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Elliot S. Schlissel is a father’s rights lawyer. Elliot has been representing fathers in relocation hearings, custody proceedings, child support hearings and all aspects of matrimonial law and family law for more than 45 years. Elliot and his associates may be reached for consultation at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.
Courts usually do not render court orders ordering joint custody. Parents can work out joint custody agreements, but these usually have to be worked out out of court. In an unusual case, a court attorney referee in Nassau County Supreme Court recently rendered a decision which granted both parents joint legal and physical custody of the children. She rendered this decision because she felt it was in the children’s best interests.
In this case the mother and father each sought sole custody of the two minor children of the parties in their divorce lawsuit. An attorney was appointed to represent the children. This attorney for the children took the position the father was better suited to manage the children’s educational needs.
Equal Parenting Time
The parents had previously entered into a temporary parenting schedule which gave each parent virtually equal parenting time with the parties’ two sons. Referee McCormick referred to the New York State Court of Appeals case of Braiman v. Braiman with regard to the issue of joint custody. This case noted joint custody was inappropriate when both parties were “embattled and embittered.” However, it did not prevent courts from ordering joint custody in all cases.
Referee McCormick found the evidence set forth that both parents were actively involved in their children’s lives. Both of the boys enjoyed spending time with each of their parents. She also found that both parents sought to encourage the relationship between the boys and the other parent. She found the parents lived in close proximity to each other and therefore joint custody was a feasible solution to this case. Referee McCormick found both parents should have a decision making role for their children. She also found the parents should each have about an equal amount of parenting time with the parties’ children. Court Attorney McCormick went on to award joint physical and legal custody to both of the children’s parents based on the fact it was in the children’s best interests.
Conclusion
This is an unusual decision. Courts rarely order joint custody in situations where the parties cannot amicably work out joint custody arrangements on their own. Court Attorney McCormick’s decision is well reasoned and appropriate in this case.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a father’s rights attorney with nearly 45 years experience representing fathers in all aspects of family law. He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Justice Leonard Steinman sitting in a Supreme Court Matrimonial Part in Nassau County recently had a case before him where the husband claimed the wife had turned his sons against him. He also claimed the wife was trying to turn his daughter against him too. During this divorce case the wife argued the husband was a deadbeat father. She claimed he attempted to “starve” her and the children by intentionally taking action to have his income reduced. Justice Steinman found the sons had “by deeds and words vociferously proclaimed their hatred of their father.” He also noted the daughter had also expressed some hostility towards her father.
Justice Steinman found the wife had intentionally prevented the father from maintaining a loving relationship with his sons. The court had appointed a forensic evaluator in the case. The forensic evaluator concluded the wife had contributed to the boys’ “disenfranchisement” with their father. The forensic evaluator took the position that an award of custody to the mother would result in the sons’ having no relationship whatsoever with their father. The forensic evaluator took the position that an award of custody to the mother would result in the father having virtually no contact with his sons. In addition, the evaluator found the daughter would also eventually adopt the same position as her brothers and it would be impossible to establish a visitation arrangement between the father and his daughter.
Judge Steinman awarded the mother residential custody of her sons. He took this position because if he tried to award the father custody of his sons, it would only foster more hatred between them. However, he found it was in the daughter’s best interest to separate her from her brothers and from her mother. For the purpose of allowing the father to maintain a relationship with his daughter, he awarded the father legal and physical custody of his daughter.
Conclusion
This is a very unusual decision. Judges do not like to break up brothers and sisters. Here the judge had no choice. The mother’s actions would have turned the daughter against the father and he would have lost his relationship with all three children had the judge not taken this action.
In a case before Onondaga Family Court Judge Michael Hanuszczak, a father sought a change in custody due to the mother violating a custody order by preventing him from having access to the parties’ child for a period in excess of one month. He specifically requested physical custody be changed from the mother to him. The mother had brought her own application to the Family Court. She sought a modification of the current custody order from joint custody to sole custody for her.
During the course of the proceedings, the mother acknowledged she had violated the prior custody order by withholding the child from the father. She stated she took this action because the exchanges of the child between the father and the mother had become violent. Judge Michael Hanuszczak found the mother had willfully violated the order of custody. The judge took the position there was enough credible testimony with regard to the change in circumstances warranting a change of the prior custody arrangement. He held the breakdown and deterioration of the parental relationship between the mother and the father was itself a change of circumstances justifying a modification of the custody order.
Father To Provide a More Stable Environment for Child
The judge reached a decision whereby joint custody was no longer viable due to the lack of communication and the hostility between the father and the mother. The judge found the father could provide a more stable environment for the parties’ child. The judge took into consideration that even though the father was unemployed he had stable housing and a family support system. The judge found the mother’s inappropriate behavior during the course of the exchanges of the child and her willful violation of the prior custody order by preventing the father from having parental time with his child was detrimental to the child’s best interests. Judge Hanuszczak therefore awarded the father sole legal and physical custody of the child.
Conclusion
If you find yourself in a situation where the child’s mother is disobeying a custody order which granted you parenting time with your child, you can bring a proceeding to change custody. Children have two parents and both parents have a right to have a relationship with their children.
Justice Jeffrey Sunshine sitting in the Supreme Court Divorce Part in Kings County presided over a case where the husband moved for a declaratory judgment that the provisions of a judgment of divorce concerning child support payments were invalid and unenforceable. A referee had addressed these issues. The referee found the child support payments of $400 per week should be paid by the husband to the wife. This determination was based on 25% of the husband’s adjusted gross income payable concerning his two children.
The husband alleged in his application to the court this provision did not contain necessary language under the Child Support Standards Act and pursuant to the New York Domestic Relations Law. Wife argued in her papers the support provision was valid and enforceable. She stated the parties knew their rights relating to the Child Support Standards Act and the Domestic Relations Law.
Justice Sunshine found the husband had made a prima facie showing the provision regarding child support was invalid and therefore unenforceable pursuant to New York Domestic Relations Law Section 240(1-b)(c). He stated in his decision that support payments under this section of the law must be based on the combined parental income not only on one parent’s income. Judge Sunshine went on to state the final judgment of divorce only reflected husband’s adjusted gross income. The wife’s income was not taken into consideration at the time of the calculation of the child support. He therefore ruled there was too much ambiguity to speculate on what the combined income of both parents were. He therefore declared the child support section of the judgment of divorce to be invalid and unenforceable.
The child support breakdown must be specifically set out in divorce settlement agreements that are part of the Judgment of Divorce.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a father’s rights attorney with nearly 45 years experience representing fathers in all aspects of family law. He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Once a court order is issued by a court of competent jurisdiction concerning the issue of custody, the parties to the proceeding are required to comply with all of the provisions of this order. This is true even if compliance with the court order is inconvenient for one of the parties. Custody orders determine who shall have parenting time with the child during the course of a year. There can be problems with schedules concerning court ordered visitation. If the parties are not able to amicably work out changes in the scheduling of the visitation they have to comply with the court order.
When a parent fails to comply with a court order concerning visitation and parenting time with the child, the other parent whose rights have been impacted can take legal action to hold the other parent in contempt, have that parent sanctioned, and/or have custody changed. In those situations, the court can ask the parent who violated the prior order to pay the other parent’s legal fees.
Custody orders usually take into consideration the child’s relationship with each of the parents and the non-residential custodial parent’s rights to have parenting time with the child.
Relocation and the Impact on the Non-Residential Custodial Parent
In situations where the residential custodial parent seeks to relocate the court will take into consideration how the relocation of the child will impact on the other parent’s ability to visit with the child and maintain a relationship with the child. There is an appeals case in the State of New York called Stetson v. Feringa which provides an important example of how courts in New York look upon requests for relocation.
In this case, the parents had joint custody of their son. The son resided with the mother and the father had visitation. The father had brain surgery prior to the child’s birth. He suffered from various impairments as a result of the brain surgery. The mother had been facilitating the visits with the father and providing transportation to and from the visits.
Mother Refuses To Provide Transportation For Child’s Visits With Father
The mother met a fellow online and decided to marry him. Unfortunately she lived in New York and he lived in Oklahoma. For purposes of the marriage he temporarily moved to New York. After the marriage, the mother refused to provide transportation for the visits of the boy and his father. Due to the lack of transportation the father had no visitation with his son for about six months. Thereafter the mother brought a proceeding to modify the prior custody order. She also sought to move with the son to Oklahoma. The Family Court found the mother’s request was without merit and dismissed the proceeding. She appealed the ruling.
The Appeals Court
The appeals court rendered a decision that the purpose of the mother moving to Oklahoma was her remarriage. The court found this was not a sufficient reason to uproot the boy. They found it was not in the child’s best interests to move to Oklahoma, but in the mother’s best interests. The mother claimed she would have enhanced financial capabilities in Oklahoma, but the court found these were not significant enough to overcome the fact that it was not in her child’s best interest to move from the locale of the father.
Out of Court Resolution
If you are having difficulty concerning visitation and parenting issues with the other parent of your child, the best way to deal with this is through an out of court negotiated resolution. If you cannot speak to him or her, you can hire an attorney to deal with this issue.
Elliot S. Schlissel is a father’s rights lawyer who represents clients concerning custody, child relocation, divorce, child support and other family related issues. He has been helping his clients for almost 45 years regarding these matters.
An appeals court has ordered that the New York State Central Register of Child Abuse and Mistreatment remove the name of an aspiring pediatrician. He had been reported for hitting his two year old son on his butt on one occasion. In its decision to remove the father’s name from the child abuse registry, the appeals court stated there was no evidence the incident impaired the child’s physical, mental or emotional condition.
Maurizio was giving his son a bath in July of 2012. His son started to eat soap. He slapped him one time on the butt to discipline him and convince him that eating soap was not something he should be doing. The next day the father noticed his child’s butt was bruised. He told the son’s daycare provider about the incident. The daycare provider reported him to Child Protective Services. Child care providers are one of the many professionals who are mandated under New York State Law to report suspected cases of child abuse and/or child neglect.
An investigation was undertaken by the Suffolk County Department of Social Services. The Social Service worker determined the incident should be considered “indicated” for child abuse, inadequate guardianship and excessive corporal punishment.
Father Requests Child Abuse Report To Be Marked “Unfounded”
The father requested the report be changed from indicated to unfounded. A hearing was held before an Administrative Law Judge. The Administrative Law Judge found the father’s inappropriate behavior was supported by a “preponderance of the evidence” and that the “indicated report should be disclosed to all inquiring agencies.”
At the time of the hearing, the father testified he spanked the boy one time, his son cried briefly, and the family thereafter resumed to its normal activities. His son did not complain of pain. There was no negative impact on the boy as a result of the incident. The impression left by the slap on the child’s butt was exacerbated by the boy’s sensitivity due to the hot bath water the boy was in at the time. The father was remorseful and cooperative with the Department of Social Services. He took an anger management program and he had a positive attitude about changing his ways concerning corporal punishment.
His wife, the child’s mother, testified the husband had not on any other occasion meted out excessive corporal punishment to their other two children and their usual manner of disciplining their children was giving them a “time out”.
The Appellate Division (an appeals court) in its decision stated a parent could “use reasonable physical force to promote discipline”. The court reversed the lower court’s decision and changed the fact that he was “indicated” for child abuse to “unfounded”.
Conclusion
Parents live in the real world with their children. Sometimes children need to be strongly reprimanded to put them on the right path, prevent them from being injured, and to drive home points which don’t seem to stick any other way. Child abuse agencies tend to be overly zealous and look at each and every indication of any physical contact between a parent and his child involving discipline to be inappropriate. The pendulum on this issue in many situations has swung too far. The decision of this court was appropriate in setting aside an incorrect ruling concerning this father.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel has been representing fathers for more than 45 years in all aspects of family law and divorce law. He and his associates are available for consultation. To schedule a consultation, please call 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
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