Wife Found to be in Contempt for Violating Court Order

March 14, 2016 By

Father on beach with child

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.

Filed Under: Custody, Fathers Rights

Mother Relocates to Texas and Seeks to Take Son With Her: Her Application is Denied

March 11, 2016 By

Two Parents Fighting Over Child

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.

Filed Under: Custody, Fathers Rights, Relocation

The New Spousal Maintenance Law In New York

February 3, 2016 By

divorce attorneyIn late 2015, the law in New York concerning spousal maintenance (alimony) changed. The following are some excerpts from this new statute:

  1. The new law establishes a $175,000 income cap with regard to determining how much spousal maintenance (alimony) should be paid.
  2. 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.
  3. 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.
  4. 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.
  5. The duration of the spousal maintenance now specifically relates to how long the parties were married for.
  6. 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.father's rights lawyer in New York

Filed Under: Fathers Rights Tagged With: , , ,

Modifying Child Custody Orders

January 21, 2016 By

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.

Filed Under: Fathers Rights Tagged With: , , , , , , , ,

Evidentiary Standards in CPS and ACS Proceedings – Part II

January 8, 2016 By

CPS and ACS defense attorneyAbuse 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.family law attorney

Filed Under: Fathers Rights Tagged With: , , , ,

Evidentiary Standards in CPS and ACS Proceedings – Part I

January 5, 2016 By

family law lawyerThe 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.family law attorney

Filed Under: Fathers Rights Tagged With: , , , , , ,

Uncle Found Not Guilty of Child Abuse

December 28, 2015 By

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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.

Filed Under: Fathers Rights Tagged With: , , , , , ,

Investigations by Child Protective Services (CPS) and Administration for Children’s Services (ACS)

December 23, 2015 By

lawyer for parents in CPS proceedingsThe process by which Child Protective Services (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) looks into allegations of child abuse and child neglect is referred to as an investigation. These are not criminal investigations. These are more appropriately described as narrative reports on the status of the children and the interaction with the children’s family related to the event or events in question. It should be noted that CPS and ACS workers are looking to find child abuse or child neglect in their investigations. Once a report of alleged child abuse or alleged child neglect is made it is presumed to be accurate by the CPS or ACS worker until such time as the worker looking into the matter determines it is more likely that child abuse or child neglect has not occurred. In other words, you are guilty until proven innocent!

The purpose of a CPS or ACS report is to reach a determination as to whether or not a child needs to be protected from potential future abuse. CPS and ACS reports focus on the circumstances involved in the family, their history, their economic circumstances, the relationship of family members, their school programs, what their household looks like, whether there are adequate safeguards in the home, adequate food in the home, whether the home is messy, ill maintained and other issues.

Conclusion

Although CPS and ACS workers are not criminal investigators they can have a significant impact on families. Their investigations should not be taken lightly. The fact that they are looking for evidence of child abuse and child neglect must be carefully dealt with. The presumption the CPS or ACS worker is investigating to find the truth as to what happened, may not be accurate. The purpose of the investigation is to ascertain as to whether the allegations are not true. Until such time as they reach the conclusion that the allegations in the initial report are not true, there is a presumption by the CPS or ACS worker that they are investigating an actual case of child abuse or child neglect.attorney for parents facing CPS or ACS charges

Filed Under: Fathers Rights Tagged With: , , , ,

Father Granted Supervised Overnight Visitation

December 15, 2015 By

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Elliot S. Schlissel is a father’s rights attorney in the Metropolitan New York area.  He and his associates have been father’s rights advocates for more than 45 years.  He can be reached for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Filed Under: Fathers Rights Tagged With: , , , , , , ,

Grandparents Visitation Proceedings in Family Court

December 10, 2015 By

Grandparents rights lawyerGrandparents, in the State of New York, can bring visitation proceedings with regard to their grandchildren in the Family Court. The proceedings must be brought in the Family Court located in the County where their grandchildren reside. Although grandparents can bring these proceedings, they have to meet certain basic requirements to be successful in these proceedings.

An example of one of the situations where the grandparents can obtain either visitation or custody of their grandchildren is where one or both of the grandchildren’s parents are deceased. In addition, where the courts find the appropriate conditions exist for the grandparents to have visitation and the visitation is in the grandchild’s best interests, the courts can also grant the grandparents visitation. In these cases the grandparents have the obligation to show the court there are circumstances involving a strong relationship between the grandparents and their grandchildren and that it would be in the grandchild’s best interests to continue to maintain that relationship with the grandparents.

Grandparents Visitation Where Both Parents Are Alive

In cases where both parents are alive and neither of them are unfit parents, the grandparents must show, in their petition, more than that they simply have a great love and affection for their grandchildren. They must establish that their relationship with the grandchildren has existed over a period of time and the parents have taken action to prevent the continuation of this relationship between the grandparents and their grandchildren. The grandparents must show that they have tried to maintain the relationship with the grandchildren and the parents have interfered or prevented the continuation of this relationship.

If the grandparents can show they have had a relationship over a considerable period of time with their grandchildren and this relationship has contributed to the health and well-being of the grandchildren the courts will find that it is in the grandchildren’s best interests to continue to maintain their relationship with their grandparents. In these situations the court will give the grandparents visiting rights with regard to their grandchildren.

Grandparents Rights in New YorkElliot Schlissel is a grandparents rights’ attorney.

Filed Under: Fathers Rights Tagged With: , , , ,
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