The father brought an application to the Family Court requesting he receive joint custody of the child. The Family Court found the mother had intentionally violated the prior custody order.

On appeal, the court found the mother had relocated to Massachusetts without providing the father with an address, telephone number or any other means to get in touch with the child. During the course of the hearing, the mother also conceded she had been intoxicated in the presence of the child, which was a violation of the prior custody order.

In the end, the court based its opinion on the mother’s lack of acting appropriately in the presence of the child because of  alcohol abuse and other mental health issues. The court found the mother to be an unfit custodial parent.

New York has had a no fault divorce law for approximately 20 months. During this period of time, divorce rates have increased throughout New York State between 6 and a 9%. This is a similar increase other states experienced when they adopted no fault divorce law.

Irreconcilable Differences

To obtain a divorce in New York, you no longer have to allege cruel and inhuman treatment, adultery, abandonment or living separate and apart under a written agreement of separation for a period of more than one year. All you have to allege is you have irreconcilable differences with your spouse for a period in excess of six months. You don’t even have to explain what the irreconcilable differences are. Not getting along for six months is enough to get you divorced in New York State!

So now you’re involved in a divorce and you have alleged irreconcilable differences. Issues such as equitable division of property, custody of children, child support, spousal maintenance (alimony), health Insurance and other issues still must be resolved.

 Negotiate Your Divorce

            The best way to deal with a divorce is to negotiate all the issues out of court and enter into a written agreement concerning these issues. This will most often eliminate the need for either of the parties to the divorce to actually appear in court. A trial is not necessary under the new No Fault divorce law.

 Spousal Maintenance

            At the time the No Fault divorce law was passed, the legislation in New York passed a method for calculating temporary spousal maintenance (alimony). This is the amount of money the party to the marriage with the superior earning power pays to the party of the marriage with lesser earning power. Unfortunately, the new statute, instead of simplifying matters, made it more complicated and has resulted in many unfair court decisions. The temporary spousal maintenance statute doesn’t deal with who has to pay the household bills such as mortgage payments, electricity payments, fuel oil payments and cellphone payments. They are not dealt with in this new temporary maintenance statute. It is expected that in 2013, the legislature will consider amendments, recommendations and modifications to this temporary maintenance statute.

If you find yourself in a situation wherein the other parent is violating their obligations to cooperate concerning visitation you should seek out an experienced aggressive attorney to protect your rights. For more than 45 years, Elliott S. Schlissel, Esq. and his dedicated experienced associates have been assisting parents in their quest to see to it that their visitation and custody rights are protected. With more than 100 years of combined a legal experience, the attorneys at the Law Offices of Schlissel DeCorpo litigate custody and visitation issues throughout the five boroughs of the City of New York, Nassau and Suffolk counties on Long Island as well as Westchester County. The law firm offers a free initial consultation regarding all matrimonial and family law issues.

Supreme Court Justice, Pam Jackman Brown, sitting in Queens County Supreme Court recently dealt with a case involving conflicting stories concerning the respective parents’ incomes. The father had brought a divorce proceeding. The wife asked for spousal maintenance and child support. She alleged that her husband’s annual income was $350,000 a year. The father stated he only made $39,000 the year. The wife also claimed that she had not worked since 2010. Her credibility was taken into question when it was disclosed that her 2010 tax return showed that she earned $39,000 a year. Judge Pam Jackman Brown found that their respective statements concerning their earnings to be incredulous. She found imputed income to the father of approximately $170,000. She based this on the fact that he had $14,000 a month in expenses. The court noted that although the basic child support obligation would normally be $26,000, due to the high standard of living that the parties had during the marriage she awarded the wife $42,000 in child support.

Instead of giving the wife a spousal maintenance award pendente lite (during the pendency on the marriage), the court declined to give the wife maintenance because the husband had agreed to pay all the carrying charges to the marital residence. The court held that the carrying charges of the marital residence exceeded the presumptive temporary maintenance award.

In a recent case before the Appellate Division (an appeals court) in the Third Department, a father, Michael Weber, had sole custody of his child. The mother, Corey Weber, had supervised visitation. The father brought an application to relocate to Illinois. The court granted his application. He had to pay the cost of transporting the child to New York for visitation.

The court, in its decision, took into consideration that this would create a significant distance between the child and the mother and the mother’s extended family. However, in Illinois resided the paternal grandmother and the aunt of the child.

 In this case, the mother had suffered from a “generalized anxiety disorder” and alcohol abuse. This is the reason why the mother only had supervised visitation. Part of the reason for the move was the father had a new position and a reasonable salary that involved employment stability. The court also took into consideration the fact that the father’s extended family lived in the Illinois area.

Appeals Court Affirms Lower Court’s Decision

The Appeals Court affirmed the lower court’s decision to allow the father to relocate. The court’s decision indicated that the move was within the child’s best interest.

 Best Interests of the Children

The standard in New York as to who should be the custodial parent of a child or children does not come down to a tug of war between the mother and father. It is the court’s job to analyze the family situation and determine which parent having custody is in the best interest of the children.  In many situations, both parents have strengths and weaknesses with regard to having custody of the children.  In these situations, the attorneys often try to work out amicable resolutions of the child custody dispute by giving both parents joint custody.  However, it should be noted even in joint custody situations, one parent has to be designated as the residential custodial parent for school district purposes.

Aggressive Legal Representation

Representing fathers in custody disputes as indicated earlier can be an uphill battle.  For more than 45 years the Law Offices of Schlissel DeCorpo have been fighting for fathers’ rights regarding custody and child visitation issues in the Family Courts and the Supreme Courts in the Metropolitan New York area. The attorneys at the Law Offices of Schlissel DeCorpo have more than 100 years of combine legal experience dealing with the complicated and emotionally charged issues involving which parent gets custody of their children.  Contact our law office for a free consultation.

In a case before Judge Bernard Chenj, in the Family Court, Suffolk County, a mother recently sought to relocate to Florida with the parties’ two young children. She had made a previous application to the court before a different Family Court Judge. That application for the same relocation relief was denied.

Children’s Best Interest 

The mother requested to relocate to be with her boyfriend. In her petition, she claimed it was in the children’s best interest that they be relocated to Florida. The court, after examining the mother’s claim, came to a conclusion that the mother did not show an “unanticipated change in circumstances” because her employment situation in Florida was inferior to her current employment in New York.  The court “had serious reservations about to the mother’s true reason for moving to Florida.”

The court also held that there were no educational opportunities the children would receive by moving to Florida. The court made a ruling, based on the preponderance of the evidence, that it would not be in the children’s best interest to move to Florida. This would have an impact by destroying the father’s relationship with the children. Due to the parties’ financial circumstances, a travel program between New York and Florida concerning the children’s visitation would not work. Therefore, the court denied if the mother’s request to relocate the children to Florida.

In a recent case before the Third Department, Appellate Division, a mother, named Barnes, brought an appeal from an order of the Family Court which gave the father, King, primary residential custody of their child. Initially, Barnes had physical custody of the child. However, she had housing problems and she asked the father, King, to take the child.

Eventually, the mother found appropriate housing. However, the father was not willing to return custody to the mother.

 Mother Petitions Family Court for Custody

The mother brought an application to the Family Court requesting that custody of the parties’ child be returned to her. At the same time, she brought a petition claiming the father had violated her visitation rights. The matter was set for a hearing in the Family Court. The Family Court granted the couple joint custody, however, physical custody was given to the father. In its decision, the court stated, “although the father had violated the mother’s visitation rights it would not impose sanctions.”

On appeal, the Third Department did take note that no evidence was presented at the time of the hearing with regard to the home environment in the father’s home. The court also took into consideration the fact that the father did not foster a relationship between the mother and the child. While the mother had custody, the mother did cooperate with the father in regard to his visitation rights. The court’s decision stated that the mother had produced documentation that she had found suitable housing. The Appellate Court, upon reversing the custody order, sent to the matter back to the Family Court to establish a visitation schedule for the father.

 Conclusion

If you are a father and get temporary custody, you should cooperate with the mother on visitation. A parent who refuses to cooperate concerning the other parent’s visitation can be sanctioned by the court.

 Father Never Consented to Relocation

The father testified in court he did not consent to the relocation. The Court, in its decision, stated the mother had attempted to initially mislead the court by hiding the fact that she had relocated. However, the court found that the child’s best interest would be served by granting joint legal custody to the parents and residential physical custody to the mother.

The court allowed the mother to continue to maintain her residence in Hazlet, New Jersey. The Court held this was subject to a relocation clause that prevents her from moving any further from the father then she currently is now. The Court found the child had acclimated to living in New Jersey. The child was attending school in New Jersey and had developed new friends in New Jersey. The Court also found the child was involved in a variety of after school activities in New Jersey.

The Court, in its decision, indicated had custody been given to the father, it was unlikely he would have enrolled the child in similar activities in Rockland County to replace the ones the child was enjoying while living in New Jersey.

 Conclusion: Mother Allowed To Stay In New Jersey With The Child

 In this case, the best interest of the child trumped the father’s right to maintain a close relationship with his child.

It is in the children’s best interest to have a relationship with both of their parents. A divorce situation deals with the parents breaking up with each other. When discussing issues involving a divorce with children, each parent should strive to tell the children that “both mommy and daddy love you.” Neither parent should speak negatively about the other parent in front of the children. Even in the difficult situations, both parents should do their best to hide their feelings of anger and resentment concerning their spouse from their children. Children are like sponges; they absorbed their parents feelings and sometimes make them their own.

Therapy

For some children, seeing a therapist during this difficult time of the breakup of the marriage can be helpful in getting the children acclimated to the new life situation. If one parent is moving out of the marital residence, a discussion should be had with the children concerning the schedule in which they will spend time with their father and with their mother. It can be explained to the children this will not impact on their social events, friends and where are they go to school. It should be explained to the children although their parents may not be living together, neither of them will ever stop loving them.  It should be crystal clear to the children although their mother and father are separating from each other they are not separating themselves from the children.

 Keep the Well Being of the Children in Mind

Some divorces can develop into an extremely acrimonious situation. There may be extensive litigation regarding custody, child support, visitation and distribution of marital property. However, the basic theme of “daddy and mommy are divorcing each other and the both of them love the children” should be maintained no matter how difficult the divorce case becomes.

Conclusion

Children can become the victims in a divorce case. Adults will move on with their lives but the children will always have the same father and mother. Both parents should consider their children’s best interest before their own in a divorce situation. They should strive to keep the children out of the litigation process and insulate them from the negative feelings that exist between their parents!