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Child Endangerment Conviction Set Aside

Man and child sitting in a hammock

A father appealed from a judgment that convicted him of attempted endangerment of the welfare of a child. The father and mother did not get along but they lived together. One day while they were at a park the father wanted to take the child home. The mother did not wish to go home with him. The mother claimed while both the father and the mother were holding their daughter’s hands, the father shoved the mother. While he was shoving the mother she claimed his hands hit her in the neck which caused her to lose her balance and fall.

The Trial

At the time of the trial it was ascertained the mother lost her balance and fell at a time when she was wearing high heels. The father took the position the mother was trying to strike him and he was simply blocking her from doing this with his hand. He argued through his counsel the evidence against him was not legally sufficient to establish he was guilty of attempted endangerment of the welfare of a child.

Conviction Set Aside on Appeal

He was initially convicted and thereafter appealed the decision. He argued in his appeal his daughter was not subject to observing “serious domestic violence.” The appeals court took into consideration there was no previous history of domestic violence between the parties. The incident was one incident, not many. The appeals court held although the father pushed the mother under all of the circumstances involved, his conviction for endangerment of the welfare of a child was against the weight of the evidence. The appeals court therefore vacated the prior conviction against the father of attempted child endangerment.

The Father Challenges Paternity – Court Denies Request for Paternity Testing

A childs hand in it's fathers hand

In a case before Supreme Court Justice Elisa Koenderman sitting in Queens County, Supreme Court, and a father had requested a paternity test and Justice Elisa Koenderman denied his request.

The Case

The case involves a husband and wife who were married in 2011. The wife gave birth to a son “LP” in 2012. A divorce action was initiated in 2015. However, at the time the divorce action was brought LP was living with the wife’s parents in China. This was pursuant to an agreement the parties had. Thereafter LP came back to the United States in 2016.

Husband Requests Visitation

After LP returns to the United States the father requests visitation with him; The mother grants his request and he starts seeing his son. Thereafter the father brought a proceeding before Justice Elisa Koenderman requesting an order from the Judge to have all parties’ paternity tested to determine whether he is really the father. The child’s mother and an attorney appointed to represent the child oppose the father’s application for paternity testing.

Presumption of Paternity

Justice Koenderman renders a decision against the father. She ruled that the presumption a child born during the marriage and the biological product of the marriage is “one of the strongest and the most persuasive known to the law.” She also brings up a theory called equitable estoppel.

Equitable Estoppel

Under equitable estoppel a person is prevented from asserting a claim which would prejudice another party. Here the Judge held the husband is equitably estopped from challenging the paternity of LP. He has previously represented himself to be LP’s parent. He has visited with LP. No evidence has been presented that the wife engaged in sexual relations with anyone else other than the father during the course of the marriage. In addition, the father continually presented himself as LP’s natural father in numerous ways. Judge Koenderman therefore ruled the father had not been able to rebut the presumption LP was a legitimate son and therefore his motion for an order allowing paternity testing was denied.

Conclusion

Fathers be careful. If you hold yourself out to be a child’s father the court can stop you from later demanding paternity testing to see if you are really the biological father.

Attorney Elliot SchlisselElliot S. Schlissel, Esq. is a father’s rights attorney who has for more than 3 decades has been representing fathers throughout the Metropolitan New York area on issues involving custody, visitation and child support.

Post Nuptial Agreement Set Aside: Even Though Husband’s Duress Claim Was Not Proven

A childs hand in fathers hand

A husband brought a proceeding to set aside a post nuptial agreement before Justice Jeffrey Goodstein in a Supreme Court divorce part in Nassau County, New York. He claimed the agreement should be set aside because he was fraudulently induced to execute it. He also argued he signed the agreement under duress and the terms of the agreement were unconscionable. He alleged in his moving papers that at the date the agreement was executed he was suffering from depression. In addition, his wife exerted duress upon him which caused him to sign this one-sided document. He also argued the terms of the agreement were overreaching and unconscionable. His moving papers alleged that he received only 12.3% of the marital assets. The wife who had an annual income of $2 million received 87.7% of all marital assets. He claimed this was so unfair that the agreement should be considered unconscionable and therefore set aside.

Duress Not Proven

Judge Goodstein found the husband’s claims of duress were not proven. He failed to submit substantial evidence to show his mental state was weakened to the point that he did not have free will to avoid executing the agreement. Judge Goodstein therefore denied setting aside the post nuptial agreement based on the husband’s duress claim.

Agreement Set Aside Anyway

Attorney Elliot Schlissel

However, Judge Goodstein found the wife out earned the husband as a practicing physician. He found she retained her medical practice and was not providing the husband with spousal maintenance. He set aside the agreement because the financial terms were so one-sided. Judge Goodstein rendered a decision regarding the agreement setting aside all of its financial terms.

Father’s Challenge to Imputed Income Granted

Father holding child

In a case before Judge Machelle Sweeting sitting in the Family Court of New York County, a father brought objections (an appeal) to a support magistrate’s finding he had imputed income. The father challenged the support magistrate’s decision. The mother had a petition for an upward modification of child support. At the time the petition was filed the father was unemployed. However the support magistrate found he had voluntarily left his position. The court therefore imputed the income to him that he would have received had he not left his job. The father sought to present testimony he did not voluntarily leave his job. However he was not allowed to present this testimony with regard to how he came to be unemployed.

The Family Court Judge’s Decision

Family Court Judge Machelle Sweeting found that there was no evidence submitted before the support magistrate that the father had taken action to intentionally reduce his earnings by leaving his job. Judge Sweeting found there must be a factual basis on the record for imputing income to a father. She stated there must be a determination made that the parent intentionally reduced earnings for the purpose of avoiding child support obligations. She held this can be imputed based on a litigant’s employment history and/or educational background. She found in this case a hearing would need to be held as to whether the father intentionally reduced his earnings and for recalculation, should it be reasonable based on the outcome of this hearing.

Conclusion

Attorney Elliot Schlissel

If you appear before a Support Magistrate and receive an unfair or incorrect decision your remedy is to bring an appeal.

FATHER’S CHILD SUPPORT PAYMENTS DECREASED

Man walking on beach while holding his son

An appeals court in Manhattan has recently reduced a child support award against the father. The appeals court, in its decision stated that the lawyer/father was not required to pay for private school “up to the cost of Trinity School in New York City,” as had been previously ordered by a trial court.

THE APPEALS COURT

The Appellate Division in it’s decision stated that the trial court “did not follow the precise requirements of the New York Child Support Standards Act by ordering Michael Devereaux to pay for the cost of private school education as well as “extracurricular activities, summer school, and weekend activities.” The Appellate Court found there was insufficient support in the record for payment.”

The appellate Court found although Mr. Devereaux stated his intention to give his child “the best of everything” when living with his wife, this was not a basis for an award above the basic child support amount. The appellate court went on to state: “there is no record that the child has any special needs or gifts” which would be the basis of Devereaux paying above the standard child support amount. The Court also stated that tuition at a private school such as Trinity could cost as much as $45,000 a year.

New York father's rights lawyer Elliot Schlissel

Elliot S. Schlissel is a father’s rights attorney representing fathers with regard to custody, support and visitation matters throughout the metropolitan New York area.

VIDEO: Parental Alienation Syndrome

Video: Who Gets the House When There Are Young Children?

In this video Elliot addresses the topic of who gets the house after a divorce when there are young children involved.

Wife Found to be in Contempt for Violating Court Order

Father on beach with child

In a case in Westchester County, a husband brought an Order to Show Cause seeking him temporary custody of his child and directing his wife to return from India with the child. The wife had moved to India with the parties’ child and had failed to appear in court in New York. There were two separate court dates where the wife was told to appear in court and produce the parties’ child. In each of these occasions, she had failed to appear even though she was fully aware of the court dates and her responsibilities in New York.

Father Awarded Sole Custody

A hearing was held and Justice Linda Christopher awarded the father sole custody of the parties’ child. In addition, the judge signed an order directing the wife to immediately return the child to her father in New York.

Wife Held in Contempt

The wife took the position she had initiated an action in India prior to the court proceeding being started in Westchester County, New York. Justice Christopher found the wife’s allegations were untrue. She found the wife brought the action in India after the husband filed his Order to Show Cause in New York. Justice Christopher also found the wife had failed to provide any valid reason for failing to comply with the unequivocal court orders to bring the child back to New York. She found the wife’s actions prejudiced the husband and therefore she found the wife to be in civil contempt. She ordered the wife to return to New York for the purpose of purging her contempt and to immediately return the parties’ daughter to the custody of the husband in New York.

Conclusion

Skipping the country with the child with the hope of getting a better decision in a far off land will not necessarily work. There is a Geneva Convention on child custody. Many countries in the world are parties to this convention. In this case, the wife’s attempt to virtually kidnap her daughter and deprive the father of the custody he was awarded twas unsuccessful.

Mother Relocates to Texas and Seeks to Take Son With Her: Her Application is Denied

Two Parents Fighting Over Child

In a case before Justice James Pagones sitting in a Supreme Court Matrimonial Part in Dutchess County, New York, a mother brought an application to modify a stipulation of settlement which gave the child’s father temporary custody of their son. She sought to relocate the child to Texas. The mother had been a nurse in New York and she had moved to Texas to become a state trooper. Unfortunately, she was turned down for the state trooper’s job in Texas.

Court Refuses to Split up Children

Justice Pagones took the position that by moving to Texas the mother terminated her ability to spend time with the parties’ children. In addition she was no longer capable of attending counseling which had been set forth in the parties’ stipulation of settlement which had been so ordered by the court. In addition, the court found when she left her job as a nurse in New York, moved to Texas and didn’t receive a position as a state trooper she fell behind in her child support payments. She was now almost $50,000 behind in her child support payments. The court also found the mother sought to separate the parties’ children by moving one of them to Texas with her. Her application to the court proposed her daughter stay with the father in New York while the son moved to Texas with her. The court found this was not acceptable. Judge Pagones concluded the mother’s petition did not have supporting evidence that separating the two children would be in their best interest. He also found she was unable to offer a plausible submission of evidence that her daughter’s best interests would be enhanced by the court child support payments, taking her from her father, and moving her to Texas.

The father’s motion to dismiss the mother’s application was denied.

Conclusion

More and more judges are recognizing the valuable, loving relationship fathers have with their children. More and more fathers are having success in enforcing the laws in New York which makes custody decisions gender neutral.