decides the case.

Family offenses are enumerated in the New York Family Court Act and are violations and/or crimes under the New York Penal Law.  A family offense proceeding in Family Court or Supreme Court, however, is not a criminal prosecution and thus is usually simply about whether or not an order of protection should be issued.   Again, the following is not a complete list as there are many more acts or crimes enumerated under the law, but the intent is to illustrate of what might constitute some of the more common.  Continue reading ›

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