Video: Who Gets the House When There Are Young Children?
In this video Elliot addresses the topic of who gets the house after a divorce when there are young children involved.
Joint Custody in New York, Maybe?
New York State is one of the seven states in the United States which does not generally award joint custody to both parents of minor children. Joint custody arrangements can be made in New York, however, they have to be made pursuant to an agreement between the parties. The agreement can take place in a Stipulation of Settlement in a divorce, a Settlement Agreement in a custody proceeding in family court or pursuant to a Separation Agreement.
If the parties have not worked out a joint custody arrangement out of court, judges in New York will usually determine the issue of which parent receives custody of the children based on the best interests of the children. In these situations the court will award one parent residential custody of the children and the other parent parenting time (this is the politically correct term for visitation).
Fathers Seeking Custody
Fathers who seek to obtain custody of their children have to be aware that although the law has been gender neutral concerning who receives custody in New York for many years, mothers win the majority of custody legal battles. It is important, therefore, for a father who seeks to have custody of his children to retain an experienced, dedicated attorney who has experience advocating for fathers to obtain custody.
Father as the Primary Caretaker
In cases where the father has been the primary caretaker of the children, is the better provider, who puts the children’s best interests in the forefront of his thoughts, he should have the opportunity, if he desires, to become the sole residential custodial parent if a joint custody arrangement cannot be worked out. In the event the father does not seek to litigate the issue of custody, he should then seek to have parenting time equal to the time that the children spend with their mother. Fathers can actually end up being the non-custodial parent of their children and having all of the time to spend with their children that they desire.
Although many fathers assume that children’s natural caretaker would be their mother, this is not the status of the law in New York today and it has not been the status of the law in New York for many years. Fathers who seek to obtain custody of their children and are prepared to do battle in court have been more successful in obtaining their children’s custody in recent years. The first step a father should take if he seeks custody of his children is to retain a law firm which is committed to protecting the rights of fathers when dealing with family law situations.
Elliot S. Schlissel is a father’s rights lawyer representing fathers for more than 45 years throughout the Metropolitan New York Area.
Wife Found to be in Contempt for Violating Court Order
In a case in Westchester County, a husband brought an Order to Show Cause seeking him temporary custody of his child and directing his wife to return from India with the child. The wife had moved to India with the parties’ child and had failed to appear in court in New York. There were two separate court dates where the wife was told to appear in court and produce the parties’ child. In each of these occasions, she had failed to appear even though she was fully aware of the court dates and her responsibilities in New York.
Father Awarded Sole Custody
A hearing was held and Justice Linda Christopher awarded the father sole custody of the parties’ child. In addition, the judge signed an order directing the wife to immediately return the child to her father in New York.
Wife Held in Contempt
The wife took the position she had initiated an action in India prior to the court proceeding being started in Westchester County, New York. Justice Christopher found the wife’s allegations were untrue. She found the wife brought the action in India after the husband filed his Order to Show Cause in New York. Justice Christopher also found the wife had failed to provide any valid reason for failing to comply with the unequivocal court orders to bring the child back to New York. She found the wife’s actions prejudiced the husband and therefore she found the wife to be in civil contempt. She ordered the wife to return to New York for the purpose of purging her contempt and to immediately return the parties’ daughter to the custody of the husband in New York.
Conclusion
Skipping the country with the child with the hope of getting a better decision in a far off land will not necessarily work. There is a Geneva Convention on child custody. Many countries in the world are parties to this convention. In this case, the wife’s attempt to virtually kidnap her daughter and deprive the father of the custody he was awarded twas unsuccessful.
Mother Relocates to Texas and Seeks to Take Son With Her: Her Application is Denied
In a case before Justice James Pagones sitting in a Supreme Court Matrimonial Part in Dutchess County, New York, a mother brought an application to modify a stipulation of settlement which gave the child’s father temporary custody of their son. She sought to relocate the child to Texas. The mother had been a nurse in New York and she had moved to Texas to become a state trooper. Unfortunately, she was turned down for the state trooper’s job in Texas.
Court Refuses to Split up Children
Justice Pagones took the position that by moving to Texas the mother terminated her ability to spend time with the parties’ children. In addition she was no longer capable of attending counseling which had been set forth in the parties’ stipulation of settlement which had been so ordered by the court. In addition, the court found when she left her job as a nurse in New York, moved to Texas and didn’t receive a position as a state trooper she fell behind in her child support payments. She was now almost $50,000 behind in her child support payments. The court also found the mother sought to separate the parties’ children by moving one of them to Texas with her. Her application to the court proposed her daughter stay with the father in New York while the son moved to Texas with her. The court found this was not acceptable. Judge Pagones concluded the mother’s petition did not have supporting evidence that separating the two children would be in their best interest. He also found she was unable to offer a plausible submission of evidence that her daughter’s best interests would be enhanced by the court child support payments, taking her from her father, and moving her to Texas.
The father’s motion to dismiss the mother’s application was denied.
Conclusion
More and more judges are recognizing the valuable, loving relationship fathers have with their children. More and more fathers are having success in enforcing the laws in New York which makes custody decisions gender neutral.
The New Spousal Maintenance Law In New York
In late 2015, the law in New York concerning spousal maintenance (alimony) changed. The following are some excerpts from this new statute:
- The new law establishes a $175,000 income cap with regard to determining how much spousal maintenance (alimony) should be paid.
- The new law establishes formulas which cause the non-custodial parent who is the “monied” parent already paying child support to pay less in spousal maintenance. When applying the formula for spousal maintenance, it is deducted from the parent’s income before calculating child support payments.
- Courts now have more discretion to deviate, make modifications or changes to the guidelines to deal with situations where the payment of spousal maintenance would be inappropriate or unjust.
- The law eliminates something called enhanced earning capacity as a marital asset in equitable distribution of the assets of the family. Enhanced earning capacity could be a degree such as a doctor holds, or a lawyer holds, which entitles them to earn more money by practicing their profession.
- The duration of the spousal maintenance now specifically relates to how long the parties were married for.
- Spousal maintenance ends when the person receiving the spousal maintenance remarries or dies.
Conclusion
The new spousal maintenance law will provide benefit to the monied spouse who is paying the spousal maintenance and also, sometimes, child support to the custodial parent who also happens to be the non-monied spouse.
Modifying Child Custody Orders
Life is not static. Circumstances and events in parents and children’s lives sometimes necessitate the non-residential custodial parent (parent who doesn’t have custody) bringing a proceeding to change the custody arrangement regarding the child or children of the parties. There is a two-step standard which must be met by the parent seeking to have custody changed. Step one involves providing documentation and evidence to the court showing there has been a substantial change of circumstances with regard to the current situation involving where the child resides. This places a significant burden on the parent seeking to change custody. Step two requires a showing that the requested modification of custody will be in the child or children’s best interest.
Family Court or Supreme Court
If the custody situation involving the child or children was part of a judgment of divorce taken in the Supreme Court, the parent seeking to modify custody has a choice of either going back to the Supreme Court or going to the Family Court and presenting his or her case in that venue. There are strategic reasons as to why one would choose each of these courts. The circumstances and events in each individual case would determine the choice to be made.
In the event the parents were never married, the only available venue to bring the proceeding either to establish custody initially or to modify a prior custody order of the Family Court would be in the Family Court.
Attorney for the Child
When the application to modify custody is made, if the current custodial parent seeks to retain custody they will oppose this application. When the case is presented to a judge, the judge in most circumstances, will appoint an attorney to represent the child or children. The attorney who represents the child or children will interview them, look into the allegations in the petition, and present their point of view to the court with regard to which parent he or she would rather reside with. If there are two children, sometimes, the court will appoint a different attorney for each child. Unfortunately, the attorney for the child or children is strictly an advocate and is supposed to present their point of view which may not necessarily be in their best interest.
Difficulties in Being Successful in Contested Custody Modification Proceedings
The concept of burden of proof is sometimes not understood by individuals who seek to change a child’s custody. The party seeking to modify the prior custody order must show at a hearing by a preponderance of evidence that there is both a substantial change in circumstances with regard to where the child or children are being raised and that this change in custody will be in their best interests. There are evidentiary rules which courts follow with regard to these presentations. The fact that they are unhappy or that the parent bringing the proceeding has a nicer home in a better school district and/or he or she has developed a much stronger relationship with them would not necessarily meet the burden of proof to change custody.
Conclusion
If you seek a change in custody of your child or children, you may only get one chance to bring this proceeding. To maximize your chances of being successful, hire an experienced child custody attorney to represent you in these proceedings.
Evidentiary Standards in CPS and ACS Proceedings – Part II
Abuse and/or Neglect Proceedings in Family Court
Family Courts in the Metropolitan New York area are overburdened. Judges are faced with numerous cases each day which should require significant amounts of time. However, the reasonable amount of time required to deal with these cases is usually not available to judges. Judges are forced to make decisions over families’ and children’s lives after only several minutes of presentation. This means if you appear in court in a proceeding based on allegations of child abuse or child neglect, the presentation made by you or your attorney must be maximized to get your point across quickly and persuasively. You will not be able to tell an entire story at the initial court proceeding. The purpose of the initial court date is for the judge to find out generally what the case is about. It is not a trial date. If the judge decides the case should have a trial or hearing, the judge will schedule it for a trial or hearing on subsequent dates.
Family Violence and Abuse
The abuse and neglect of children is a serious matter. The writer understands that there are terrible cases involving children who are abused and neglected. However, this article deals with cases involving well-meaning, dedicated, loving families who are sometimes torn apart by specious allegations of child abuse or child neglect often coming from mandatory reporters who simply misunderstand their responsibility. Mandatory reporters do not have a responsibility of reporting every injury or bruise on a child. The over-reporting by mandatory reporters causes well-meaning, loving families to find themselves in stressful situations by overzealous CPS and ACS workers looking for child abuse and child neglect in situations where they simply do not exist.
Conclusion
If faced with an investigation by either CPS or ACS it is in your and your child’s best interest to consult with an attorney experienced in dealing with these matters as soon as possible. What you say to these investigators can be used against you in proceedings in the Family Court.
Evidentiary Standards in CPS and ACS Proceedings – Part I
The standard of evidence used in child abuse and child neglect proceedings is called the preponderance of the evidence. When Child Protective Services (hereinafter referred to as “CPS”) or the Administration for Children’s Services (hereinafter referred to as “ACS”) seeks to establish child abuse or child neglect they bring proceedings in Family Court. Family Courts makes these decisions based upon a preponderance of the evidence. Unfortunately, individuals representing themselves in these proceedings usually do not understand how the legal system works and how to present evidence. Sometimes the only evidence presented is the evidence by the CPS or ACS worker of the allegations of abuse or neglect of the children. Opinions of CPS or ACS workers, statements made by young children, hearsay statements made by third parties may all be taken into consideration in proceedings involving child abuse and child neglect.
Parents and other individuals often tell their life stories to CPS or ACS investigators looking for sympathy. This is usually a terrible mistake! CPS and ACS investigators are there to prove that there have been instances of child abuse or child neglect. They work under the presumption that child abuse or child neglect has taken place whenever a complaint is made, no matter how frivolous it is. When parents tell their life story to these investigators, the investigators are simply looking to extrapolate from the story evidence which can be used against the parent in the child abuse and child neglect proceeding.
The Power of CPS and ACS Investigators
CPS and ACS investigators have a lot of power. Unfortunately, there is not an appropriate supervisory system to check their use of the power. Their reports, no matter how salacious, based on opinions not on evidence, based on statements made by individuals who have no actual knowledge of the circumstances and events are given credence. There is a tendency for these investigators to abuse their power. They look for any evidence of child abuse or child neglect. The evidence can simply be that a child was injured. They can take the position that if the child was injured it was someone’s responsibility to see to it that the child was not injured.
Uncle Found Not Guilty of Child Abuse
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is an attorney who has been handling cases with CPS and ACS for more than 45 years. He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.
