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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.

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

Please click on the link below to watch today’s video blog:

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.

Factors Considered in a Relocation Application

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

Elliot S. Schlissel has been representing fathers for more than 35 years in all aspects of family law 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.

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 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.

Father Rebuilds Relationship With Daughter and Obtains Residential Custody

father's custody attorneyThis is a story about two young parents who had a daughter in 2003. Shortly after the daughter was born, the child’s mother agreed to have the maternal grandmother raise the child in Franklin County, New York. This gave the mother the opportunity to go away to college. While the mother was attending college, she visited her daughter sometimes on weekends, holidays, and on school vacations.

Father In The Military

The child’s father had enlisted in the military before his daughter was born. He was twice deployed in Iraq. Due to his deployment overseas he rarely saw his daughter. When he was discharged from the military in 2007, the father worked out an arrangement with the maternal grandmother whereby he would have a regular visitation schedule with his daughter. During this period of time he was able to reestablish his relationship with her.

Family Court Custody Proceeding

When the mother returned to New York in 2011, the grandmother moved out of state. A proceeding was brought in the Family Court concerning the custody of the parties’ daughter. The Family Court awarded the parties’ joint legal custody, however the father was named as the residential custodial parent of his daughter. The mother was unhappy with the decision of the Family Court and she appealed to the Appellate Division of the Third Department, an appeals court. The Appellate Division affirmed the prior order of the Family Court. The court took into consideration the mother waited more than 2 years before she sought custody of her daughter. They found this action of the mother was “the most discerning factor” concerning whether or not she should be given residential custody. The appeals court also found the mother did not reestablish herself back into her daughter’s life in Franklin County for the purpose of avoiding the relocation of the child.

Conclusion

Fathers who love their children and are willing to make sacrifices to reestablish relationships with their children can prevail and obtain residential custody.father's rights lawyer