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Elliot S. Schlissel is a father’s rights attorney with more than 35 years of experiencing representing fathers in divorce, child custody and visitation proceedings. He can be reached for consultation at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email to schlissel.law@att.net.
In an unusual case in Monroe County Family Court, Judge Joan Kohout was presented with what may be referred to as a modern dilemma. A mother and her same sex wife, had a child born to them during the course of their marriage. Since the child was born during the course of the marriage, they claimed they were the legitimate two parents of this child. They argued in Family Court a man could not bring a paternity lawsuit claiming he was the father of the child. They argued the child had developed an attachment to the mother’s wife and therefore the father should be equitably estopped (barred) from being allowed to prove paternity of the child.
Judge Kohout pointed out the wife had not taken action to adopt the child. She also noted in her decision the mother and the wife were currently involved in a divorce lawsuit.
Judge Kohout in rendering her decision stated the mother had not been artificially inseminated. She had become pregnant as a result of having sexual relations with the man who sought to prove paternity. The sexual relations took place while she was married to her wife. The mother acknowledged the man seeking to prove paternity was actually the biological father of the child. Judge Kohout found based on these facts, even though the mother and wife were married at the time of the birth of the child, the father should not be precluded from proving he was the actual, biological father. The court took into consideration only 8 months had gone by since the child was born and the father filed his petition. The judge also stated in her decision there was no evidence the father had acquiesced or promoted the wife’s assuming the role of the parent of the child.
Judge Kohout concluded there was neither a presumption of legitimacy nor an equitable estoppel barring the father from bringing the paternity action. The court ordered that genetic marker testing be undertaken to determine if the father was indeed the biological father.
Conclusion
There is a doctrine called equitable estoppel with regard to heterosexual relationships. Under this doctrine, if a man acts as if he is the father of a child for a period of time, and thereafter changes his mind and seeks to have paternity testing to determine whether he actually is the biological father of the child, he should be barred from being able to show he is not the actual father of the child. Equitable estoppel is based under the idea it is in the child’s best interest not to change who the child perceives as his father. This is not necessarily a legal theory the writer subscribes to.
Child Protective Services is extremely aggressive on Long Island with regard to situations involving parents who use corporal punishment on their children. In a recent case, an appeals court found with regard to a Suffolk County father who spanked his son, that his actions were not inappropriate and this did not constitute child neglect.
In October of 2012, a father spanked his 8 year old son when he cursed at an adult during a party at a friend’s home. The father was reported to Child Protective Services. In March of 2013, in a proceeding in the Family Court of Suffolk County a ruling was made against the father finding he had neglected his child. The Department of Social Services claimed he had spanked his child with an open hand at the party. When they returned home from the party, they claimed he struck his son on the legs, arms and buttocks with a belt.
Family Court Proceedings
During the Family Court proceeding the father admitted he had spanked his son at the party. He denied he struck his son with a belt when they returned home. The father appealed the ruling of the Suffolk County Family Court to the Appellate Division of the Second Department (an Appeals Court located in Brooklyn).
Appeals Court
The Appeals Court held “the father’s open handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force and, under the circumstances presented here, did not constitute excessive corporal punishment.”
As a result of the Appeals Court ruling, the original neglect decision by the Family Court was dismissed. The evidence presented in Family Court, at a fact finding hearing, was not sufficient to prove the son had been struck by the father with a belt.
Conclusion
Child Protective Services on Long Island is extremely aggressive with regard to investigating and prosecuting parents who appropriately discipline their children with spankings when the circumstances require it.
Most parents assume when they are investigated by Child Protective Services they have to cooperate. This isn’t true. The investigators for Child Protective Services are looking for evidence usually to convict the parent of child abuse and/or child neglect, not to find the incident did not take place. The best route to take when contacted by Child Protective Services is to immediately contact an attorney experienced in handling child abuse and child neglect cases.
Judge Douglas Hoffman, sitting in a Family Court Part in New York County, recently had a case before him involving an international custody problem which needed to be determined pursuant to the Hague Convention regarding international child custody issues. The United States is a signatory to this convention. This convention is considered a treaty which has the same enforcement ability as a federal law.
The father took the position in this case the mother had wrongfully kept the children in New York. He argued before the court the children should be returned to their country of habitual residence, Israel.
The parties had entered into a divorce settlement agreement. The agreement was detailed and had specific clauses involving parenting time. The agreement provided the mother would have primary residential custody of the children.
The mother had contacted the father. They had worked out an agreement where the children would come to New York to live with her for a period of one year. She requested the children come with her to New York so she could continue her education in New York.
The father took the position, after the year expired, the mother refused to return the children to Israel. He claimed this action violated the terms of the Hague Convention. The mother took the position the children were now established in New York and they should therefore remain in New York. Judge Hoffman noted in his decision, although the children were comfortable living in New York, they had no objections to returning to Israel. Judge Hoffman found the father had established a prima facie case regarding the wrongful retention of the children in the State of New York. The judge found the father’s testimony was believable while the mother’s testimony, that the father had agreed to allow the children to spend a second year in New York, was not credible.
Judge Hoffman in his decision found the mother’s keeping the children in New York impaired and prejudiced the father’s rights to see his children which was in violation of the parties’ settlement agreement which was incorporated by reference into their 2007 divorce. The judge therefore ordered the mother immediately return the children to Israel.
It is estimated it costs approximately $245,000 to raise a child in the United States from birth to 18 years of age. This is based on a national average. However, in the northeast portion of the United States it is estimated it costs about $282,000 to raise a child. This is because the standard of living and the costs associated with said standard of living are much higher in the northeast portion of the United States. When taking into consideration adjustments for inflation, a child born in 2013 would cost an average middle class family approximately $305,000 to raise the child from infancy to adulthood. This information is based on a study by the federal government’s consumer expenditure survey.
This study did not take into consideration the costs related to the pregnancy. In addition, it also doesn’t take into consideration costs related to an individual applying to college and attending college. When the study was first undertaken in the year 1960, it cost approximately $25,000 to raise a child from birth to age 18.
The largest single expense in raising a child is the cost of housing the child. The studies have found most middle income American families spend a third of the cost for raising a child related to their housing expenses. The second largest expense involve child care and education which makes up approximately 18% of the cost of raising a child. About 16% of the expenses for the child relate to providing him or her three meals a day. The cost per child expenses decrease as a family has more children.
Elliot S. Schlissel is a father’s rights attorney representing fathers throughout the Metropolitan New York area with regard to issues involving child custody.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a father’s rights attorney. He can be reached for consultation at 516-561-6645 or 718-350-2802. He can also be contacted by email to schlissel.law@att.net.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a father’s rights lawyer. His office can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Please click on the link below to watch today’s video blog,
Elliot S. Schlissel is a father’s rights attorney. His office can be reached at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.
In a case before Judge Lillian Wan in the Family Court located in Kings County, both a father and mother brought petitions for sole custody of their child. An attorney for the child was appointed. The attorney for the child recommended the mother receive sole legal and physical custody of the child pursuant to the request of the child.
The court took into consideration that a neglect finding had been issued without admissions against the father for excessive corporal punishment. In addition there was an abuse finding against the mother based on her acknowledgment she intentionally burned the child’s buttocks. As a result of these findings the child was removed from the home.
Boy Released to Father’s Custody
The child in question, a young boy, was released to the custody of his father in March 2012. The boy has been in his father’s custody with supervised visitation granted for the mother since that time. Judge Lillian Wan found while there was a finding of neglect against the father, the finding against the mother concerning burning the child’s buttocks was a much more serious finding. Judge Wan took into consideration the boy had been living with the father since 2012 and there had been a dramatic improvement in the behavior of the father since that time. However, the court found the mother had not proven herself to be a stable, fit parent or shown remorse in therapy for burning the child.
Judge Wan reached the decision it was in the child’s best interest to give sole legal and physical custody to the father and give the mother unsupervised visits during the course of the day with the child. The mother was not given overnight visitation with the child.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a father’s rights attorney. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
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