Child Support: Are You Paying Too Much?

November 1, 2013 By

father's rights lawyerIn the State of New York, the non-residential custodial parent must pay child support to the residential custodial parent. There are specific requirements in New York concerning how much child support the non-residential custodial parent must pay. Generally speaking, the non-residential custodial parent must pay the residential custodial parent 17% of gross wages, less FICA, for one child, 25% for two children, 29% for three children, 31% for four children and 35% for five children or more.

The parent paying the child support is entitled to deductions for the amount he is paying in spousal maintenance (alimony) or child support for another child. In addition to paying these prescribed child support amounts pursuant to the Child Support Standards Act (a federal law enacted in all 50 states), the parent must additionally make contributions towards child care expenses and health care expenses.

Change in Financial Circumstances

Your child support expenses do not change if you lose your job, get downsized, become too ill to work, or retire before the child reaches the age of majority. To reduce your child support expenses, you either have to enter into an agreement with the other parent and have that agreement So Ordered by a judge or you have to bring a petition in either the Family Court or the Supreme Court (if you were divorced or a matrimonial action is pending) to reduce your child support obligations. The court can only award a reduction of child support starting on the date you brought your initial petition to the court. The child support reductions will not be retroactive to the time that you had the change in your financial circumstances which caused you to bring the application to court to reduce your child support expenses.

Child Support and Father’s Rights

Many fathers who have dealt with the Family Courts in the State of New York have come to the conclusion when the mother seeks custody of the children, the Courts tend to favor the mothers. Fathers need to be very aggressive when bringing an application to reduce child support payments. The best manner for a father to handle these matters is to hire an experienced dedicated father’s rights lawyer to represent him in these proceedings. There are a variety of technical aspects to downward modifications of child support a father must satisfy to convince a judge to reduce his child support obligations.

Father Loses His Job

Just because a father loses his job does not automatically entitle him to a downward modification of child support. The father must prove in court the loss of the job was not because he had done something wrong and also show the court through documentary evidence he has used due diligence to obtain other employment.

Is There Fairness in Child Support Orders?

I have been practicing law for more than 35 years. There are numerous times each month where I am presented with a case where the standard rules concerning child support may be unfair to a father paying child support. Since each case has its own unique circumstances, my office provides a roadmap as to what is necessary for the client to be successful in a proceeding for the downward modification of child support. We help gather the evidence and prepare the client for the necessary court appearances. If the case is properly prepared and properly presented a court will usually grant the downward modification of child support.child support attorneys

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Visitation Problems

October 31, 2013 By

father's rights lawyerVisitation problems with children usually involves one parent interfering with the parenting rights of the other. Parenting plans are usually established in divorce judgments, settlements in divorce cases, settlements in Family Court, judicial rulings on custody and visitation issues. Usually one parent is the residential custodial parent, meaning the child lives with this parent and the other parent has visitation (parenting time) with the child or children. So what do you do if one parent does not comply with the terms of the court order or parenting agreement? In the short run it is important to document the interference with visitation rights. A written diary should be maintained documenting each and every instance of one parent interfering with the other parent’s access or parenting time with the children.

Sometimes a mediator can be utilized to try to work out parenting time issues. If the parenting rights issue cannot be amicably resolved, it is strongly suggested you retain an attorney experienced in handling custody, visitation, and parenting rights issues. There are specific standards utilized by the courts in cases involving changing custody. Courts generally look for a change in circumstances before they will issue an order changing the residential custodial parent.

Reason for Change in Visitation Schedules

Life is not stagnant. Parents may seek to relocate. Employment of one or both of the parents may change, and with this change there may be a different work schedule that does not work well with the prior visitation order or visitation agreement. If visitation (parenting time) arrangements need to be changed and the parties cannot amicably work this out between them, a petition must be submitted to the Family Court or if the parties had been divorced, an application can be brought to the Supreme Court to modify the terms of the divorce related to the visitation/parenting time schedules.

Courts will utilize the standard of what is in the children’s best interest when dealing with custody and visitation issues. Protecting the children and allowing the children to reach their maximum potential and live a happy life is more important than the sometimes ping pong ball type of pulling back and forth between parents regarding visitation issues. If one of the parents does not live up to his or her responsibilities under Court Orders or visitation agreements this should be brought up to the judge handling the case and may be a ground for a change in custody.

How Much Visitation is Appropriate

It is in the child’s best interest to have two dedicated loving parents. Courts are moving towards giving the parent the child doesn’t live with as much visitation as is practical. Children that have two parents who want to spend time with them are blessed. The children should be allowed to grow and prosper as individuals within the love and understanding of both parents.help for caring fathers

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Distribution of Pensions and Retirement Assets in Divorces

October 23, 2013 By

fathers rights attorneysIn the State of New York, the distribution of assets accumulated during the course of a marriage is dealt with under the theory of equitable distribution. If the parties cannot amicably resolve issues concerning their assets in a divorce, the assets of the marriage which include, cars, houses, personal property, cash, investment assets, pensions and retirement accounts, are equitably distributed by a judge. The equitable distribution of retirement assets, pensions, 401(k)s, 403(b)s, and IRAs, can be a complicated process. Sometimes these assets need to be evaluated by a pension evaluation firm or an actuarial firm to determine the portion of the pension asset which was accumulated during the course of the marriage.

Retirement accounts the parties accumulate during the course of the marriage are considered marital property subject to equitable distribution. This is true even if only one spouse has a pension and the other spouse didn’t work. When there are retirement assets such as pensions, 401(k)s, or 403(b)s, which accumulated during the course of a marriage, it is necessary to obtain a Qualified Domestic Relations Order (hereinafter referred to as a “QDRO”). The purpose of a QDRO is to provide the administrators of the retirement asset with a breakdown as to how the benefits shall be paid between the employee and the non-employee spouse. QDROs also eliminate, minimize and/or distribute, the taxes that are to be paid between the parties when the deferred compensation assets are received.

QDROs

QDROs are very complicated court orders. The process to obtain a QDRO usually involves providing a pension analysis firm or actuarial firm with all of the necessary financial information related to the pension or deferred compensation plan. These firms analyze the portion of the asset accumulated during the marriage and the portion accumulated prior to the marriage. After clarifying this information, they draft the QDRO and forward it to the attorneys for the respective parties. The attorneys thereafter check the QDRO to make sure it is accurate and submit the QDRO to the judge handling the divorce for his/her signature. After the QDRO is executed by the judge, it is served by the attorneys on the administrators of the retirement accounts referred to in the QDRO. QDROs are important to see to it that the parties to a divorce obtain the retirement benefits they are entitled to. These benefits will become very important down the road when they will help pay for living expenses during the respective party’s retirement.father's advocate

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Change of Circumstances Necessary for Court to Change Custody

October 16, 2013 By

fathers rights lawyerIn a case in Westchester Family Court decided in August 2013, Judicial Hearing Officer Howard Spitz dealt with competing applications by both the mother and the father to modify a So Ordered Stipulation of Settlement granting physical custody to a child’s mother. Both the father and the mother filed petitions with the Family Court seeking to have custody changed to sole custody for them.

Forensic Evaluator Appointed

The Court ordered an independent forensic evaluator be appointed. The evaluator was ordered to write a report concerning the competing custody petitions. The report of the forensic evaluator called the mother a “restrictive gate keeper.” The report by the forensic evaluator recommended the court grant the father sole custody.

The attorney for the mother hired an independent expert to provide his own forensic report. The expert hired by the mother’s counsel, testified there were deficiencies and major flaws in the report of the court appointed evaluator. Judicial Hearing Officer Spitz found there were “errors of omission by the court appointed independent forensic evaluator.”

Failure to Prove Change of Circumstances

Judicial Hearing Officer Spitz in his decision stated neither the mother nor the father were able to establish a sufficient change in circumstances to warrant a change or modification of the custody arrangement worked out in the 2008 Stipulation of Settlement.

Judicial Hearing Officer Spitz’s decision found the child was well adjusted, didn’t have anxiety, and was a good student. His decision stated giving one parent all decision making authority and awarding that parent sole custody was not in the child’s best interest. Both the father’s and the mother’s petitions were denied. The court did change decision making authority from the mother to the father concerning all issues involving education and financial matters.advocate for fathers

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Center for Urban Families in Baltimore Helps Fathers

October 11, 2013 By

fathers rights lawyerBaltimore has a program run by the Center for Urban Families designed to help fathers reestablish relationships with their children. The Center helps fathers find jobs as part of their programs. Since its inception, hundreds of fathers working with the counselors in this program have learned to become more responsible parents and reestablish relationships with children whom they had abandoned.

Joe Jones, the Chief Executive Officer and founder of the program, recently stated “what we want to do is get these people above ground and back into the mainstream.” In addition to helping fathers find jobs, the Center takes action to end what Joe Jones refers to as “the cycle of father absence.” The Center seeks to break the cycle of fathers not being responsible for their children.

Children Raised Without Fathers

In 2012, the American Community Survey which was undertaken by the United States Census Bureau showed approximately 19 million children across the United States live in homes without a father.

Many men who come into the Center grew up in homes without fathers. Studies show children who are raised without fathers have a greater likelihood of parenting children during their teens. In addition, children raised without fathers have higher instances of drug abuse and being involved in criminal activity, pursuant to the National Father Initiative. It is the goal of the Center’s Responsible Fatherhood Program to provide men the support system and the basic tools they need to become responsible parents for their children. The program teaches fathers a variety of parenting skills including how to be financially responsible for their children.

About the Founder – Joe Jones

Joe Jones’ father left when he was 9 years old. Jones became a drug addict. He spent more than 17 years taking drugs, selling drugs and committing crimes to support his drug habit. When Jones was 21 years old he had a son. He took no responsibility for the child. In 1986, Jones was convicted of a variety of drug related criminal offenses. He was placed in a residential rehabilitation program. After completing the program, Jones went to Baltimore City Community College and obtained an Associate’s Degree. He worked for a series of non-profit organizations in Baltimore. During this time he realized there were no programs to help fathers. In 1992, he founded the Men’s Service Program at the Baltimore Department of Health. Seven years later he founded his own non-profit organization, The Center for Urban Families. He took this action because he felt he needed to give something back to the community for helping him restart his life. Jones claims to become a better father, you need to become a better man!

help for fathers

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Fast Track in Nassau County Family Court for Reuniting Parents and Children

October 4, 2013 By

father's rights attorneysNassau County has a new program to reunite children who have been taken away from their parents. This new program was set up by Nassau County Family Court Supervising Judge, Edmond Dane. The program is specifically designed to reunite parents with children under the age of 5. The fast track program is called “Babies Can’t Wait.”

Babies Can’t Wait

The program has been set up in conjunction with the Nassau Family Court, the Nassau County Department of Social Services and Adelphi University’s Institute for Parenting. Adelphi’s parenting institute is a private organization that is designed to promote relationships between children and their parents.

The program is designed to reduce risk, in cases involving either child abuse or child neglect, that children will be harmed. It tries to establish a secure caregiver for infants. There is a preference in the program for biological parents.

The program uses a team approach. The team is comprised of assigned attorneys, family members, an infant mental health specialist from Adelphi, a court facilitator, a deputy County Attorney, and foster care workers who will meet monthly before Judge Dane.

Judge Dane has stated he hopes the new program will be successful in reducing terminations of parental rights. The program also seeks to keep children under the age of 5 out of foster care.

Judge Dane has stated “when a child is taken from a parent, regardless of age, there is trauma.” He further stated “separation affects bonding and attachment especially with babies.” The program is designed to engage parents from the beginning and monitor their progress more often. It is the intent of the program to speed negotiations and result in quicker resolution of infant related cases.

Adelphi University

Adelphi University is providing joint therapy for parents and children. These therapy sessions focus on interaction and care of the children. The therapy sessions allow for additional visitation between the children and the parent.

The Prior Social Service Program Involving Removed Children in Nassau County

Without this program, when the Department of Social Services removes a child from a home, the parent or the child’s guardian has to go to the Family Court and file a petition for a hearing. The Judge then makes a determination at the time of the hearing whether the child faces an imminent danger. If the judge determines that the child faces an imminent danger, the child is not allowed to go home.

The case is then adjourned and a Fact Finding Hearing is held to determine if the child has been abused or neglected. In the event there is a finding of either child abuse or child neglect by the judge an additional hearing called a Dispositional Hearing is held. A Dispositional Hearing can be equated to a sentencing hearing in a criminal case. As a result of these hearings, an investigation is initiated by the Department of Social Services. This investigation takes a number of months and sometimes as long as a year.

Permanency Hearing

After the investigation a Permanency Hearing is held. The purpose of this hearing is to determine long term what shall happen to the child. Should the child be given back to the mother? Should the mother or father’s parental rights be terminated? Should the child be given to a guardian?

Babies Can’t Wait Program

Under Judge Dane’s Babies Can’t Wait program a Fact Finding Hearing is finished in as little as a month and a half. The Permanency Solution for the family would be decided within a year. Judge Dane claims “the longer you let a trial linger the less your chances of success. We want to make sure the focus is on the services rather than the abuse allegation.”

Judge Dane takes the position if the parents deserve it, he wants to give them an opportunity to improve the situation and get back into a relationship with their children.

Hooray for Judge Dane!father's rights assistance

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Grandparents’ Control Over Visitation Upheld

October 2, 2013 By

father's rights lawyerA proceeding was brought in Nassau County Supreme Court by Steven Libin. He requested the New York Court relinquish control over custody and visitation rights pursuant to a stipulation, to the Courts in Israel. Acting Supreme Court Judge Hope Zimmerman ruled against him. He appealed to the Appellate Division, Second Department, an appeals court in New York. The Appeals Court found Judge Zimmerman, “properly concluded that [her court] retained exclusive continuing jurisdiction over the stipulation as modified to reflect the child’s new residence in Israel.”

History of the Case

The child was born in February 2008. At the time, Libin and his wife, Diana, were residing in Israel. Diana died shortly after childbirth. Libin and the wife’s parents entered into an agreement in Nassau County wherein the wife’s parents, Katerina and Alexander Berkovitch, were given temporary custody of the child. Libin thereafter brought a proceeding in Nassau County and asked for sole custody and requested the prior stipulation with the grandparents be nullified.

Child in Israel but Case Stays in New York

In October 2008, a stipulation was entered into between Libin and the grandparents which gave Libin custody and the grandparents visitation rights. The stipulation was entered into at a time when Libin was residing in Israel. The stipulation stated the Supreme Court (in Nassau County) “shall retain exclusive jurisdiction over this matter for the purpose of enforcing or modifying or interpreting the terms of this agreement.”

The child lived for three years with Libin’s parents on Long Island. The paternal grandparents visited regularly.

In 2011, the maternal grandparents found out Libin had taken the child to Israel. At that time, Libin sought to have the jurisdiction over this proceeding transferred from the Supreme Court in Nassau County to courts in Israel. The court’s decision stated even though Libin planned on living in Israel, the signing of the stipulation giving jurisdiction to the New York State Court was still valid.

Conclusion

This is a case where the grandparents’ rights were upheld.helping grandparents

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Internet Downloaded Separation Agreement Found Valid

September 30, 2013 By

father's rights lawyerIn a recent case before Justice Leonard Steinman sitting in the Supreme Court Divorce Part in Nassau County, a husband had filed a divorce action against his wife. In this proceeding, he sought to incorporate by reference a separation agreement into the judgement of divorce. The wife argued the agreement should not be allowed to be incorporated into the judgement of divorce. She claimed she was induced by fraud into signing the agreement.

A motion was made to determine whether the agreement was valid. The Court found the agreement was drafted by the wife. She found the agreement on an internet website. After downloading and printing the agreement she presented it to the husband, he executed it.
The agreement had a waiver of spousal maintenance. It also stated there would be “no demand for child support payments”. The agreement required the parties sell the marital home and equally divide the proceeds. Pursuant to the terms of the agreement, the parties opted out of exchanging financial net worth statements. Neither the husband nor the wife were represented by an attorney during the course of the negotiation and execution of the agreement. However, the parties did properly execute the agreement before a notary public and they filed it with the County Clerk of Nassau County.

The Agreement Terms Were Followed

The Court found that the parties had followed the terms of the agreement after its execution. The Court found the parties had lived separate lives. They did not share a bedroom together. They also filed separate tax returns.

The Court found the separation agreement executed by the wife was not unfair or inequitable. The judge ruled the wife’s claims that the parties did not intend to be bound by the agreement were undercut by “its unambiguous terms.” He made this decision even though the wife waived spousal maintenance in the agreement.

It should be noted, the husband acknowledged that the child support provision does not comply with the Child Support Standards Act. However, he agreed that this could be severed from the agreement and the rest of the agreement could be enforced.

Justice Steinman found the agreement to be valid and incorporated it into the judgement of divorce.

Conclusion

In this case, the wife wanted to have her cake and to eat it too. She drafts an agreement and then decides later on she wants more. Justice Steinman found she was not entitled to a second bite at the apple. This is a case where men’s rights were protected.advocate for father's rights

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Divorce Case: Equitable Distribution After Death

September 27, 2013 By

father's rights attorneysRecently, Supreme Court Justice Stacey Bennett sitting in a Matrimonial Part in Nassau County made a decision in an unusual case. A husband started a divorce lawsuit. He was granted a judgment of divorce in this proceeding. Both parties after the divorce were to submit post trial briefs to the court regarding all outstanding economic issues. Then, the husband committed suicide. The wife claimed suicide didn’t stop the divorce action from going forward because the judgement had already been rendered.

Husband Tries to Deny Wife Equitable Distribution

The husband, a physician, in an attempt to deny his wife and children equitable distribution of millions of dollars in assets and life insurance that he possessed, decided to kill himself. At the time the husband committed suicide he was aware he had advanced brain cancer and did not have a significant time to live. Prior to committing suicide the husband changed the beneficiaries on his $2,000,000 life insurance policy and $3,000,000 in his investment accounts. In violation of the court’s order he changed the beneficiaries from his wife and their son and named his mother, who is the executrix of his estate, and his sister as beneficiaries. The suicide took place after each of the parties had rested their presentation to the court but before a final judgment had been entered.

The legal question presented was whether the suicide abated the divorce (stopped it from moving forward) and prevented the Supreme Court Judge handling the case from making a decision on equitable distribution of the assets.

Judge Bennett held “suicide, like murder, is an intentional act and the husband’s estate should not be able to benefit from it by seeking an equitable remedy.” Judge Bennett went on to write in her decision “consequently in the interest of justice, equity and the efficiency of the Court system, this Court finds the right to equitable distribution in this action survives the husband’s suicidal death.”

The husband’s attorney claimed the case needed to be dismissed because the husband was dead. The dismissal of the case after one of the parties dies is called abatement. However, Justice Stacey Bennett said this case didn’t abate because the divorce had been granted already. Justice Bennett’s decision was that she still had jurisdiction to finalize all the remaining economic and financial issues in this divorce proceeding even though the husband died before equitable distribution took place. Justice Bennett took the position the entry of the divorce itself was merely a ministerial act. The case was to continue even after the husband’s death on the issue of equitable distribution.

Novel Legal Question Presented

The legal question presented to Judge Bennett was a novel question of whether an intentional suicide stops a divorce action and whether the issues that were not resolved prior to the death involving equitable distribution survive the death. Judge Bennett wrote, “here, the husband committed suicide and thus those who now represent his interests come to the court with unclean hands”. Judge Bennett’s position was the suicide was specifically designed to prevent the wife and child from receiving the decedent’s assets. Judge Bennett’s decision said the husband’s committing suicide “demonstrated a nefarious pattern of conduct on part of the husband designed to deprive his wife and children of any assets.”father's rights advocate

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Order of Protection Thrown Out

September 20, 2013 By

father's rights attorneyThe Appellate Division of the Second Department (an appeals court) in the State of New York recently vacated an order of protection obtained by a wife against her husband. The court ruled that the alleged disorderly conduct which took place inside the parties’ home did not sufficiently prove that the husband engaged in disorderly conduct which was intended to cause, or recklessly create, a risk of causing public inconvenience, annoyance or alarm.

The Story

Mr. and Mrs. Cassie were not getting along. Mrs. Cassie decided one day to pack up her husband’s bags and change the locks to the house. Mr. Cassie came home from work and found he could not get into his house. At some point one of his children let him in. Mr. and Mrs. Cassie had two daughters aged 16 and 17.

An argument ensued on the second floor of the parties’ home while the children were watching TV. Mrs. Cassie called the police alleging her husband had assaulted her. Mr. Cassie denied that he had assaulted her. He voluntarily left the marital residence.

Mrs. Cassie went to the Brooklyn Family Court. She obtained an Order of Protection based on a decision by Judge Anthony Cannataro that determined that Mr. Cassie had committed the family offense of disorderly conduct.

Mr. Cassie appealed.

The Appeal

In his appeal, Mr. Cassie claimed his wife did not make out a prima facie case for disorderly conduct. The Appellate Court agreed. The decision of the Appellate Division was that the disorderly conduct had to have some sort of public inconvenience, annoyance or alarm. Since this event took place in the family’s home, there was no reckless disregard that might cause public harm. The court found Mrs. Cassie did not prove her case.

The Appellate Court overruled the family court decision and allowed Mr. Cassie back into his house.

About the Author

assistance for fathersElliot Schlissel, Esq. is a father’s rights attorney practicing throughout the metropolitan New York area.

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