Changing Custody

Changing-Custody

Custody orders and judgments can be changed and/or modified. The standard for changing or modifying a custody order is to establish there has been a change in circumstances and this change in circumstances is sufficient to warrant a modification of the prior custody order. The change in circumstances must be of a substantial nature and it must be shown that modifying the custody order would be in the children’s best interests.

Jurisdictional Issues

Sometimes the prior custody order is amended by a court located in a different state. In these cases it must be established that New York is the appropriate jurisdiction for the proceeding to challenge the prior custody order. There are specific rules with regard to which state is the appropriate state to handle the new proceedings involving custody. You should contact an experienced child custody attorney to first determine whether you are bringing the custody case in the correct state and secondly as to whether you can establish a basis for a significant change of circumstances which would lead a court to modify the custody order you are challenging.

Enhanced Parenting Time vs. Children and Custody

Changing which parent is the residential custodial parent requires the party challenging the prior custody order be in a position to make a significant evidentiary presentation to the court supporting his or her allegations. However, to obtain greater parenting time (visitation) with children does not require establishing a change in circumstances up to the standard necessary for modifying a custody order. Therefore, in many situations it is more appropriate to show it is in the children’s best interest that they spend more time with the non-residential custodial parent. Both parents are usually in a position to enhance the lives of their children.

schlissel-headshot

Elliot S. Schlissel is a father’s rights lawyer with more than 30 years of experience representing father’s in child custody, visitation and parenting rights cases. He can be reached at 516-561-6645, 718-350-2802 or 631-349-8262 at his firm. He can be emailed at Elliot@sdnylaw.com. Schlissel DeCorpo LLP maintains offices in Nassau, Suffolk and Queens Counties.

Wife Seeks Child Support

A wife had brought an application seeking child support about a year after the divorce case started.  The husband was a teacher.  He also owned a small construction company.  He made $152,000.00 in 2015.  During that same year the wife had earned $122,000.00.  In addition, the wife received substantial rental income from a variety of real estate interests she inherited from her family.

 

The Parties Separated

The parties separated in December 2013.  The father moved into the parties’ second home located in Sayville, Long Island.  She remained in their former marital residence.  The father had instead of paying the wife child support for the children, agreed to pay the Sayville property expenses.  In addition, he was paying medical and other insurance expenses included on both properties.  He contributed to the children’s expenses whenever wife requested as well as when the children were with him.

 

Child Support Denied

Justice Quinn sitting in Supreme Court in Suffolk County took note there were no allegations in wife’s submissions the children’s needs were not being met.  He further found the wife had substantial income above a teacher’s salary.  In addition, the husband’s health insurance covered all the parties’ medical expenses.  Justice Quinn found the children’s standard of living remained consistent.  Their financial and emotional needs were provided for.  He denied Elliot Schlisselthe wife’s application for child support.

 

Elliot S. Schlissel is a father’s rights lawyer representing fathers throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Father’s Rights Advice

Fathers Rights

There was a time in New York when there was the presumption the mother was going to get custody of the children. That is not the case in 2018 in the State of New York. Fathers have the same rights as mothers to obtain custody of their children. In most families both the father and the mother work today. The days of daddy working and mommy staying home and raising the kids does not represent the majority of families. In some cases the stay at home parent is the father, not the mother. The changes in family dynamics have made the gender neutral law in the State of New York regarding custody issue more practical and creates greater possibilities for fathers to obtain custody of their children.

Fathers’ Impact on their Children’s Lives

Children who are raised without fathers have a greater possibility of using illegal drugs, dropping out of school and of committing domestic violence assaults. Fathers can have a significant affirmative impact on their children’s ability to succeed in life and become productive members of society.

Helping Fathers be Successful in Custody Disputes

For more than 30 years our law office has been representing fathers in custody disputes. There are a number of mistakes some fathers make which have a negative impact on court proceedings to obtain custody. Among these mistakes are: the father moving out of the home where the children reside; fathers maintaining their residence in a dirty, messy manner; failure of fathers to hold steady jobs and have steady incomes; and most significantly the failure of fathers to fight phony orders of protection cases initiated by the children’s mother.

Children’s Best Interests

The standard used by the courts in New York to determine issues involving custody and visitation are what is in the children’s best interests. It is generally in the children’s best interests to have loving relationships with both parents. However, if one parent prevents the other parent from having a relationship with the children, this can be shown to the judge handling the case. Fathers who anticipate a custody or visitation dispute should retain counsel as early as possible. There are a number of actions fathers can take to enhance the possibility they will obtain extensive visitation or custody of their children.

Attorney Elliot Schlissel

Our law office has been representing fathers in custody and visitation cases for more than 30 years. We maintain offices in Nassau, Suffolk and Queens Counties and can be reached at the following phone numbers 7 days a week: 516-561-6645, 613-319-8262 and 718-350-2802. You can e-mail me at: Elliot@sdnylaw.com.

Father’s Rights in 2018

From an historical prospective, mothers have been given the benefit of the doubt with regard to who would Father and daughter holding hands together.receive custody of the children. Today, however, this is not the case. Fathers are winning more and more custody cases. The courts can no longer assume the mother is the more appropriate parent to have custody of the parties’ children. The law in New York is gender neutral. In more and more custody cases the courts are carefully weighing the children’s best interests. This has led to fathers receiving custody in a larger percentage of the litigated custody cases.

Joint Custody vs. Sole Custody

If one parent is awarded sole custody by the courts in New York they have complete authority with regard to making all significant decisions in the children’s lives. In joint custody situations both parents have access to the children and both parents are supposed to communicate and cooperate with each other regarding significant decisions concerning the children’s lives. However, even in joint custody situations one parent is the residential custodial parent and the other parent is the non-residential custodial parent. The children live with the residential custodial parent. They attend schools located near the residential custodial parent’s home. In cases of joint custody sometimes one parent is given the ability to be the tiebreaker should the parents disagree on a particular issue involving the children’s health, education and welfare.

Equal Time with the Children

Our office strives to provide fathers whether they are the sole custodial parent or in joint custody situations with the ability Attorney Elliot Schlisselto spend as much time as is practical with their children. Fathers are a resource for their children. Children who have two loving parents develop better than children who only have limited access to one of their parents. Fathers provide children with a unique prospective to help them turn into well rounded individuals.

The law firm of Schlissel DeCorpo LLP have more than 100 years of combined legal experience in representing fathers in custody cases, support proceedings, downward modifications of child support, changes in custody proceedings and visitations proceedings. Our office offers free consultations and our phones are monitored 7 days a week. We can be reached at 516-561-6645, 718-350-2802 and 631-319-8262. We have offices in Nassau, Queens and Suffolk Counties. You can e-mail us at Elliot@sdnylaw.com.

Father Given Sole Legal and Physical Custody of Child

Close Up Of Father And Sons Reading Story At Home

A husband and wife were married in 2005. They had two (2) children born from the marriage. In 2015 a lawsuit for a divorce was commenced. During the divorce case Family Court offenses were filed by the parties each seeking Orders of Protection against the other. In addition, Orders of Protection were sought for the two (2) children who were 8 and 10 years old.

Justice Stacey D. Bennett sitting in the Supreme Court matrimonial part of Nassau County agreed to the request by the parties to transfer the Orders of Protection from the Family Court and consolidate these family offense petitions with the current divorce action which was before her.

Both Parents Seek Custody

Both the husband and the wife sought custody of the parties’ children. The custody issues focused around the wife’s alleged mental illness and her inability to take care of the children.

Judge Bennett awarded the father sole legal and physical custody of the children. She found he was the more suitable parent and it was in the children’s best interests to reside with their father.

Conclusion

Attorney Elliot Schlissel

Fathers can obtain custody of their children! Too often fathers come to me and start our discussions with: I understand it is almost impossible for a father to get custody. That is nonsense. The law in New York State is gender neutral. More and more judges are enforcing the law as it was written. The purpose of the gender neutral custody law in New York was to treat both fathers and mothers fairly and give custody, in contested custody situations to the parent who is best suited to take care of children and who would promote the children’s best interests.

Happy Thanksgiving

Happy Thanksgiving

Happy Halloween!

Happy Halloween

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.