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Modifying Child Custody Orders

Life is not static. Circumstances and events in parents and children’s lives sometimes necessitate the non-residential custodial parent (parent who doesn’t have custody) bringing a proceeding to change the custody arrangement regarding the child or children of the parties. There is a two-step standard which must be met by the parent seeking to have custody changed. Step one involves providing documentation and evidence to the court showing there has been a substantial change of circumstances with regard to the current situation involving where the child resides. This places a significant burden on the parent seeking to change custody. Step two requires a showing that the requested modification of custody will be in the child or children’s best interest.

Family Court or Supreme Court

If the custody situation involving the child or children was part of a judgment of divorce taken in the Supreme Court, the parent seeking to modify custody has a choice of either going back to the Supreme Court or going to the Family Court and presenting his or her case in that venue. There are strategic reasons as to why one would choose each of these courts. The circumstances and events in each individual case would determine the choice to be made.

In the event the parents were never married, the only available venue to bring the proceeding either to establish custody initially or to modify a prior custody order of the Family Court would be in the Family Court.

Attorney for the Child

When the application to modify custody is made, if the current custodial parent seeks to retain custody they will oppose this application. When the case is presented to a judge, the judge in most circumstances, will appoint an attorney to represent the child or children. The attorney who represents the child or children will interview them, look into the allegations in the petition, and present their point of view to the court with regard to which parent he or she would rather reside with. If there are two children, sometimes, the court will appoint a different attorney for each child. Unfortunately, the attorney for the child or children is strictly an advocate and is supposed to present their point of view which may not necessarily be in their best interest.

Difficulties in Being Successful in Contested Custody Modification Proceedings

The concept of burden of proof is sometimes not understood by individuals who seek to change a child’s custody. The party seeking to modify the prior custody order must show at a hearing by a preponderance of evidence that there is both a substantial change in circumstances with regard to where the child or children are being raised and that this change in custody will be in their best interests. There are evidentiary rules which courts follow with regard to these presentations. The fact that they are unhappy or that the parent bringing the proceeding has a nicer home in a better school district and/or he or she has developed a much stronger relationship with them would not necessarily meet the burden of proof to change custody.

Conclusion

If you seek a change in custody of your child or children, you may only get one chance to bring this proceeding. To maximize your chances of being successful, hire an experienced child custody attorney to represent you in these proceedings.

Evidentiary Standards in CPS and ACS Proceedings – Part II

CPS and ACS defense attorneyAbuse and/or Neglect Proceedings in Family Court

Family Courts in the Metropolitan New York area are overburdened. Judges are faced with numerous cases each day which should require significant amounts of time. However, the reasonable amount of time required to deal with these cases is usually not available to judges. Judges are forced to make decisions over families’ and children’s lives after only several minutes of presentation. This means if you appear in court in a proceeding based on allegations of child abuse or child neglect, the presentation made by you or your attorney must be maximized to get your point across quickly and persuasively. You will not be able to tell an entire story at the initial court proceeding. The purpose of the initial court date is for the judge to find out generally what the case is about. It is not a trial date. If the judge decides the case should have a trial or hearing, the judge will schedule it for a trial or hearing on subsequent dates.

Family Violence and Abuse

The abuse and neglect of children is a serious matter. The writer understands that there are terrible cases involving children who are abused and neglected. However, this article deals with cases involving well-meaning, dedicated, loving families who are sometimes torn apart by specious allegations of child abuse or child neglect often coming from mandatory reporters who simply misunderstand their responsibility. Mandatory reporters do not have a responsibility of reporting every injury or bruise on a child. The over-reporting by mandatory reporters causes well-meaning, loving families to find themselves in stressful situations by overzealous CPS and ACS workers looking for child abuse and child neglect in situations where they simply do not exist.

Conclusion

If faced with an investigation by either CPS or ACS it is in your and your child’s best interest to consult with an attorney experienced in dealing with these matters as soon as possible. What you say to these investigators can be used against you in proceedings in the Family Court.family law attorney

Evidentiary Standards in CPS and ACS Proceedings – Part I

family law lawyerThe standard of evidence used in child abuse and child neglect proceedings is called the preponderance of the evidence. When Child Protective Services (hereinafter referred to as “CPS”) or the Administration for Children’s Services (hereinafter referred to as “ACS”) seeks to establish child abuse or child neglect they bring proceedings in Family Court. Family Courts makes these decisions based upon a preponderance of the evidence. Unfortunately, individuals representing themselves in these proceedings usually do not understand how the legal system works and how to present evidence. Sometimes the only evidence presented is the evidence by the CPS or ACS worker of the allegations of abuse or neglect of the children. Opinions of CPS or ACS workers, statements made by young children, hearsay statements made by third parties may all be taken into consideration in proceedings involving child abuse and child neglect.

Parents and other individuals often tell their life stories to CPS or ACS investigators looking for sympathy. This is usually a terrible mistake! CPS and ACS investigators are there to prove that there have been instances of child abuse or child neglect. They work under the presumption that child abuse or child neglect has taken place whenever a complaint is made, no matter how frivolous it is. When parents tell their life story to these investigators, the investigators are simply looking to extrapolate from the story evidence which can be used against the parent in the child abuse and child neglect proceeding.

The Power of CPS and ACS Investigators

CPS and ACS investigators have a lot of power. Unfortunately, there is not an appropriate supervisory system to check their use of the power. Their reports, no matter how salacious, based on opinions not on evidence, based on statements made by individuals who have no actual knowledge of the circumstances and events are given credence. There is a tendency for these investigators to abuse their power. They look for any evidence of child abuse or child neglect. The evidence can simply be that a child was injured. They can take the position that if the child was injured it was someone’s responsibility to see to it that the child was not injured.family law attorney

Uncle Found Not Guilty of Child Abuse

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Elliot S. Schlissel is an attorney who has been handling cases with CPS and ACS for more than 35 years.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Investigations by Child Protective Services (CPS) and Administration for Children’s Services (ACS)

lawyer for parents in CPS proceedingsThe process by which Child Protective Services (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) looks into allegations of child abuse and child neglect is referred to as an investigation. These are not criminal investigations. These are more appropriately described as narrative reports on the status of the children and the interaction with the children’s family related to the event or events in question. It should be noted that CPS and ACS workers are looking to find child abuse or child neglect in their investigations. Once a report of alleged child abuse or alleged child neglect is made it is presumed to be accurate by the CPS or ACS worker until such time as the worker looking into the matter determines it is more likely that child abuse or child neglect has not occurred. In other words, you are guilty until proven innocent!

The purpose of a CPS or ACS report is to reach a determination as to whether or not a child needs to be protected from potential future abuse. CPS and ACS reports focus on the circumstances involved in the family, their history, their economic circumstances, the relationship of family members, their school programs, what their household looks like, whether there are adequate safeguards in the home, adequate food in the home, whether the home is messy, ill maintained and other issues.

Conclusion

Although CPS and ACS workers are not criminal investigators they can have a significant impact on families. Their investigations should not be taken lightly. The fact that they are looking for evidence of child abuse and child neglect must be carefully dealt with. The presumption the CPS or ACS worker is investigating to find the truth as to what happened, may not be accurate. The purpose of the investigation is to ascertain as to whether the allegations are not true. Until such time as they reach the conclusion that the allegations in the initial report are not true, there is a presumption by the CPS or ACS worker that they are investigating an actual case of child abuse or child neglect.attorney for parents facing CPS or ACS charges

Father Granted Supervised Overnight Visitation

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Elliot S. Schlissel is a father’s rights attorney in the Metropolitan New York area.  He and his associates have been father’s rights advocates for more than 35 years.  He can be reached for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Grandparents Visitation Proceedings in Family Court

Grandparents rights lawyerGrandparents, in the State of New York, can bring visitation proceedings with regard to their grandchildren in the Family Court. The proceedings must be brought in the Family Court located in the County where their grandchildren reside. Although grandparents can bring these proceedings, they have to meet certain basic requirements to be successful in these proceedings.

An example of one of the situations where the grandparents can obtain either visitation or custody of their grandchildren is where one or both of the grandchildren’s parents are deceased. In addition, where the courts find the appropriate conditions exist for the grandparents to have visitation and the visitation is in the grandchild’s best interests, the courts can also grant the grandparents visitation. In these cases the grandparents have the obligation to show the court there are circumstances involving a strong relationship between the grandparents and their grandchildren and that it would be in the grandchild’s best interests to continue to maintain that relationship with the grandparents.

Grandparents Visitation Where Both Parents Are Alive

In cases where both parents are alive and neither of them are unfit parents, the grandparents must show, in their petition, more than that they simply have a great love and affection for their grandchildren. They must establish that their relationship with the grandchildren has existed over a period of time and the parents have taken action to prevent the continuation of this relationship between the grandparents and their grandchildren. The grandparents must show that they have tried to maintain the relationship with the grandchildren and the parents have interfered or prevented the continuation of this relationship.

If the grandparents can show they have had a relationship over a considerable period of time with their grandchildren and this relationship has contributed to the health and well-being of the grandchildren the courts will find that it is in the grandchildren’s best interests to continue to maintain their relationship with their grandparents. In these situations the court will give the grandparents visiting rights with regard to their grandchildren.

Grandparents Rights in New YorkElliot Schlissel is a grandparents rights’ attorney.

Mother Given Sole Custody of Children

custody attorney for fathersIn a case before Supreme Court Justice Sharon Gianelli, in Supreme Court Divorce Part in Nassau County, Judge Gianelli granted residential custody to a mother in spite of the fact the father has a nicer home, greater financial resources, space in his home for the children and he was retired which gave him a significant amount of time to spend with the parties’ children.

Irreconcilable Differences

The divorce case was based on irreconcilable differences pursuant to Domestic Relations Law section 170(7). In the lawsuit the mother sought sole custody of the two minor children of the parties. Justice Gianelli found “children are not grocery items”, stating that “charting a course to meet their best interests was a ‘nuanced undertaking’.”

Father Unreasonably Rigid

Justice Gianelli found the father had a pattern of unreasonable rigidness and inflexibility. She found further he showed his negative feelings towards the mother which motivated his actions. Instead of acting in the children’s best interests, the judge felt he acted in a manner to show his anger and dissatisfaction with his spouse.

Justice Gianelli found she was not convinced the father would work towards developing a healthy relationship between the children and their mother. Judge Gianelli also took into consideration the attorney for the children had recommended the mother receive sole custody of the children because this was in the children’s best interests. In addition, Justice Gianelli found co-parenting pursuant to a joint custody arrangement was not feasible in this case. In the end she awarded sole residential custody to the mother because she found it was in the children’s best interests.

Conclusion

Fathers who seek to obtain custody of their children must be careful. In addition to providing the children with an appropriate place to live, the father must show that he respects the mother’s relationship with the children and acts in a manner to promote the children’s relationship with their mother. Fathers should be aware courts take into consideration, it is in the children’s best interests to have good relationships with both parents. Conveying to the children negative impressions of the other parent is considered to be disturbing behavior by judges when deciding who should receive custody of the children.

father's rights attorneyElliot S. Schlissel is a father’s rights attorney.

Father’s Obligation to Pay Child Support Eliminated by Appeals Court

father's rights lawyerThe Appellate Division for the Second Department, an appeals court, in the Matter of Coull v. Rottman, 2014-1516, held a father who had been prevented from seeing his son by the child’s mother no longer would be obligated to pay child support.

In this case, the father had last visited his son in February 2010. During the period of several months thereafter, the father would go to the pick up location on his parenting time days. The mother either would not show up, or would show up and the son would not leave the car.

Mother Extremely Hostile to Father

The mother took the position when she appeared in Family Court of extreme hostility towards the father. She stated on more than one occasion that she would never let the child spend time with the father. She said she would do “whatever it takes” to keep her son away from his father. Based on the mother’s intransigence and refusal to cooperate with regard to promoting the father’s relationship and visitation with his son, the appeals court suspended the father’s child support obligation. The court took the position that where the custodial parent prevents all reasonable access as to a child, the child support obligations may be suspended.

Father’s Visitation Suspended

It should be noted the mother’s cross motion in this case was granted and the father’s visitation was suspended. The child showed great hostility towards the father at the time of the court’s hearing. The court took into consideration the son was 13 years old and even though he had participated in therapy for a number of months to develop a relationship with his father, he was “vehemently opposed” to any type of parenting time between himself and the father.

Conclusion

This is a victory for fathers who have their visitation interfered with. But it is also a loss. As the expression goes, you can bring a horse to water, but you can’t make them drink. The same is true with children. Children who have been so alienated by one parent against the other sometimes cannot be therapeutically reunited with the other parent. Hopefully over time the father in this case will redevelop his relationship with his son.father's rights advocate on Long Island

Father Awarded Residential Custody

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Elliot S. Schlissel has been representing fathers for more than 35 years in all aspects of family law, child custody litigation and divorce law.  He and his associates are available for consultation.  To schedule a consultation, please call 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.