Father Denied A Downward Modification Of Child Support And Spousal Maintenance Due To A Settlement Agreement Clause

November 28, 2012 By

father's rights lawyerJustice John Colanglo, sitting in a Supreme Court part in Westchester County, recently turned down an application for a downward modification of spousal maintenance and child support. In the case presented to him, the father had moved in a post-judgment matrimonial action to reduce his payments of $250,000 in spousal maintenance and $140,000 in child support per year.

The father took the position the terms of the stipulation of settlement allowed him to make an application for the modification of child support and spousal maintenance payments in the event there was a substantial and adverse change in his financial circumstances.

Fathers Salary Takes A Huge Cut

The father, in this case, was earning $3.3 million per year at the time he entered into the stipulation of settlement. However, his financial circumstances had dramatically changed. In 2011, he only made $250,000. This was through no fault of his. How can he pay $250,000 a year in spousal maintenance payments and a $140,000 a year in child support payments when his gross income was only $250,000 before taking out Federal taxes, New York State taxes, FICA, workman’s compensation, New York State disability and all the other deductions that come out of one’s salary?

The father argued that he was entitled to apply for a downward modification in his support payments. Unfortunately, the court disagreed. The court took the position the agreement only provided a trigger permitting the father to apply for a payment reduction. The court’s position was the agreement did not provide a specific standard which would require a reduction in and support payments.

 Father Has 5.5 Million Dollars In Liquid Assets

The court, in its decision, also noted the father had $5.5 million in liquid assets. Therefore, he would be in the position to continue to make the payments pursuant to the original stipulation of settlement. Even if the payments were “somewhat burdensome it would not create an ‘extreme hardship’. Extreme hardship is the standard for the reduction of child support and spousal maintenance payments in New York State.”  Based on the facts the court did not find there to be an extreme hardship for downward modification of child support and spousal maintenance. The application was denied.father's rights advocate

Filed Under: Fathers Rights

Wife Refuses To Comply with Court Ordered Visitation And Court Holds Her In Civil Contempt

November 27, 2012 By

father's rights attorneysJustice Rachel Adams sitting in the Supreme Court, Divorce part, in Kings County recently found a woman in contempt for failure to comply court orders concerning visitation. The husband in this case had requested the court hold his wife in contempt for interfering with his visitation. She was preventing him from seeing his two year old twins. His pleadings stated that the wife had been involved in detrimental interference with the relationship with his children.

Justice Adams, in her decision, noted that despite knowledge of her obligations under court orders, the wife felt entitled to impose non-court ordered restrictions on the father with regard to his visitation with the children. During the course of the proceedings, the wife made a unilateral decision to move to Wisconsin. This prevented the father from seeing his twins on a regular basis.

 In addition to finding the wife in contempt, Justice Adams stated, in her opinion, her interference with the father’s access to the twins could impact other aspects of her pending divorce case. This includes the issue of custody. Justice Adams’ ordered for the wife to return to New York with the children and warned her that her continued failure to abide by court orders may result in her being incarcerated.

 Conclusion

This was a victory for upholding a father’s rights to have a relationship with his children.  This Judge took courageous action to enforce the law in New York requiring the custodial parent to promote visitation with the non-custodial parent.assistance for fathers

Filed Under: Fathers Rights

Custody Proceedings – Cross Examination Of Forensic Experts

October 5, 2012 By

father's rights lawyersIn custody proceedings, in the Family Courts and Supreme Courts of New York State, the Judge will often order the parties, the child or children and the significant others of the parties be interviewed by forensic experts. Thereafter, the forensic expert usually issues a written report. Should the case go to trial, the forensic expert will testify at trial with regard to the material in his or her report.

Neutral Forensic Experts

            The forensic reports of neutral experts are submitted to the Court. The attorneys for the parties are entitled to review the reports. In most instances the attorneys are not allowed to provide a copy of the report to their clients. The attorneys usually take notes as to what is in the report and utilize their notes with regard to the examination and cross examination of the forensic expert at the time of trial.

Forensic Expert Reports And Individuals Representing Themselves

            What happens if the individual in the custody dispute represents himself or herself?   In these situations shouldn’t the individual representing him or herself be given access to the report so he or she will be on equal standing as the attorney for the other party with regard to the testimony of the expert at the trial?

In a recent case before an Appeals Court (the Appellate division of the First Department) entitled Sonbuchner v. Sonbuchner, the issue of individuals representing themselves and having access to forensic expert reports was dealt with. The case involved the mother trying to relocate her child from New York to North Carolina. The father objected to the relocation claiming it would have a negative impact on his parenting time with the child. A forensic report was prepared. The father sought to review the report. His request was denied.  The case went to trial and the mother won.

The father appealed claiming that he should have been given access to the forensic report which the Court accepted into evidence.  The Appellate Division found the trial court had made an error in not allowing the father to review his report. However, they found this was “harmless error.” How could this be harmless error?

Fairness Requires Equal Access to Forensic Expert Reports

            Litigants should have equal access to all material that impacts their case. In this case, the father representing himself was forced to try his case at a disadvantage. The other attorney was fully cognizant of the material in the expert report prior to it being presented into evidence. He was not.

Due Process Denied

            Justice David Saxe, who had a dissenting opinion on this case, stated “expert reports by mental health professionals are an important element at trial of custody litigation. The procedure typically employed by the New York trial courts in recent years is to provide a copy of the expert’s report to the attorneys, with the direction that the copies are not to be provided to their clients or others outside the litigation team.”  The Judge went on to write in the event a litigant is self-represented, a copy of the report should be maintained at the Courthouse and provided to the litigant. The dissenting opinion was correct and the majority opinion was wrong.

About the Attorney

            Elliot S. Schlissel is a fathers’ rights lawyer representing fathers in child custody, visitation, child support, relocation cases and all other issues involving father’s parental rights. He has been practicing law for more than 34 years.divorce assistance for fathers

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Challenging Paternity

October 1, 2012 By

father's rights lawyerIn a case before Judge Lubow, in the Queen’s Family Court, a father brought a proceeding to vacate an acknowledgment of paternity. He claimed he had been fraudulently induced into signing the acknowledgment of paternity.  His papers stated, he relied on the mother’s contention he was the biological father. She had advised him she had been separated from her husband for a substantial period of time, and she didn’t  have sex with anyone else.

DNA Paternity Testing

            The father now claims DNA testing has shown he is not the father. The Court, in its ruling, stated that there is a presumption of legitimacy regarding a child born during the marriage. The presumption is the child is a biological product of the marriage. This presumption, the Court stated, should only be rebutted by “clear and convincing evidence tending to exclude the husband as the father or otherwise disproving legitimacy.”

Mistake Of Fact Or Fraud

            In this case, the Court found there had been a detrimental reliance on a mistake of fact or fraud. The Court found it was not in the child’s best interest to leave this question up in the air. The court ordered official DNA testing. The court stated, if it found the biological father was the woman’s husband the acknowledgment of paternity would be stricken. However, if it found that he was the biological father he would still be able to petition for visitation with the child.paternity assistance for fathers

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Mother’s Relocation Of Children Denied

September 27, 2012 By

father's rights attorneyIn a case in Monroe County, Supreme Court, Justice Dollinger took into consideration the preference of two boys, 11 and 14 years of age, in making a decision to allow them to stay in Rochester with their father. Their mother had brought an application to the Court to relocate the children to Washington DC. She had recently received a new position as an assistant dean at Howard University. The Judge, in his decision, stated “that consistency of their preference and the sound basis for it – it is undisputed they have friends, opportunity, activities, and substantial academic success in Rochester – requires that this Court ascribe some significant weight to their choice.”

Court Didn’t Want To Move Children From A Strong Environment

The Judge in his opinion also stated “it is undisputed the sons are thriving in Monroe County.” Both excel in academic performance; both are heavily involved in activities from Lego robotics, to boy scouts, music, religious instruction and other activities. Neither parent could cite a single example in which the two sons have not achieved substantial success in their home community.  Both boys had expressed their wishes to remain in Rochester. The Court found both the father and mother were excellent parents.  The Court took into consideration the relationship between both the custodial and non-custodial parent.  The Court looked at the degree to which the children’s lives might be enhanced by the move. The Court also took into consideration preserving the custodial relationship between the mother and the children concerning the move. The mother argued for continuing her custodial relationship with the children and that the move to Washington would provide them with cultural and academic opportunities.

Father’s Rights Protected

The father promised to keep the sons involved in the activities in the locality in Rochester, attend the same church and maintain a relationship with their friends. The court, in its decision, stated “in this Court’s judgment, the relocation to Washington, DC would impact the quality of the visitation as well as the casual, easygoing quality described by the father as the interaction with his sons.”  The Judge further wrote “if the father were required to visit his sons in Washington, there is no evidence as to how he would achieve reasonable visitation while staying in a hotel, for example. Based on these factors the quantity and quality of the father’s visitation will be substantially impacted by the relocation.”

It should be noted the sons, prior to the relocation, lived with the mother and the father had visitation on alternative weekends and two evenings a week.

This is a victory for fathers’ rights advocates!father's rights advocates on long island

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Custody Modified: Father Given Custody

September 24, 2012 By

father's rights attorneysIn a recent case, Judge Stacy Bennett, a Family Court Judge now sitting in the Supreme Court in Nassau County granted a father a modification of a previous custody order.  The modification granted him the physical custody of his daughter.

In this case the father claimed the mother had been engaged in “vicious behavior” which included repeated false accusations of sexual abuse by the father. These accusations were unfounded. In spite of the fact that they were unfounded they resulted in an eventual alienation of the parties’ daughter.

On three previous occasions the Court had dismissed family offense petitions brought by the mother alleging physical sexual abuse by the father.  The Court had also vacated temporary orders of protection in this situation.  A Court appointed forensic evaluator, in his report, recommended custody be transferred from the mother to the father. Judge Stacy Bennett agreed with the forensic evaluators findings. She felt the evidence established the mother would continue to make the reports of sexual abuse. She found the mother was “unwilling and unable to promote a healthy relationship between the father and the child. This put the child at risk of emotional damage.”

Best Interest of Children To Give Father Custody

            The Court found the best interest of the child would be to modify the previous custody order and change custody from the mother to the father. The Judge found that the mother was unfit to continue to act as her daughter’s custodial parent.

Guilty Until Proven Innocent

            Fathers, for decades, have found themselves guilty until proven innocent of false charges of child abuse. This decision is a step in the right direction!

About the Author’s Law Firm

            The Law Offices of Schlissel DeCorpo
have represented thousands of fathers in child custody and visitation proceedings throughout the Metropolitan, New York area during the last 45 years.  We offer free consultations and our phones are monitored 24/7.custody and child support assistance for fathers

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Father, Active In The Military, Granted Modification Of Custody Allowing Him To Have Custody

August 2, 2012 By

father's rights attorneyIn a decision in the Family Court of Suffolk County, Judge Teresa Bryant Whelan, in October of 2011, granted a father who was active in the military, residing in Virginia, custody of his children.  Judge Whelen, in her opinion, stated that the parties had agreed to separation and joint legal custody.  Initially, the mother was the residential custodial parent.

In his petition to modify the custody application, the father alleged the mother had stopped taking her mental health medication.  It also alleged she abused drugs and alcohol.  As a result of the mothers improper conduct her children were removed from her care.  The maternal grandmother was the temporary custodial parent.

Unfortunately, the grandmother worked long hours and had difficulty caring for the children.  The Court found that the father was the more fit parent and it was in the children’s best interest that custody be changed and he be given residential custody.  The Court indicated in its decision even though the father was an active member of the United States Air force and subject to possible relocation, it was still in the children’s best interest that custody be awarded to him.

Conclusion

            This case is an example of the continuing development of a father’s right to have custody of his children in New York.family court advocate for fathers

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