Elliot S. Schlissel is a father’s rights attorney. He can be reached at 1-800-344-6431, or by email to schlissel.law@att.net
Father Given Sole Custody Due To Mother’s Interference With His Visitation Rights
September 5, 2014 By
The Appellate Division of the Third Department, an appeals court in Upstate New York, recently rendered a decision affirming changing custody from the mother to the father based on the mother’s interference with the father’s rights to visit with the parties’ child.
The parties had initially entered into an agreement whereby the mother was given an award of sole custody. In addition, she was given a one year stay away order of protection against the father.
Father Files Petitions
The father filed a violation petition and custody petition in the Family Court. He alleged the mother had been continually interfering with his parenting time with the parties’ child. There were hearings in the Family Court. The Family Court judge found the mother had not complied with the visitation provisions in the court’s custody orders. The Family Court ordered the custody changed from the mother to the father. The father was given sole custody of the parties’ child. The mother filed an appeal.
The Decision on Appeal
The Appeals Court unanimously affirmed the changing of the custody of the child from the mother to the father. The Appeals Court found the mother had frequently violated the terms and her obligations under the prior court orders requiring her to cooperate with regard to promoting the relationship between the father and child and by refusing to give him his parenting time with the child. Instead of complying with the court orders for long periods of time, the mother simply refused to give the father visitation with the child. The mother intentionally violated court orders on a regular basis.
The Appeals panel took into consideration the fact the mother’s fitness to care for the child had deteriorated. In the end, the appeals court found it was in the child’s best interest to give the father sole custody.
Custody of Son Changed: Judge Finds Mother Cannot Be Trusted To Be the Custodial Parent of the Parties’ Son
August 29, 2014 By
Supreme Court Justice Colangelo sitting in Westchester County recently had an unusual case presented to him. In this case, the mother had paraded her son from one forensic psychologist to another. This was done in a concerted effort to destroy his relationship with this father. In addition, the mother had hired a former actress in soap operas and paid her $57,000 to help prepare her for her starring role as a witness in the custody case involving her son.
The Trial
There was a trial which lasted 18 months before Justice Colangelo. There were 25 days of testimony by the mother alone. Justice Colangelo found she was fixated on destroying the father’s relationship with the son and therefore “cannot be trusted” to make decisions regarding the parties’ son. Justice Colangelo in his decision went on to state “when left to her own devices she misused her decision making authority to trot a mentally healthy child to numerous psychological appointments clearly aimed to deprive him of a relationship with his father – a result that may have, and if allowed to recur certainly will rob [the boy] of his remaining childhood.” Justice Colangelo changed custody from the mother to the father in spite of the recommendations made by the court appointed psychologist and the attorney for the child.
Hired Forensic Psychologist
Justice Colangelo’s decision deals with the issue of parties’ to custody litigation hiring forensic psychologists to promote one parent’s arguments and with regard to the issue of trial consultants preparing witnesses with regard to their testimony. The judge found the mother was evasive during her two weeks of testimony.
Judge Colangelo indicated in his decision the mother had hired Daniel Lobel, a Westchester psychologist, and paid him $6,000 per day to prepare subjective, result oriented testimony. The judge also stated the mother had spent more than 50 hours with a psychologist, Jonathan Gould, who is a well known forensic evaluator, who helped prepare her for her interview with the court appointed forensic psychologist, Stephen Herman, from Manhattan. Justice Colangelo found the mother had met with numerous mental health professionals and a number of lawyers with regard to her desire to “deprive [the boy] of a meaningful relationship with his father.” The judge found “such a goal might have proven laudable had [the father] actually been the abusive monster [the mother] sought to depict.”
Father a Caring Man
Justice Colangelo went on to state there was no evidence presented at trial that the father was anything other than a caring, responsible man who recognized the need for both parents in the child’s life. Justice Colangelo found the mother’s behavior to be “inimicable” to the welfare of the child. The mother’s arguments that the child needed to be protected from his father were completely without merit.
Justice Colangelo in his decision went on to state “absent the imposition of some stringent boundaries on [the mother’s] prerogatives and conduct, based upon her actions to date, [the child] will surely spend the remainder of his childhood being prodded and probed by a constant parade of mental health professionals seeking to find something wrong with a healthy child who needs only a true, loving relationship with both parents.”
It should be noted the mother has appealed this decision.
Court Orders Change in Custody Due To Mother Interfering With Father’s Visitation
August 22, 2014 By
There was litigation in the Family Court between a father and a mother. The father alleged the mother had acted in an obstreperous manner, had interfered with his visitation with the parties’ children in violation of court orders and had created a situation which made it extremely difficult for the father to have visitation. The father claimed the mother’s disruptive, antagonistic behavior was not in the children’s best interest and was having a negative impact on the parties’ child.
A trial was held in the Family Court. The mother had declined to have an attorney and had represented herself during these proceedings. At the end of the Family Court trial, the Family Court Judge found there had been a change in circumstances to the extent a change in custody was warranted due to mother’s interference with father’s visitation rights. The mother appealed this proceeding.
Appellate Court Decision
The Appellate Division for the Third Department (an appeals court) upheld the Family Court’s order finding the mother in contempt and changing custody to the father. The Appeals Court found the mother had violated a prior court order with regard to the father’s visitation rights. The court also found the transfer of sole custody of the child to the father was indicated in the circumstances due to the mother’s contentious behavior. The Court found the mother was aware of the terms of the Family Court order giving the father visitation and she intentionally refused to comply with this court order.
The mother had argued she was denied her right to counsel due to the fact she represented herself. However, the appellate court found she was given the opportunity to retain an attorney and declined to do so. The court also found the mother had engaged in obstructionist behavior during the course of the Family Court trial and her responses to questions were evasive.
The appellate court affirmed the decision of the Family Court giving the father sole custody.
Conclusion
This is a major victory for father’s rights! A mother’s obligations when she is the residential custodial parent is to promote a loving, warm relationship between the children and the father. Interference with a father’s visitation rights is appropriate grounds to change custody from the mother to the father.
Obtaining Custody for Children Born to Unmarried Fathers
August 14, 2014 By
Paternity Proceeding
In the State of New York, a father can sign an acknowledgment of paternity at the time a child is born. The acknowledgment of paternity specifically states that I am the father of this child. If an acknowledgment of paternity isn’t executed by the father at the time of the child’s birth, the first step in obtaining visitation rights or custody is to file a paternity proceeding.
The Paternity Proceeding
The paternity proceeding is fast and simple if the mother simply says, yes he is the father. However, if the mother disputes the fact he is the father or there is a question in her mind as to who the father is, the court in New York will order DNA testing to ascertain whether this man is actually the father of the child.
Custody Petitions and Visitation Petitions
Once paternity is established, the next step is to file an application for custody or in the alternative for visitation with the child. These petitions are filed in the Family Court in the county where the child is located. This petition can ask for sole custody, joint custody, or just simply for visitation. After the petition is filed, the court will make arrangements to serve the child’s mother. The two of you will then have to appear in court on the return date of the petition.
Establishing That You Are The Superior Custodial Parent
If you seek custody of your child, you must show it is in the child’s best interest you be named the residential custodial parent. In addition, you can show why the mother should not have custody of her child. Issues the mother has with drug abuse, child abuse, child neglect, prior history of drug abuse, criminal records, and associating with inappropriate and/or violent individuals can be the basis for your asking for custody of your child.
Visitation With Your Child
If you simply seek visitation with your child, and you have no negative history which would prevent you from having visitation rights, the usual visitation regimen given by the Family Courts in New York is every other holiday, every other weekend, and one dinner during the week. Also, fathers are given access to the child on Father’s Day and the child’s birthday. In addition, the child should be entitled to telephone and Skype contact with the father on a regular basis.
Conclusion
Children have two parents. They should have relationships with both parents. This helps them grow up to be well meaning, well balanced adults.
False Allegations of Child Abuse
August 12, 2014 By
A disgusting tactic sometimes used against men when the children’s mother perceives there will be a custody dispute is to file false allegations of child abuse and/or domestic violence against the other parent. Courts tend to take these allegations seriously. In my experience, false allegations of both domestic violence and child abuse are made by both men and women. However, they are used much more often by women and courts take allegations of domestic abuse against women more seriously. This turns out to be a tactic with very little downside risk. The reason for this is courts do not usually punish individuals who make false allegations of domestic violence and child abuse.
Child Protective Service investigators and the police tend to believe the accuser. They often ignore the credible explanations made by the individual who is accused of either domestic violence or child abuse.
Control
The tactic of making false allegations of either domestic violence or child abuse has to do with controlling the family situation. In many cases, the false allegations of abuse are part of a program of Parental Alienation Syndrome (hereinafter referred to as “PAS”). The individuals making the false allegations of child abuse are not taking into consideration the long term impact this will have on their children. They are doing this for inappropriate, selfish reasons.
When a mother makes false allegations of child abuse, the father is usually thrown out of the house. This gives the mother exclusive occupancy of the home, control of the home’s assets, and control of the children. The man is put out on the street with just the clothes on his back. He needs to get a court order just to get back in the house and get the rest of his clothing.
Keeping Children From Their Father
After allegations of child abuse are made and a temporary order of protection is issued by a court, it can take weeks and sometimes months until the father has contact with his children again. Children who have not had contact with one of their parents for a considerable period of time sometimes become tentative and shy. If the allegations of child abuse are accompanied by the mother filling the children’s heads with false stories of abuse and neglect, the children can become fearful of their father.
My Way
In the end, the parent making the false allegations of child abuse is saying to the other parent, everything will be done my way. If you don’t do what I say, the way I tell you to do it, you are never going to see your children. Who suffers in the end? Both the loving parent kept away from his children and the children. PAS is a terrible syndrome and it can take long term therapy to deal with this problem if it is not nipped in the bud.
The Trial of a Custody Case – Part II
August 1, 2014 By
Temporary Custody
Sometimes, in divorce cases and Family Court custody proceedings, applications are made for temporary custody orders. These temporary custody orders give one parent or the other custody during the pendency of the case. Unfortunately the wheels of justice tend to turn slowly and the custody cases can sometimes languish in courts for years. A parent who receives temporary custody during this period would have a step up on the other parent in obtaining permanent custody. Therefore all temporary custody orders should be taken very seriously.
A temporary custody hearing is a mini trial within the trial. Preparation for this mini trial on custody should be handled in the same manner as the trial for permanent custody.
Settling the Custody Case
In most situations a settlement is the best route to take in a custody dispute. Joint custody can be worked out where one parent is the residential custodial parent and the other parent is the non-residential custodial parent. The non-residential custodial parent can have extensive visitation with the children to satisfy that parent’s needs to maintain a close relationship with the children. In the large majority of custody disputes this is the best route to resolve this issue. It eliminates the children getting too involved in the custody proceeding and the aggravation and stress of going through the trial.
Conclusion
Although custody cases can be aggravating and traumatic for the parents, it is even more traumatic and difficult for the children involved. Care should be taken that the trial and/or negotiations in the custody case are done out of sight and hearing of the children. The children should be insulated from custody litigation, issues in Family Court, and divorces. Children are designed by God to love both their parents. Frustrating or alienating the children from one parent to another is the worst possible outcome. Children are better off with two loving parents to guide them through life situations.
The Trial of a Custody Case – Part I
July 29, 2014 By
Winning Custody Trials
Custody disputes are personal. They involve children. Your children. They can be expensive, aggravating, and frustrating. They are not as simple as who is the better parent.
Parents Can Be Imperfect
No parent always does the right thing in every situation. Even the best most dedicated parents have flaws, faults and issues that can be brought up to a court. Attorneys preparing for custody litigation must deal with parents’ strengths and their weaknesses.
Arguments That It Is In The Children’s Best Interests That You Receive Custody
Your custody case should have a theme based on the theory the children’s best interests are better served with you receiving custody of them. This theme must be developed to deal with specific facts involving you and your children. This must also be developed to show giving the other parent custody would not be in the children’s best interests.
Why A Parent Seeks to Have Custody
There are many reasons why parents want custody of their children. Your attorney should discuss with you your real motives for having custody of your children. Be advised, avoiding paying child support is not an appropriate reason for wanting custody of your children.
Client’s Conduct in Custody Lawsuits
If you are involved in litigating a custody case, you must assume the other parent is trying to find “dirt” on you. You should be careful as to what you say and what you do. You should avoid writing things down on paper. Don’t be surprised if the other parent is trying to intercept your phone calls, read your emails, and speak to your friends, relatives, paramours, and neighbors about information to be utilized in the custody trial against you.
Evidence in Custody Trials
Custody matters are brought in front of judges. There are no juries in custody cases. There are generally two types of evidence submitted at custody proceedings. Documentary evidence which involve documents of a certain type and nature that can be presented into evidence and live testimony of witnesses. It is often necessary to have a live witness testify to get documentary, written, evidence into the record. The rules regarding the presentation of evidence are quite complicated. This is a matter you should discuss in detail with your attorney prior to the trial as to which documents will be presented and how those documents will be presented into evidence.
Witnesses must present facts. These facts should be about the child’s life and how one parent or the other has had an affirmative or negative impact on the child’s life.
Halle Berry Paying $16,000 Per Month For Child Support Payments
July 24, 2014 By
Halle Berry has been involved in a long, drawn out litigation involving child custody and child support. She was recently ordered to pay $16,000 in child support payments to Gabriel Aubrey with regard to supporting the parties’ six year old daughter, Nahla. This child support has to be paid by her each month until Nahla is 19 years old or graduates high school, whichever event should occur first. In addition, Halle Berry was ordered to pay $300,000 in legal fees to Gabriel Aubrey and $115,000 in retroactive child support payments. It is reported these sums are pursuant to a settlement of a case involving Ms. Berry and Mr. Aubrey which had been pending in Los Angeles Superior Court.
History Between the Parties
Halle met Gabriel in 2005. Halle Berry is an Academy Award winning actress and Gabriel Aubrey is a Canadian model.
Relocating to France
At one point during their legal battles, Halle Berry brought a proceeding to relocate her daughter to France. She was unsuccessful in this proceeding. At the present time, both Berry and Aubrey have joint custody of the parties’ six year old daughter. However, Aubrey is the residential custodial parent.
Last year, Ms. Berry gave birth to another child with her current husband, Oliver Martinez.
Elliot Schlissel is a father’s rights attorney. He represents fathers in custody litigation, child support litigation, and issues involving visitation rights and parenting time.
Forensic Evaluator Removed: Report Not Accepted
July 3, 2014 By
In contested custody disputes, courts often hire a psychologist or a social worker to do a forensic analysis as to which parent would be better suited to be the custodial parent of the children. The forensic evaluator is supposed to look into all aspects of the interaction of the parents and the children and make recommendations in the children’s best interest as to which parent would be more suitable or the better residential custodial parent.
Forensic Evaluator’s Report
Justice Jeffrey Goodstein sitting in the Supreme Court Divorce Part in Nassau County, New York, recently had a case involving issues concerning a forensic evaluator’s report.
A father had brought an application to change custody. In the event of the modification of the custody, he also wanted his child support payments eliminated. The attorneys for the wife opposed the father’s application and a hearing was scheduled. The court appointed a forensic evaluator, a psychologist, to do a forensic analysis regarding parenting time and issues concerning custody of the children.
Forensic Evaluator’s Failures
The attorney for the husband brought an application to appoint a different forensic evaluator. In reviewing the application by the husband, the court made the following findings. The forensic evaluator who had been appointed, had failed to act with an acceptable standards for a forensic evaluator. This evaluator had not looked into Child Protective Services reports, issues concerning sexual abuse, and the facts and circumstances of the various mental health professionals that had cared for the father and mother and the children during the past few years. The evaluator said she rendered her report based on the interviews she had with the parties. The evaluator admitted she did not perform any psychological tests on the parties. Justice Goodstein found this evaluator had deviated from acceptable standards for forensic evaluations concerning child custody issues. He therefore did not accept the report into evidence and did not consider it in making a decision. However, he did find that although this forensic evaluator’s report would not come into evidence, he still needed the report of a forensic evaluator in order to determine the various issues concerning parenting time and custody presented to him in this case. He therefore had the parties retain a new forensic evaluator.
Are Forensic Evaluators Needed?
There is controversy as to the need for forensic evaluators in custody cases. The judge should be the ultimate decision maker of who gets custody and who is the more appropriate custodial parent for the children. In this case the parties spent a lot of money on one forensic evaluator and now they are going to have to spend a lot of money on a second one. Hopefully the second evaluator will do a more complete evaluation.
