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Parties Given Joint Custody and Joint Decision Making

Childs small hand in parents hand

In a custody dispute before Justice Matthew F. Cooper, sitting in Supreme Court of New York County, a mother brought a proceeding which claimed the father was argumentative, contentious and rigid. She alleged since the father was so difficult she could not co-parent with him. Therefore, she should be awarded sole decision making authority and also be awarded to have sole custody of the parties’ son.

The father also agreed that joint decision making was not viable. He argued that both he and the mother should each have final decision making authority. He claimed they should be deemed to have joint custody of their son.

Justice Cooper in his decision took into consideration what was in the child’s best interest. Justice Cooper’s ruling was it was not in the child’s best interest to have the father’s standing as a parent denigrated by designating him a non-custodial parent. He ruled the child’s best interests would be served if there was a shared decision making process. The judge rendered a hybrid decision that didn’t give either parent sole custody. He outlined in his decision that each of the parents was to have decision making authority in specific areas of their son’s general health, education, and well-being.

Conclusion

Attorney Elliot Schlissel

This court’s decision is an attempt to keep both parents who don’t get along, very involved with their son’s life. Unfortunately, my experience in situation of this nature is if the parents don’t put their child’s interest ahead of their animosity to each other, this judge’s decision will not work.

Child Endangerment Conviction Set Aside

Man and child sitting in a hammock

A father appealed from a judgment that convicted him of attempted endangerment of the welfare of a child. The father and mother did not get along but they lived together. One day while they were at a park the father wanted to take the child home. The mother did not wish to go home with him. The mother claimed while both the father and the mother were holding their daughter’s hands, the father shoved the mother. While he was shoving the mother she claimed his hands hit her in the neck which caused her to lose her balance and fall.

The Trial

At the time of the trial it was ascertained the mother lost her balance and fell at a time when she was wearing high heels. The father took the position the mother was trying to strike him and he was simply blocking her from doing this with his hand. He argued through his counsel the evidence against him was not legally sufficient to establish he was guilty of attempted endangerment of the welfare of a child.

Conviction Set Aside on Appeal

He was initially convicted and thereafter appealed the decision. He argued in his appeal his daughter was not subject to observing “serious domestic violence.” The appeals court took into consideration there was no previous history of domestic violence between the parties. The incident was one incident, not many. The appeals court held although the father pushed the mother under all of the circumstances involved, his conviction for endangerment of the welfare of a child was against the weight of the evidence. The appeals court therefore vacated the prior conviction against the father of attempted child endangerment.

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The Father Challenges Paternity – Court Denies Request for Paternity Testing

A childs hand in it's fathers hand

In a case before Supreme Court Justice Elisa Koenderman sitting in Queens County, Supreme Court, and a father had requested a paternity test and Justice Elisa Koenderman denied his request.

The Case

The case involves a husband and wife who were married in 2011. The wife gave birth to a son “LP” in 2012. A divorce action was initiated in 2015. However, at the time the divorce action was brought LP was living with the wife’s parents in China. This was pursuant to an agreement the parties had. Thereafter LP came back to the United States in 2016.

Husband Requests Visitation

After LP returns to the United States the father requests visitation with him; The mother grants his request and he starts seeing his son. Thereafter the father brought a proceeding before Justice Elisa Koenderman requesting an order from the Judge to have all parties’ paternity tested to determine whether he is really the father. The child’s mother and an attorney appointed to represent the child oppose the father’s application for paternity testing.

Presumption of Paternity

Justice Koenderman renders a decision against the father. She ruled that the presumption a child born during the marriage and the biological product of the marriage is “one of the strongest and the most persuasive known to the law.” She also brings up a theory called equitable estoppel.

Equitable Estoppel

Under equitable estoppel a person is prevented from asserting a claim which would prejudice another party. Here the Judge held the husband is equitably estopped from challenging the paternity of LP. He has previously represented himself to be LP’s parent. He has visited with LP. No evidence has been presented that the wife engaged in sexual relations with anyone else other than the father during the course of the marriage. In addition, the father continually presented himself as LP’s natural father in numerous ways. Judge Koenderman therefore ruled the father had not been able to rebut the presumption LP was a legitimate son and therefore his motion for an order allowing paternity testing was denied.

Conclusion

Fathers be careful. If you hold yourself out to be a child’s father the court can stop you from later demanding paternity testing to see if you are really the biological father.

Attorney Elliot SchlisselElliot S. Schlissel, Esq. is a father’s rights attorney who has for more than 3 decades has been representing fathers throughout the Metropolitan New York area on issues involving custody, visitation and child support.

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Post Nuptial Agreement Set Aside: Even Though Husband’s Duress Claim Was Not Proven

A childs hand in fathers hand

A husband brought a proceeding to set aside a post nuptial agreement before Justice Jeffrey Goodstein in a Supreme Court divorce part in Nassau County, New York. He claimed the agreement should be set aside because he was fraudulently induced to execute it. He also argued he signed the agreement under duress and the terms of the agreement were unconscionable. He alleged in his moving papers that at the date the agreement was executed he was suffering from depression. In addition, his wife exerted duress upon him which caused him to sign this one-sided document. He also argued the terms of the agreement were overreaching and unconscionable. His moving papers alleged that he received only 12.3% of the marital assets. The wife who had an annual income of $2 million received 87.7% of all marital assets. He claimed this was so unfair that the agreement should be considered unconscionable and therefore set aside.

Duress Not Proven

Judge Goodstein found the husband’s claims of duress were not proven. He failed to submit substantial evidence to show his mental state was weakened to the point that he did not have free will to avoid executing the agreement. Judge Goodstein therefore denied setting aside the post nuptial agreement based on the husband’s duress claim.

Agreement Set Aside Anyway

Attorney Elliot Schlissel

However, Judge Goodstein found the wife out earned the husband as a practicing physician. He found she retained her medical practice and was not providing the husband with spousal maintenance. He set aside the agreement because the financial terms were so one-sided. Judge Goodstein rendered a decision regarding the agreement setting aside all of its financial terms.

Wife’s Application to Modify Separation Agreement to Her Benefit Is Dismissed

Father-with-son

Supreme Court Justice Frank Nervo sitting in a divorce part in New York County recently had before him a case where a wife brought an application to modify or set aside a separation agreement she had entered into with her husband. She wanted the court to rescind the portion of the separation agreement the parties had entered into which dealt with the transfer of the parties’ marital home. She claimed she was not able to carry out her financial obligations under the separation agreement. The reason for her inability to fulfill her obligations was she could not obtain financing needed to pay a distributive award to the husband. She argued in her pleadings that if she was unable to make the payment he did not have to transfer the marital residence to her.

She claimed the wording of the separation agreement was a mistake, and she was defrauded. The terms of the separation agreement were therefore impossible for her to carry out. Judge Nervo did not see it that way. He dismissed wife’s lawsuit. He found her allegations of a mutual mistake could not be proven. The only mistake was made by her. He also found there were no fraudulent misrepresentations. Judge Nervo ruled the wife’s claim that it was an impossibility for her to perform the terms of the separation agreement regarding the payment to the husband for the house were not proven. The husband’s application to dismiss her complaint was granted.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates are father’s rights attorneys representing fathers throughout the Metropolitan New York area in divorces and family court cases. His law firm has been helping fathers with legal issues involving child custody, child support and visitation problems for more than three decades.