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Kitchenfeeding-300x200It’s no secret that cases involving children are among the most emotional and complex in family law. There are many different things parents need to think about when not living with the other parent or beginning a divorce, from how they’re going to split the family home, to how they can manage parenting and custody time.

One element which can become confusing in some cases is how the “residential custodial” parent is determined in a case when there is equal parenting time distributed between both parties.  In the custody context, the residential parent would be the one that the child lives with most (residential custody being separate and independent from “legal custody” which refers to decision making authority for the child).  Notably, in the family law world, to count as a day living with one parent or another is counted according to the place the child sleeps and then wakes up the following morning on a given occasion.  In other words, it is measured by overnights with the child.  If both parents receive the same number of overnights with the child, and the parents both look after the child in their own properties, it can be difficult to determine which is the “residential custodial” care provider.  Although I have blogged about this topic before, it is worth looking at again, as shared residential custody seems to come up in more and more of my mediations, negotiated cases and even litigated matters. Continue reading ›

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Arms-Crossed-200x300There are various complicated concepts which apply to legal cases in matrimonial law. Courts must consider the various components of each case on an individual basis, as the situation surrounding those involved can make a huge difference to the order made.

One possible consideration which may emerge in some postnuptial, prenuptial, separation, and stipulation of settlement cases is the choice of law clause. This is a clause in the legal world which can influence decisions of which state laws should be applied to certain cases.

Here, we’ll be exploring the concept of the choice-of-law clause, and how various factors can make a difference to which state’s laws are applied to particular family law cases. Continue reading ›

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Kissing-Parents-300x200In a previous blog, we began discussing the basics of “Maltreatment” in cases involving children. The term “maltreatment” can be somewhat complex, as it often refers to a number of different acts which might put the child in the case in danger. Maltreatment might be identified as “negligence” or direct endangerment of the child. It could also apply to situations wherein a care provider has failed to properly look after a child in their charge.

Child maltreatment cases can emerge in everything from personal injury law, where parents or officials may make a claim against an individual for maltreatment, to family law, where a party may use a finding of child maltreatment to reduce a spouse’s exposure to a child.

To further define what “maltreatment” may entail in the legal landscape, particularly the world of family law and Child Protective Services investigations, let’s look at some cases wherein the courts of New York explored the issue in greater depth. Continue reading ›

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Young-Parents-1-300x207Since I began my focus in matrimonial and family law in 2004 and working as a child custody attorney, divorce lawyer, and mediator throughout New York and Long Island, I’ve discovered some cases are always more complex than others. Cases involving children, for instance, are often the most emotional for everyone involved. This is particularly true when the safety of the child is brought into question.

The duty of ACS, Child Protective Services or a court when dealing with cases involving children is to make sure the child in question remains safe and protected with the order provided.  For CPS investigations this might mean “indicating” someone for child maltreatment or filing a neglect case in family court. In a child custody and parenting time case this means when making orders around custody and visitation, the courts will consider all of the details of the situation surrounding the case carefully, to determine what outcome is in the “best interests” of the child.

A number of factors can contribute to a determination of a child’s best interests, including any evidence presented by an individual or party in the case, and the accusations made by plaintiffs during a child custody or divorce case. One particularly worrisome concept is when an individual is accused of “maltreatment” of a child. Continue reading ›

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Couple-Home-300x200Maintenance is a common consideration in many divorce cases, wherein extra support needs to be offered to a specific spouse. In many divorces, the less-monied spouse seeks temporary maintenance to help with the costs of getting legal representation and supporting themselves when the divorce is ongoing. At times both temporary maintenance and post-divorce maintenance (support given at the end of a divorce), can help to preserve a spouse’s financial wellbeing during the case and when a marriage is dissolved.

Any maintenance order given by the courts in New York, whether temporary, or post-divorce in nature, has the possibility of being retroactive. This means the party seeking support may receive payments owed backward from the moment they applied for this support. For individuals attempting to get back on track as quickly as possible, it’s important to ensure you’re getting access to all of the financial support owed.

Notably, temporary maintenance is not subject to the same advisory schedule for duration as post-divorce maintenance. Let’s take a closer look at the complexities of calculating maintenance arrears in the case of temporary maintenance. Continue reading ›

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Parentswithbaby-300x200Until recently, under New York law, a parent’s obligation to provide support to a child with a developmental disability generally ended at age 21. However, New York just joined 40 other states in enacting legislation that allows custodial parents of adult children with special needs to pursue child support after the child reaches the age of majority. For certain young adults with “developmental disabities”, child support may now go on to age 26. This can include child support for those that are still under 26 that were previously already deemed aged out.

The law applies to single parents of adult children over the age of 21 who (1) have been diagnosed with a developmental disability by a medical professional; (2) reside with the parent seeking support; and (3) are principally dependent on that parent for maintenance.

The newly enacted legislation uses the New York Mental Hygiene Law’s four-pronged definition of “developmental disability.” First, the disability must be attributable to (a) an intellectual disability, cerebral palsy, epilepsy, neurological impairment, familial dysautonomia, Prader-Willi syndrome or autism; (2) any other condition of a person found to be closely related to intellectual disability because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of intellectually disabled persons or requires treatment and services similar to those required for such person; or (3) dyslexia resulting from a disability otherwise satisfying this definition.
Secondly, the disability must have originated before the adult child attains age twenty-two. Parent-caregivers of children disabled after attaining the age of twenty-two cannot petition for child support under the new law. The third element of the definition is that the disability has continued or can be expected to continue indefinitely. Finally, to constitute a “developmental disability” for purposes of the new law, the disability must constitute a substantial handicap to the adult child’s ability to function normally in society. Continue reading ›

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Meditation-Coach-300x200Welcome to the last edition in our series of articles and guides on parenting time and visitation. Through the course of this series, we’ve talked about various factors which might be relevant when you’re making decisions about visitation and parenting time following a divorce.

Although all aspects of divorce can be stressful, choices made about the care of children are often the ones that cause the most complexity for many of my clients. Each parent may believe they are doing what’s best for the child when they ask for specific agreements and orders to be made. However, not all parents will naturally agree with each other about what should happen next.

In this segment of our parenting time bullet point guide, we’re going to be looking at the concept of mindfulness in child custody and parenting time arrangements, and what may happen if you decide to discuss visitation issues during mediation. Continue reading ›

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Baby-and-Mom-300x200During a divorce or separation between parents, and for parents that were never married, there are various issues which need to be considered to ensure the long-term safety and wellbeing of the child. In New York, the courts will often do everything in their power to ensure the negative impact of a divorce, or parents that do not live together, on a child is as minimal as possible. While the end of a relationship, whatever the length (long term or a one-night stand), or a marriage between two parents can be upsetting for a child, it shouldn’t negatively influence that child’s ability to thrive in life.

Sometimes, to ensure a child continues to access the opportunities they would have had should their parents have stayed together, or to simply take care of their needs, the court will need to order child support. This payment, given to the primary caregiver or the residential custodial parent of the child, helps to ensure they can give the child the best quality of life without the presence of the other parental figure.

In most cases, child support is calculated according to a specific formula. However, certain children will have advanced or specific needs which require the standard formula for child support to be reconsidered. For children with special needs, additional considerations will often contribute to the decision of how much child support a non-custodial parent should pay. These special needs can also influence how long support is awarded for.  A law just signed into effect in New York now extends the age of child support for special needs children.  This can mean proceeding with or defending against an onslaught of child support petitions in Family Court, or post-divorce judgment motions in the Supreme Court for special needs children that have already aged out. Continue reading ›

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Female-Judge-300x200Welcome back to another addition to our series of bullet-point guides on parenting time and visitation in child custody cases. As you’ve likely noticed throughout the course of these series, parenting time decisions can be a source of significant stress and complexity for a lot of couples.

Even if your relationship came to an end in an amicable way, each parent may disagree on how to ensure they get the best for their children. Unfortunately, not all parents will see eye to eye when it comes to defining the best interests of the child. So far during this series, we’ve looked at various factors that can come into consideration when a court is making decisions about parenting time orders.

Now, we’re going to examine the statements a child custody attorney, like myself, might make when representing a client during a case for visitation and parenting time. Continue reading ›

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Parents-adventure-300x200Recently, I’ve been publishing bullet-point guides on the topic of parenting time and visitation in child custody and divorce cases. So far, we’ve covered a lot of different points that may arise during these complex cases. In this segment of our guide, we’ll be looking at a quick snap shot about appeals, and when orders may be upheld, or reversed.

In the New York courts, decisions made about child custody, visitation, and parenting time rights must always focus on the “best interests” of the children standards. This means the courts will carefully consider all of the circumstances of the case, before issuing an order considered to be in the best interests of the child or children involved.

Of course, there will be occasions when the parents in a divorce or separation case will not agree that the order is right for the child. When this happens, parents may choose to work with a child custody attorney to appeal the decisions made by the court. Continue reading ›

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