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The Wife Denied Equitable Distribution: The Property Was Acquired Prior to the Marriage

Child holding parents finger

In a case before Supreme Court Justice Pam Jackman Brown, sitting in Queens County, Supreme Court, a husband brought a lawsuit for divorce against his wife, claiming irreconcilable differences. The wife sought to have equitable distribution of assets in the divorce case. The husband claimed all the assets the wife sought were accumulated by him prior to the marriage. Justice Brown found there were no joint assets accumulated by the parties during the course of the marriage and therefore the wife was not entitled to equitable distribution for the property she claimed were marital assets.

Common Law Marriage Argument

The wife presented an argument that she had a long term relationship with her husband which took place prior to the marriage. She therefore claimed the assets that were accumulated by her husband during their relationship prior to the marriage should be considered marital assets subject to equitable distribution.

Justice Brown ruled against the wife. She found there was no documentary evidence showing wife contributed financially to the assets which she alleged were subject to equitable distribution and acquired by the husband prior to the marriage. Justice Brown found the wife did not sustain her burden of proof to show a constructive trust was created between the parties before the marriage. Justice Brown gave the wife a $10,000.00 lump sum equitable distribution award related to the marital residence.

Attorney Elliot Schlissel

Conclusion

Only assets accumulated during the marriage are subject to equitable distribution in the State of New York. All other assets are considered separate property of each of the parties and are not considered assets of the marriage.

Father’s Application to Compel Visitation Denied

Man and child sitting in a hammock

In a case before Justice Sharon Gianelli sitting in Supreme Court in Nassau County, Justice Gianelli found the issue of custody had been settled prior to trial. The mother would have physical custody of the child. The father would have parenting time with the child. However the child refused to spend parenting time with the father. Justice Gianelli found the child refused visitation with his father. This was in spite of the fact the parties had participated in therapeutic visitation through Hofstra University for over a year.

Counseling Not Working

Judge Gianelli’s ruled the program at Hofstra University which involved efforts to motivate the child through counseling to resume parenting time with the father was counterproductive and no longer in the child’s best interests. Justice Gianelli found there was a history of both physical and verbal abuse. However, the father refused to acknowledge his abusive behavior. As a result of the father’s abuse of the child, the child was resistant to spending time with his father.

The Child’s Mother Made Efforts to Facilitate Visitation

Attorney Elliot Schlissel

Justice Gianelli also found the mother made affirmative and sincere efforts to facilitate the relationship between the father and child. In addition, she found the father failed to show by words or actions he would pursue a healthy course of conduct which would serve the child’s best interests. She therefore ruled the evidence failed to establish the child’s refusal to have parenting time with the father was a result of the mother alienating the child against the father. She therefore denied father’s application to compel visitation between the child and him based on the fact that it was not in the child’s best interest.

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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.