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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.

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.

Father Given Legal and Physical Custody of Special Needs Child

Father's rights lawyerForensic Evaluator Appointed

In a case in Richmond County, New York, a wife commenced a divorce lawsuit against her husband. The issue as to who would be the more appropriate parent to have custody of the parties’ special needs child was presented to the court. Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County appointed a neutral forensic evaluator. The forensic evaluator was appointed to look into the issue of who would be the more appropriate custodial parent. After a detailed examination of the circumstances involving the child’s life, the forensic evaluator wrote a report suggesting the father should have physical and residential custody of the parties’ special needs child.

Wife Had Questionable Credibility

Justice DiDomenico took into consideration the testimony of the parties before rendering a decision. She found the wife’s credibility was at times not to be taken seriously. Her testimony was contradicted by other witnesses. She had lied to both ACS and the Family Court referee with regard to her relationship with her ex-husband, a man who had been convicted of murder. She also had a violent criminal history of her own which made her less acceptable to be a custodial parent.

Father Honest and Forthright

Although the father had prepared a net worth statement which had a number of inaccuracies, the court found he was honest and forthright and credible with regard to his testimony. Justice DiDomenico ruled the father was the parent better suited to meet the everyday needs of the parties’ special needs child. This specifically referred to the child’s medical and educational needs. The court also noted the mother did not even accept, until fairly recently, the fact that her daughter had special needs. The mother was shown to be inflexible and failed to foster a relationship between the child and the child’s father. She was therefore “less fit” to be the residential custodial parent. The father was awarded sole legal and physical custody.

Elliot S. Schlissel is a father’s rights lawyer.Father's rights advocate

Court Orders Joint Custody

father's rights attorneyCourts usually do not render court orders ordering joint custody. Parents can work out joint custody agreements, but these usually have to be worked out out of court. In an unusual case, a court attorney referee in Nassau County Supreme Court recently rendered a decision which granted both parents joint legal and physical custody of the children. She rendered this decision because she felt it was in the children’s best interests.

Each Parent Wanted Sole Custody

In this case the mother and father each sought sole custody of the two minor children of the parties in their divorce lawsuit. An attorney was appointed to represent the children. This attorney for the children took the position the father was better suited to manage the children’s educational needs.

Equal Parenting Time

The parents had previously entered into a temporary parenting schedule which gave each parent virtually equal parenting time with the parties’ two sons. Referee McCormick referred to the New York State Court of Appeals case of Braiman v. Braiman with regard to the issue of joint custody. This case noted joint custody was inappropriate when both parties were “embattled and embittered.” However, it did not prevent courts from ordering joint custody in all cases.

Referee McCormick found the evidence set forth that both parents were actively involved in their children’s lives. Both of the boys enjoyed spending time with each of their parents. She also found that both parents sought to encourage the relationship between the boys and the other parent. She found the parents lived in close proximity to each other and therefore joint custody was a feasible solution to this case. Referee McCormick found both parents should have a decision making role for their children. She also found the parents should each have about an equal amount of parenting time with the parties’ children. Court Attorney McCormick went on to award joint physical and legal custody to both of the children’s parents based on the fact it was in the children’s best interests.

Conclusion

This is an unusual decision. Courts rarely order joint custody in situations where the parties cannot amicably work out joint custody arrangements on their own. Court Attorney McCormick’s decision is well reasoned and appropriate in this case.child custody attorney for fathers

Judge Awards Custody of Sons to Wife and Daughter to Husband

custody attorney for fathersJustice Leonard Steinman sitting in a Supreme Court Matrimonial Part in Nassau County recently had a case before him where the husband claimed the wife had turned his sons against him. He also claimed the wife was trying to turn his daughter against him too. During this divorce case the wife argued the husband was a deadbeat father. She claimed he attempted to “starve” her and the children by intentionally taking action to have his income reduced. Justice Steinman found the sons had “by deeds and words vociferously proclaimed their hatred of their father.” He also noted the daughter had also expressed some hostility towards her father.

Wife Interferes With Father’s Relationship With His Children

Justice Steinman found the wife had intentionally prevented the father from maintaining a loving relationship with his sons. The court had appointed a forensic evaluator in the case. The forensic evaluator concluded the wife had contributed to the boys’ “disenfranchisement” with their father. The forensic evaluator took the position that an award of custody to the mother would result in the sons’ having no relationship whatsoever with their father. The forensic evaluator took the position that an award of custody to the mother would result in the father having virtually no contact with his sons. In addition, the evaluator found the daughter would also eventually adopt the same position as her brothers and it would be impossible to establish a visitation arrangement between the father and his daughter.

Judge Steinman awarded the mother residential custody of her sons. He took this position because if he tried to award the father custody of his sons, it would only foster more hatred between them. However, he found it was in the daughter’s best interest to separate her from her brothers and from her mother. For the purpose of allowing the father to maintain a relationship with his daughter, he awarded the father legal and physical custody of his daughter.

Conclusion

This is a very unusual decision. Judges do not like to break up brothers and sisters. Here the judge had no choice. The mother’s actions would have turned the daughter against the father and he would have lost his relationship with all three children had the judge not taken this action.father's rights attorney

Custody Changed From Mother To Father

father's rights lawyerIn a case before Onondaga Family Court Judge Michael Hanuszczak, a father sought a change in custody due to the mother violating a custody order by preventing him from having access to the parties’ child for a period in excess of one month. He specifically requested physical custody be changed from the mother to him. The mother had brought her own application to the Family Court. She sought a modification of the current custody order from joint custody to sole custody for her.

Mother Violates Custody Order

During the course of the proceedings, the mother acknowledged she had violated the prior custody order by withholding the child from the father. She stated she took this action because the exchanges of the child between the father and the mother had become violent. Judge Michael Hanuszczak found the mother had willfully violated the order of custody. The judge took the position there was enough credible testimony with regard to the change in circumstances warranting a change of the prior custody arrangement. He held the breakdown and deterioration of the parental relationship between the mother and the father was itself a change of circumstances justifying a modification of the custody order.

Father To Provide a More Stable Environment for Child

The judge reached a decision whereby joint custody was no longer viable due to the lack of communication and the hostility between the father and the mother. The judge found the father could provide a more stable environment for the parties’ child. The judge took into consideration that even though the father was unemployed he had stable housing and a family support system. The judge found the mother’s inappropriate behavior during the course of the exchanges of the child and her willful violation of the prior custody order by preventing the father from having parental time with his child was detrimental to the child’s best interests. Judge Hanuszczak therefore awarded the father sole legal and physical custody of the child.

Conclusion

If you find yourself in a situation where the child’s mother is disobeying a custody order which granted you parenting time with your child, you can bring a proceeding to change custody. Children have two parents and both parents have a right to have a relationship with their children.child custody attorney

Parenting Plans

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Elliot S. Schlissel is a father’s rights attorney with nearly 40 years experience representing fathers in all aspects of family law.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

The Factors Considered By The Court In Determining Custody

To watch today’s video blog, please click on the link below:

Elliot S. Schlissel is a father’s rights attorney with more than 35 years representing fathers in all aspects of divorce and family law.  He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

Custody for Fathers

To watch today’s video blog, please click on the link below:

Elliot S. Schlissel is a father’s rights attorney with more than 35 years of experience representing fathers in custody proceedings.  He and his associates handle all aspects of family law and divorce litigation.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Custody Litigation

To watch today’s video blog, please click on the link below:

Elliot S. Schlissel is a father’s rights lawyer with more than 35 years of experience representing fathers in all aspects of family law and divorce.  He and his associates are available to discuss the details of your particular situation.  Please call him at 516-561-6645, 718-350-2802 or send an email to schlissel.law@att.net to set up a consultation.