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Elliot S. Schlissel is a father’s rights lawyer with more than 45 years of experience representing fathers in all aspects of family law and divorce. He and his associates are available to discuss the details of your particular situation. Please call him at 516-561-6645, 718-350-2802 or send an email to schlissel.law@att.net to set up a consultation.
This is a story about two young parents who had a daughter in 2003. Shortly after the daughter was born, the child’s mother agreed to have the maternal grandmother raise the child in Franklin County, New York. This gave the mother the opportunity to go away to college. While the mother was attending college, she visited her daughter sometimes on weekends, holidays, and on school vacations.
The child’s father had enlisted in the military before his daughter was born. He was twice deployed in Iraq. Due to his deployment overseas he rarely saw his daughter. When he was discharged from the military in 2007, the father worked out an arrangement with the maternal grandmother whereby he would have a regular visitation schedule with his daughter. During this period of time he was able to reestablish his relationship with her.
Family Court Custody Proceeding
When the mother returned to New York in 2011, the grandmother moved out of state. A proceeding was brought in the Family Court concerning the custody of the parties’ daughter. The Family Court awarded the parties’ joint legal custody, however the father was named as the residential custodial parent of his daughter. The mother was unhappy with the decision of the Family Court and she appealed to the Appellate Division of the Third Department, an appeals court. The Appellate Division affirmed the prior order of the Family Court. The court took into consideration the mother waited more than 2 years before she sought custody of her daughter. They found this action of the mother was “the most discerning factor” concerning whether or not she should be given residential custody. The appeals court also found the mother did not reestablish herself back into her daughter’s life in Franklin County for the purpose of avoiding the relocation of the child.
Conclusion
Fathers who love their children and are willing to make sacrifices to reestablish relationships with their children can prevail and obtain residential custody.
In a case before Supreme Court Justice Eugene Faughnan from Madison County, New York, a father sought to change the last name of his son. The father claimed he had had custody of his son since the boy was three months old. The mother only had eight hours of supervised visitation each week. Justice Faughnan found the father’s requested name change would promote the child’s best interests. In addition, Justice Faughnan found the mother had failed to come forward with any sustainable objection to the father’s request to change his son’s last name to his.
Justice Faughnan held the sharing of a surname by a child and his father he lived with was a legitimate issue. He found that it minimized “embarrassment, harassment and confusion in school and social context.” The judge in his decision found the father obtained custody of the child shortly after birth. The mother only had supervised visitation because of her prior misconduct. In addition, Judge Faughnan found the mother had never provided the child with any financial support. The court therefore was satisfied the father had met his burden of proof for the proposed name change and that this name change would be in the child’s best interest.
Elliot S. Schlissel is a father’s rights lawyer. He represents fathers on custody, paternity, visitation (parenting time) cases in both the Supreme Court during divorce proceedings, and in the Family Courts. He practices law throughout the Metropolitan New York area.
A father, J.M., sought custody of his special needs child who had autism. He claimed the child should remain with him because he had been a primary caretaker since January 2012. The wife cross-moved for custody. She claimed the husband was unfit and sought custody of G.M. She denied various family offense charges which had been brought against her and that she used illegal drugs.
Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County was assigned to handle this divorce case. After reading the facts and circumstances of the case she found joint custody was not an appropriate option. She held the relationship between the father and mother was both acrimonious and volatile. In her decision, she found the child’s teacher had stated G.M. had thrived while she was temporarily in the father’s custody. In addition, a forensic evaluator who investigated the circumstances and events of the relationship between the mother, the father and G.M. recommended the father should have physical custody and the mother should be granted parenting time.
Mother Failed To Abide By Court Orders
In addition, the court found the mother refused to follow court orders. She further found the mother disrespected authority and had issues over a long period of time concerning prescription drugs and illegal drug usage. The judge found based on these circumstances and the fact that there was domestic violence between the father and the mother, the father was the more suitable custodial parent for G.M. Her decision stated in this case there were “two imperfect parents.” She found both of them used marijuana on a regular basis. She found the father had tested negatively for marijuana use for a longer period of time than the wife. She also found the father was better suited to create a relationship between the mother and the child if he was given custody. She therefore entered a decision awarding the father sole legal and physical custody.
Elliot S. Schlissel is a father’s rights attorney. He has been helping fathers obtain custody of their children for more than 45 years.
In a recent case before Justice Jeffrey Goodstein pending in a Supreme Court Divorce Part in Nassau County, New York, a husband sought a temporary spousal maintenance (alimony) award from his wife. He asserted that he had had discussions with the wife. As a result of these discussions he retired and closed his armored car company. He claimed he had not earned any income since 2010.
Justice Jeffrey Goodstein in his decision regarding the husband’s motion stated there were no claims concerning the husband being disabled or any explanation as to why he was no longer able to find employment. Justice Goodstein suggested the husband should have looked for a job prior to bringing the application for spousal maintenance.
The wife argued in this case the husband was supporting himself, his girlfriend and in addition, his parents. She therefore claimed the husband’s application for spousal maintenance from her should be denied.
Judge Goodstein found the pre-separation standard of living of the parties to the marriage was funded by the husband. He had been earning more than one million dollars a year. The husband had stated in his moving papers he wanted the wife to work because he felt it was important she develop a work ethic. Justice Goodstein’s decision stated the husband’s retirement was a lifestyle choice and the husband had no real need for receiving funds from the wife. Justice Goodstein found if he granted the husband’s application for maintenance it would serve as a disincentive for non-monied spouses to make any effort to earn independent income after a marriage failed. Justice Goodstein therefore imputed $300,000 to the husband based on his prior earning capacity. Based on this imputed income, Justice Goodstein found the husband was not entitled to a temporary maintenance award. He found the husband was the more monied spouse and not entitled to any spousal maintenance whatsoever.
Conclusion
If you are thinking about getting divorced, don’t retire!
When considering bringing a divorce lawsuit and there is a marital home involved, a question arises as to what will happen to the house in the divorce case. Assets acquired during the marriage are considered marital property. If the home was acquired during the marriage, it is a marital asset. (If the home was acquired by one of the parties to the marriage prior to the marriage, it is separate property and may not be distributed in the divorce. However this is a different topic than what this article is about, and I will not be going into details concerning what happens to the home as separate property in divorces at this time.)
It will be necessary to appraise the home to establish its market value. Thereafter one would have to take into consideration the amount of the mortgage on the house. By subtracting the mortgage from the value of the house, you arrive at the home’s equity. Let’s assume for argument sake there is going to be a 50/50 split of marital assets. In this example, let’s say the home is worth $400,000 and there is a $100,000 mortgage remaining on the property. The homeowners would thereafter have equity in the amount of $300,000 and each of the parties would have an equity interest of $150,000.
If there is plenty of cash available, the party who wants to keep the home can exchange a marital asset worth approximately $150,000 for the other party’s ownership interest in the house. If there aren’t any liquid assets a trade can be made with regard to pension benefits or 401(k) assets. However it should be noted pension and 401(k) assets are pretaxed assets and therefore they would have to be tax impacted on before an exchange for a real estate interest could be made.
Is the Home Affordable?
One of the issues which must be faced by the party seeking to purchase the home is whether after purchasing the home, he or she will be financially able to maintain the mortgage, taxes, utilities, upkeep and maintenance on the home. Homes can be expensive to maintain and the issue of affordability should be closely looked into before making any financial arrangements.
Residential Custody of the Children in the Home
Many courts will give the parent who obtains residential custody of the parties’ children exclusive occupancy and possession of the home until such time as the youngest child is either 18 or 21 years of age.
Conclusion
The issue of one of the parents keeping the home may be more complicated than it looks to be at first glance. The best way to deal with this matter is to meet with an experienced divorce lawyer and go through all of the details with him or her.
Ibrahim was charged in Bronx County Criminal Court with endangering the welfare of a child. The child in question was his nephew. His attorney moved for dismissal of the charges against him because they were facially insufficient.
An informant had seen a small child seated on the first floor fire escape and there were no adults supervising the child. The informant looked around for nearly an hour and could not find a parent or guardian who would supervise the child. Thereafter, the informant called the police.
The police picked up the child and brought the child to the police station. Sometime thereafter Ibrahim arrived at the police station. He advised the police he was the child’s uncle.
Application To Dismiss The Criminal Charges
Ibrahim, in his application to dismiss the criminal charges against him, argued the Complaint against him was facially insufficient because it did not document that he had either custody or control of the child at the time and place of the alleged incident.
The District Attorney’s office claimed the charge did not require they show a relationship between the defendant and the child. They claimed the fact that Ibrahim appeared at the police station, acknowledged he was the child’s uncle and sought to take the child was sufficient to support the allegations of endangering the welfare of this child. The court did not agree with the prosecutors. The judge found there were no facts alleged by the District Attorney’s office showing the child was under Ibrahim’s care and control on the first floor fire escape. The judge went on further to state in his decision the prosecutors had an obligation to establish Ibrahim was in charge of watching his nephew. The prosecutors did not show he was responsible for his nephew on the date of the incident. He therefore could not be held liable for endangering the welfare of the child. Since the prosecutors did not meet their burden of proof, the case was dismissed.
Elliot S. Schlissel is a father’s rights lawyer. He represents fathers with regard to allegations of child abuse and child neglect brought by Child Protective Services (CPS) or the Administration for Child Services (ACS).
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a father’s rights lawyer. Elliot has been representing fathers in child support hearings, custody proceedings, and all aspects of matrimonial law and family law for more than 35 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.
Supreme Court Justice Matthew Cooper, sitting in New York County, was faced with a dilemma concerning serving a man with notice of his divorce. The wife in this case brought a proceeding to serve her husband with divorce papers by giving him notice on Facebook. She claimed there was no other viable means to serve him. He did not have an address and he was unemployed.
Justice Cooper noted this was a case of first impression. His research indicated federal courts had, on several occasions, allowed service of process through the social media website, Facebook. However, the federal courts had also conditioned this upon service by an alternate method too.
Justice Cooper found the wife had submitted evidence she was unable to personally serve the husband after using due diligence. His whereabouts were unknown and it was impractical to serve the husband by any other method.
Breaking New Legal Ground
Justice Cooper stated this method of service of legal documents represented a “radical departure from the traditional notion of what constitutes service of process.” He found the wife had demonstrated the husband had regularly logged onto his Facebook account. He also found the wife had access to the husband by text messaging him. Justice Cooper granted the wife’s application to allow her attorney to serve the husband by notifying him on Facebook that he was effectuating legal service of process upon him. The attorney had to do this repeatedly for several weeks, or until acknowledged by the husband that it was received.
Conclusion
In the past, if you couldn’t be found, you couldn’t be sued for divorce. After this decision, even if you are hiding out and can’t be found, should you go on your Facebook account you can still be served in a divorce lawsuit.
Elliot S. Schlissel is a father’s rights lawyer. He represents fathers in divorces, custody cases, child support proceedings and all other family related matters.
Anetta and Cezari were born in Poland. They both came to the United States to be married in Brooklyn, New York in 2003. After they were married, they returned to Poland to live. They had two sons, K.G. who was born in 2004, and M.G. who was born in 2008. There were claims that their relationship involved spousal abuse.
Anetta took her children and immigrated to New York in April 2011. Her mother had been living in Brooklyn. She moved in with her. In 2012, Anetta brought a divorce case in Brooklyn, New York against Cezari.
Family Court Proceedings
Both Anetta and Cezari brought proceedings in the Family Court of Kings County (Brooklyn). Anetta was granted both legal and physical custody of the parties’ children by the Family Court. Cezari was given visitation with the children, but the visitation had to take place within the United States.
U.S. District Court Proceeding
Cezari brought a proceeding in the U.S. District Court for the Eastern District of New York (a federal court). He took this action under the Hague Convention, an international child abduction remedies act. He asked the District Court to have the children returned to Poland with him. Judge Frederic Block sitting in the Eastern District of New York found the children’s removal from Poland may have violated Cezari’s custody rights under Polish Law. However, he also found the children had “settled” in the United States. Pursuant to Article 12 of the Geneva Convention this made the United States their home. He found they attended school and church in the United States. He also found they were old enough to form relationships and attachments in their new home.
The judge did find there were some questionable issues concerning Anetta’s financial stability and also issues about the children’s appropriate immigration status. However, after reviewing all of the factors Judge Block found the children had “become so settled in their new environment that repatriation [is] not in [their] best interests.”
Conclusion
If you want to challenge custody, bring court proceedings immediately. If the children become too settled in their new country you may not be able to repatriate them.
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