In an unusual case, Justice Jeffrey Sunshine, sitting in a Supreme Court Matrimonial Part in Kings County, recently awarded a mother the custody of the family’s twin children.  However, Justice Sunshine awarded the father decision making custody concerning medical issues for the twins.  The case started by both parents asking for Orders of Protection and custody.  The mother had brought a divorce action against the father based on cruel and inhuman treatment.  She contended the father had physically and verbally abused her and she had lived in a domestic violence shelter for a year after she moved out of the marital residence.

Upon testimony being taken, no evidence of physical abuse was presented to the court.  The court found that the mother had alienated the twins from their father.  She had accomplished this by convincing the children she was physically abused and that the father would abuse them also.

 Child With An Eating Disorder

One of the twins had a severe eating disorder.  The mother had refused to place this child in a residential or day treatment facility to deal with this severe eating disorder. Although the mother had alienated the children from the father, Judge Sunshine took the position removing the children from custody of the mother would cause them more harm than good.  He gave the mother custody of the twins.  However, he awarded father decision making custody concerning all medical issues.

Equitable Distribution Of Marital Property

Some states in the United States have Community Property Laws. Community Property Laws state all assets of the marriage are divided equally. New York has an Equitable Distribution Law concerning the division of marital property. The statute sets out a number of factors courts consider with regard to the division of marital assets. Among these factors are:

1. The income of the parties.

2. The duration of the marriage.

3. Health and age of the parties.

4. Who will have custody of the minor children?

5. Who will receive occupancy of the marital residence?

6. Is the marital property a liquid assets or an asset that is non-liquid?

7. The future ability of the parties to be self-supporting?

8. The tax consequences of the distribution of the assets.

9. Other factors the court may feel are relevant to the equitable distribution of property.

Conclusion

Divorce in New York is not an easy process. Find a qualified, experienced, aggressive and compassionate divorce lawyer and let he or she guide you through the legal maze of obtaining a divorce in New York.

Jurisdiction

The courts in New York only exercise jurisdiction in divorce cases where a minimum of one party resides in the State of New York. New York has very specific residency requirements set forth in New York Domestic Relations Law section 170 (DRL 170).

Divorce Aggravation

When parties seek to end their marriage, they often find the legal process to be stressful, slow and more complicated then they imagined. Issues concerning the division of assets, child custody, child support, spousal maintenance (alimony) and visitation can be both complicated and stressful. An experienced divorce lawyer can simplify the process and help deal with the aggravation and frustration that is often caused by the dissolution of a marriage.

Marital Property Versus Separate Property

Marital property is property accumulated by the parties during the course of a marriage. Separate property is property accumulated by one spouse prior to the marriage. In addition, assets inherited or received from personal injury awards, maintained in the name of one spouse obtained before the marriage or during the marriage, are also considered separate property. Marital property is subject to equitable distribution. Separate property is not. Marital property may also include real estate, corporations, business interests and professional licenses obtained by doctors, lawyers, architects and others.

A decision by Justice Rose of the Third Department, Appellate Division (an appeals court) found an abusive mother had a “lack of insight” concerning her children.  This is the basis for the court awarding the father sole custody of their three children.

The Family Court, St. Lawrence County, in upstate New York found the mother swore and yelled at her ten year old son.  She even called him an “asshole” on her Facebook account.  She claimed she called him an asshole because that’s what “he is.”  She wanted all of her friends to know her son was an asshole.

Barbara Potter, a Family Court Judge siting in St. Lawrence County found joint custody was no longer viable.  She had awarded sole custody to the father.  The Family Court found the family’s oldest child had mental health problems.  Although he participated in counseling, the mother refused to cooperate.  She also used physical force to restrain her son.  The court found she yelled at him on a regular basis and made disparaging remarks to him.

 Order of Protection Given To Children Against Mother

Judge Potter found the mother’s behavior to be so outrageous she granted the children an Order of Protection against her.  She was barred from posting communications about the children on any social networking website.  The decision of Justice Rose in the Appellate Division came from an appeal brought by the mother.

 Appeals Court Unanimously Finds Against the Mother

The Appeals Court found that the mother’s inappropriate use of the Internet to make demeaning, disparaging, inappropriate remarks about her child was outrageous.  The Court also found she showed a lack of remorse and insight concerning her lack of parenting skills.

The Appellate Court affirmed the decision of the Family Court changing custody from jointly held between the father and mother to sole custody to the father as well as granting the Order of Protection to the children.

Robert Sand, age 50, of Syosset, New York, has been described as the “most wanted dead beat parent.”   He has recently plead guilty to criminal charges for failure to pay 1.2 million dollars in child support payments related to two previous marriages.

Mr. Sand has been hiding for more than 10 years.  He was recently arrested in the Philippines.  The Philippines extradited him to the United States in December of 2012.  Mr. Sands admits that he has been on the run to avoid paying his child support payments for more than a decade.

Nassau County Family Court Issues Arrest Warrant

In the year 2000, an arrest warrant was issued by the Family Court in Nassau County for Mr. Sand.  To avoid being arrested, he moved to Florida and thereafter left the country.  In 2009, he was indicted for failure to make child support payments.  He currently faces approximately three years in Federal prison under Federal sentencing guidelines.

Mr. Sands had lived in Syosset, Long Island, New York and had been involved in the auto auction business.  It is estimated during the 1990’s his income was between $500,000 and $600,000 per year.

 Conclusion

You can run but you can’t hide forever from your financial obligation to support your children.

 About The Author

Elliot S. Schlissel, Esq. is a fathers rights lawyer representing fathers in divorce proceedings, family court proceedings and all issues affecting fathers marital rights and  father’s visitations rights with their children.

Family Court Judge, W. Dennis Duggan, sitting in Albany County, New York, recently ordered a father to pay 71% of private school tuition for his son even though the parties had an oral agreement whereby the Mother would pay 100% of the private school tuition for the child.  Judge Duggan in his decision said there is “a sound and substantial basis” for requiring the father to pay the lion’s share of the tuition pursuant to New York State Family Court Act section 413 (1)(c)(7).  This section requires the non-custodial parent to pay educational expenses if “private, special or enriched” schooling would be in the best interest of the child as determined by the Court.

 Private School Best Educational Setting For Son

Judge Duggan ruled when the father consented to have his son attend the Christian Brothers Academy, this was an acknowledgment by him attending this school was the best educational setting for his son.  Although the parties had an oral agreement which required the mother to pay the entire $55,600 tuition for the school, Judge Duggan ruled this agreement was “not relevant to the outcome of [the father’s] objections” to the Support Magistrate’s finding which directed him to pay 71% percent of the schooling costs.  “The reason that this is so is because the Family Court has no authority to enforce contracts.”

Agreement Regarding Private Not In Writing

Judge Duggan took the position that the Court wasn’t setting aside the parents agreement because there was no agreement.  Agreements, pursuant to New York State Statute of Frauds, must be in writing.  Although there was an oral discussion, the Judge’s decision was this was not a binding agreement.  The Judge further noted because the Family Court is a court with “limited jurisdiction, it has no authority to rule on such issues.”  “Its jurisdiction is limited in this case to applying Family Court Act section 413(1)(c)(7) to the evidence.  The interpretation of an oral contract between the parties imposing equitable relief is beyond the courts authority.”

 Son Thriving In Private School

Judge Duggan took into consideration a Support Magistrate had made findings the parties son was “thriving and his emotional state had improved because he had attended the Christian Brothers Academy.”  Prior to this, he had been attending public school where he had been subject to being bullied.  The Judge’s position was the cost of the Christian Brothers Academy were proportionate to the improvement in the child’s life and the benefits the child received from attending this school.  The allocation of 71% of the tuition cost to the father was based on the analysis under the Child Support Standards Act.

Conclusion

Fathers beware!  If your children attend private school you can be forced to pay for a portion of the tuition.

William Marriato of Topeka, Kansas, in 2009, responded to an advertisement on Craigslist.  A lesbian couple, also located in Kansas, were seeking a sperm donor.  He stepped up to the plate and donated the sperm.  He did this to be kind and helpful.  He received no financial remuneration.  The donation resulted in the successful birth of a daughter.

 Lesbian Couple Breaks Up

After the child was born, the lesbian couple broke up.  One of the women was unable to continue working because she had become ill.  As a result, she applied for welfare from the State of Kansas.

Child Welfare Department Goes After William Marriato For Child Support

The Welfare Department in Topeka, Kansas brought legal proceedings against William Marriato.  Mr. Marriato argued he had entered into written agreements prior to making his sperm donations.  He claimed this agreement released him from all financial responsibility from children born from his sperm donation.  The Department of Children and Families disagreed with Mr. Marriato.  They claimed he was financially responsible for supporting the child because a physician did not perform the artificial insemination.

 Kansas Law Considers Him The Father

Unfortunately, for Mr. Marriatto, under the law in Kansas, he is considered the father of the child and is financially responsible for child support.  This was because a physician did not handle the artificial insemination of the mother.  In Kansas the utilization of a physician to artificially inseminate the mother is necessary to prove the sperm donor was actually a donor and did not have sexual relations with the mother.  In the event a physician had been utilized to artificially inseminate the mother, the physician would first check for sexually transmitted diseases.  In addition, the physician would have investigated as to whether either of the parents had genetic disorders which would have impacted on the child.

Conclusion

Before you donate sperm, you should be careful to investigate the laws of the state you are in.  Kansas is a state that does not recognize same sex marriages.  Self-help in this situation allowed for the birth of a healthy child and caused the gracious, cooperative, good intentioned father to be stuck with between 18 and 21 years of child support!

In a recent case in Nassau Country, Justice Daniel Palmieri, sitting in a Matrimonial Supreme Court Part, awarded a husband legal fees of $84,000 pursuant to New York Domestic Relations Law Section 237.  A trial had taken place between the husband and wife.  The parties agreed the court would consider issues concerning attorney’s fees.  The husband had requested $120,000 in legal fees for the two different law firms that had represented him during the course of the matrimonial litigation.

Obstructionist Tactics

The wife’s attorneys presented an argument that the husband had engaged in “obstructionist tactics” by forcing the case to go to trial.  They claimed he had unreasonably refused to settle the case.  His actions, in refusing to settle the case, resulted in the litigation being prolonged and a trial being necessary causing significant attorney’s fees to accrue.  Justice Palmieri took the position the husband did not engage in obstructionist tactics.  He stated, in his decision, the husband simply did not want to settle. His decision stated “bad faith by a litigant could not be inferred because the Court had ruled against the litigant with regard to certain applications before it.”

Disparity Of The Income Of Husband And Wife

The Court took into consideration the disparity in income between the husband and wife.  Husband earned about $90,000 a year while the wife earned $365,000 per year.  Unfortunately for the husband, the Court refused to award him attorneys fees for the legal service provided by one of the two law firms that had represented him because no bills or affidavits documenting said attorneys fee’s had been submitted with regard to this application.  In the end, the court found the wife should pay $84,000 dollars in legal fees pursuant to the husband’s application.  The court ordered that $53,000 was to be paid to his attorney and the balance was to be paid directly to the husband.

Conclusion

Fathers who exert their rights can succeed in obtaining all types of relief from the Family Courts and Supreme Courts in the State of New York.

Judge Lillian Wan, sitting in the Family Court in Bronx County, New York, recently made an unusual decision which resulted in an out of state father receiving custody of his son.  In this case, the father’s name was London.  He resided in Georgia.  He had brought an application for custody.

Neglect Proceeding Against Mother

Neglect proceedings had been brought against the child’s mother, Sameerah.  The parties’ son, Jadaquis, and his three siblings had been placed in foster care in New York.  Jadaquis had been placed in a non-kinship foster home.  He had been separated from his brothers.  He had been moving from one foster home to another.

Interstate Compact Concerning Placement of Children

Pursuant to an interstate compact considering the placement of children, an application was brought to the child welfare authorities in Georgia on three separate occasions.  These applications requested a review and approval of London’s residence in Georgia as an appropriate place for Jadaquis to live.  On each of the three occasions, the Georgia Welfare authorities found London’s residence in Georgia was unsuitable for Jadaquis to reside in.

Judge Lillian Wan noted, even though the Georgia Welfare authorities took the position London’s residence, in Georgia, was unsafe for Jadaquis to reside in, the Georgia authorities took no action regarding London and his wife’s six year old child who resided with them in the home.

Judge Wan ruled Jadaquis, who during the pendency of this proceeding lived in five non-kinship foster homes, should be allowed to live with his father in Georgia.  Judge Wan’s decision held Jadaquis’ best interest would be to reside with his father in Georgia.  Judge Wan gave the father sole custody of his son.

            Supreme Court Justice, Kenneth Fisher, sitting in Monroe County, New York, recently dealt with issues concerning the obtaining of mental health records for litigation purposes by use of a parental release under the Federal Health Insurance Portability and Accountability Act (HIPAA).  The court held a HIPAA release form was inappropriate to obtain medical records for children. The court went further and found that only a court order after disclosure and presentation to a judge would be appropriate to obtain children’s mental health records related to custody litigation.

            Justice Fisher ordered the father, who had obtained the mental health records pursuant to a HIPAA release form, to return the records of his daughter to the psychologists and psychiatrists who had given them to him.  The psychiatrist had provided the father with medical records because he believed “parents have an unfettered right of disclosure.”

 Privileged Records

            In this case, the court held “a party seeking to obtain privileged material as it pertains to a minor child is obligated to utilize a judicial process sufficient to give notice to the court and the treatment provider by a motion or application for a judicial subpoena deuces tecum on notice to the parties and the treatment provider.”  The court went on to say it had a duty in custody matters to deal with issues concerning the children’s best interest. The court stated that in “the context of a child custody proceeding within a matrimonial action communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient for the core opportunity to exercise its obligations to determine the best interests of the child and its role as parents patriae in determining the custody of a minor child.”

Conclusion

            HIPAA forms are insufficient to obtain medical records in contested custody proceedings. An application has to be made to the court.