Father Entitled to Credit for Overpayments of Child Support

January 9, 2014 By

father's rights attorneyThe general rule concerning child support payments, in New York State, is if you overpay your child support, you are not entitled to a refund or credit for the overpayments. However, if you underpay your child support, legal action can be taken against you to force you to pay the correct amount of child support. In a recent case, a father over paid child support by $29,000. This was due to an error made by a support magistrate. In this case, even though there is a public policy in New York that prevents restitution of overpayments in child support cases, an upstate appeals court has made a ruling giving the father credit for the $29,000 in overpayments in child support.

Appeals Court Gives Father a $29,000 Credit

The case took place in Albany County. Judge W. Dennis Duggan had increased the man’s child support payments by $1,000 per month. An appeals court reversed the judge’s ruling. The appeals court stated it would be unjust to deny the father a credit for the overpayment.

Judge Duggan stated that if the father had underpaid child support he would have had to have made up the difference. Judge Duggan went on to state “the law can not contenance a situation where the father is liable for up to $29,000 in excess child support when Family Court gets it wrong but he would get a credit for up to $29,000 when Family Court gets it right.”

The original child support payment was $1500 per month pursuant to a judgment of divorce. A support magistrate had granted an order raising it to $2500 per month based on a change in circumstances. The appellate court reversed the support magistrate’s ruling.

Conclusion

Denying a father the appropriate credit for overpayments punishes the father for following a court order that is later reversed. This would be fundamentally unfair. Fathers should be entitled to credits for overpayments of child support. These credits should be utilized with regard to future child support payments the father is obligated to make.

help in handling child support issues Elliot S. Schlissel is a father’s rights attorney who has represented fathers throughout the Metropolitan New York area for more than 45 years in divorce cases and Family Court proceedings.

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Wife Denied Temporary Spousal Maintenance

November 22, 2013 By

father's rights attorneysIn a divorce action pending in Westchester County, in the State of New York, a wife sought pendent lite spousal maintenance (temporary spousal maintenance). She requested all compensation paid by their company, A Management Corp. (AMC), to both the husband and wife be equal. In addition, she sought a temporary spousal maintenance (alimony) award in the divorce lawsuit.

The attorney for the husband opposed wife’s application. The husband claimed his wife voluntarily left the employment of AMC. He further stated even after she left she still was receiving her salary. While she was receiving a salary, he made payments for many of the marital expenses, including her cell phone and car insurance. The husband also alleged that although he had been paying the wife’s salary she had actually not worked for AMC for a period of four years.

Judge’s Ruling

Justice Linda Christopher, ruled the wife’s requests for temporary spousal support and requiring all compensation paid to her and her husband by AMC to be equal, was an unreasonable request. She took the position the relief the wife asked for was not authorized and not appropriate since wife did not have an active role in the company for four years. Judge Christopher stated the presumptive award for spousal maintenance was $9,824.60 annually. She also found this amount would be unjust and inappropriate. Her decision was there should be no temporary spousal maintenance award. The court took this action because the wife was still receiving a salary from AMC. She was able to support herself on this salary and she was still receiving voluntary payments from her husband to cover her expenses that were in excess of her salary.

Conclusion

protecting father's rightsYou can’t have your cake and eat it too!

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Enforcing Rights of New Fathers

November 20, 2013 By

father's rights lawyerParental leave for the birth of new children should be for both mothers and fathers. Presently birth mothers are entitled to ten weeks of paid vacation leave upon giving birth. When men and women adopt children, both the man and the woman are entitled to parental leave. Unfortunately, if you are the biological father of the child, you are only entitled to two weeks of parental leave.

Biological Fathers Are Second Class Citizens

At a time when men and women have equal rights to custody and equal rights to parenting time (visitation with their children), it is time men have equal rights also to parental leave when they are fortunate enough to have child come into this world. Most employers do not provide parental leave for new fathers. In families where both the mother and father work, sometimes it is more practical for the father to stay home and take care of the newborn child than the mother. Currently there are no federal laws that prohibit discrimination against fathers who have the responsibilities of taking care of young children. Should it be considered sex discrimination if an employer provides paid leave for a mother to take care of a newborn child but doesn’t provide for paid leave for a father in the same situation?

Men Raising Children

Men taking responsibility to help raise a newborn child are acting outside of the normal gender roles for men and women. When a man takes time off from work to spend time with a newborn child it helps him bond with the child. To make a woman equal to a man in the workplace requires the man also be equal to the woman with regard to benefits and responsibilities.

advocating new father's rightsElliot S. Schlissel, Esq., is a father’s rights attorney. He has represented fathers for more than 45 years with regard to protecting father’s rights in divorces, custody and parenting time issues.

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Internet Downloaded Separation Agreement Found Valid

September 30, 2013 By

father's rights lawyerIn a recent case before Justice Leonard Steinman sitting in the Supreme Court Divorce Part in Nassau County, a husband had filed a divorce action against his wife. In this proceeding, he sought to incorporate by reference a separation agreement into the judgement of divorce. The wife argued the agreement should not be allowed to be incorporated into the judgement of divorce. She claimed she was induced by fraud into signing the agreement.

A motion was made to determine whether the agreement was valid. The Court found the agreement was drafted by the wife. She found the agreement on an internet website. After downloading and printing the agreement she presented it to the husband, he executed it.
The agreement had a waiver of spousal maintenance. It also stated there would be “no demand for child support payments”. The agreement required the parties sell the marital home and equally divide the proceeds. Pursuant to the terms of the agreement, the parties opted out of exchanging financial net worth statements. Neither the husband nor the wife were represented by an attorney during the course of the negotiation and execution of the agreement. However, the parties did properly execute the agreement before a notary public and they filed it with the County Clerk of Nassau County.

The Agreement Terms Were Followed

The Court found that the parties had followed the terms of the agreement after its execution. The Court found the parties had lived separate lives. They did not share a bedroom together. They also filed separate tax returns.

The Court found the separation agreement executed by the wife was not unfair or inequitable. The judge ruled the wife’s claims that the parties did not intend to be bound by the agreement were undercut by “its unambiguous terms.” He made this decision even though the wife waived spousal maintenance in the agreement.

It should be noted, the husband acknowledged that the child support provision does not comply with the Child Support Standards Act. However, he agreed that this could be severed from the agreement and the rest of the agreement could be enforced.

Justice Steinman found the agreement to be valid and incorporated it into the judgement of divorce.

Conclusion

In this case, the wife wanted to have her cake and to eat it too. She drafts an agreement and then decides later on she wants more. Justice Steinman found she was not entitled to a second bite at the apple. This is a case where men’s rights were protected.advocate for father's rights

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Divorce Case: Equitable Distribution After Death

September 27, 2013 By

father's rights attorneysRecently, Supreme Court Justice Stacey Bennett sitting in a Matrimonial Part in Nassau County made a decision in an unusual case. A husband started a divorce lawsuit. He was granted a judgment of divorce in this proceeding. Both parties after the divorce were to submit post trial briefs to the court regarding all outstanding economic issues. Then, the husband committed suicide. The wife claimed suicide didn’t stop the divorce action from going forward because the judgement had already been rendered.

Husband Tries to Deny Wife Equitable Distribution

The husband, a physician, in an attempt to deny his wife and children equitable distribution of millions of dollars in assets and life insurance that he possessed, decided to kill himself. At the time the husband committed suicide he was aware he had advanced brain cancer and did not have a significant time to live. Prior to committing suicide the husband changed the beneficiaries on his $2,000,000 life insurance policy and $3,000,000 in his investment accounts. In violation of the court’s order he changed the beneficiaries from his wife and their son and named his mother, who is the executrix of his estate, and his sister as beneficiaries. The suicide took place after each of the parties had rested their presentation to the court but before a final judgment had been entered.

The legal question presented was whether the suicide abated the divorce (stopped it from moving forward) and prevented the Supreme Court Judge handling the case from making a decision on equitable distribution of the assets.

Judge Bennett held “suicide, like murder, is an intentional act and the husband’s estate should not be able to benefit from it by seeking an equitable remedy.” Judge Bennett went on to write in her decision “consequently in the interest of justice, equity and the efficiency of the Court system, this Court finds the right to equitable distribution in this action survives the husband’s suicidal death.”

The husband’s attorney claimed the case needed to be dismissed because the husband was dead. The dismissal of the case after one of the parties dies is called abatement. However, Justice Stacey Bennett said this case didn’t abate because the divorce had been granted already. Justice Bennett’s decision was that she still had jurisdiction to finalize all the remaining economic and financial issues in this divorce proceeding even though the husband died before equitable distribution took place. Justice Bennett took the position the entry of the divorce itself was merely a ministerial act. The case was to continue even after the husband’s death on the issue of equitable distribution.

Novel Legal Question Presented

The legal question presented to Judge Bennett was a novel question of whether an intentional suicide stops a divorce action and whether the issues that were not resolved prior to the death involving equitable distribution survive the death. Judge Bennett wrote, “here, the husband committed suicide and thus those who now represent his interests come to the court with unclean hands”. Judge Bennett’s position was the suicide was specifically designed to prevent the wife and child from receiving the decedent’s assets. Judge Bennett’s decision said the husband’s committing suicide “demonstrated a nefarious pattern of conduct on part of the husband designed to deprive his wife and children of any assets.”father's rights advocate

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Protecting Men’s Rights in a Divorce

September 18, 2013 By

father's rights lawyerAlthough there are many issues that need to be dealt with in divorce situations, there are two basic themes. The first theme has to do with children, custody and visitation. The second theme has to do with division of assets, child support, spousal maintenance (alimony) and other financial issues.

Punished for Being Successful!?

Men who have worked hard to obtain an excellent education and/or credentials and have strived and dedicated themselves to both their family and their employment initiatives, should not be punished in a divorce situation.

Often men come into our law office with questions such as:

  1.   I have worked hard to develop my business, how can I keep it?
  2. How do I keep my career, provide for my children, and not become a deep pocket to fund my wife’s exorbitant lifestyle?

Planning and Strategy

Fighting a complicated divorce can be similar to fighting a mini war. If negotiations and settlement attempts fail, each side prepares for a battle. This battle is called a trial.

Our office helps our clients develop an effective strategy to preserve their assets, maintain relationships with their children, and not be devastated by the divorce process itself. Approximately 5% of all divorce cases in New York go to trial. The other 95% are settled either before trial or at trial. It therefore is necessary to prepare for trial while continuing to negotiate to obtain the best possible results.

Caring for a Child

A father’s love and devotion for his children is not second string to a mother’s love and devotion to her children. Under the law in the State of New York, both parents are considered to have equal ability to obtain custody of their children. Today, more and more fathers are stepping up to the plate saying “I want custody of my children.” Fathers are dedicating themselves to being in their children’s lives. The former standardized types of visitation that judges handed out in the past do not necessarily meet the father’s needs today.

The Best Interests of the Child

The standard in the State of New York as to who receives custody of the children is what is in the children’s best interest. Judges are forced to make these very difficult decisions. There is no standardized scale rating mothers and fathers for their talents involving child raising, emotional stability, and bonding with their children. There are standards within the statutes in the State of New York but they are general standards. In many situations, judges make decisions on who will receive custody based upon gut reactions that are thereafter qualified within the law.

Children deserve the love, dedication and financial support from both parents. In some cases, joint custody arrangements can be worked out and the parents can amicably raise their children. However, this is not true in all cases. In some cases, the children are going to live with one parent and the other parent is going to visit! If you are a father and seek being more than a visitor in your child’s life, then you need the best, most dedicated, most experienced father’s rights lawyers to protect your interest. At the Law Offices of Schlissel DeCorpo our father’s rights attorneys have been delivering for our clients for more than 45 years.helping fathers and children

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Challenging Paternity

October 1, 2012 By

father's rights lawyerIn a case before Judge Lubow, in the Queen’s Family Court, a father brought a proceeding to vacate an acknowledgment of paternity. He claimed he had been fraudulently induced into signing the acknowledgment of paternity.  His papers stated, he relied on the mother’s contention he was the biological father. She had advised him she had been separated from her husband for a substantial period of time, and she didn’t  have sex with anyone else.

DNA Paternity Testing

            The father now claims DNA testing has shown he is not the father. The Court, in its ruling, stated that there is a presumption of legitimacy regarding a child born during the marriage. The presumption is the child is a biological product of the marriage. This presumption, the Court stated, should only be rebutted by “clear and convincing evidence tending to exclude the husband as the father or otherwise disproving legitimacy.”

Mistake Of Fact Or Fraud

            In this case, the Court found there had been a detrimental reliance on a mistake of fact or fraud. The Court found it was not in the child’s best interest to leave this question up in the air. The court ordered official DNA testing. The court stated, if it found the biological father was the woman’s husband the acknowledgment of paternity would be stricken. However, if it found that he was the biological father he would still be able to petition for visitation with the child.paternity assistance for fathers

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Mother’s Relocation Of Children Denied

September 27, 2012 By

father's rights attorneyIn a case in Monroe County, Supreme Court, Justice Dollinger took into consideration the preference of two boys, 11 and 14 years of age, in making a decision to allow them to stay in Rochester with their father. Their mother had brought an application to the Court to relocate the children to Washington DC. She had recently received a new position as an assistant dean at Howard University. The Judge, in his decision, stated “that consistency of their preference and the sound basis for it – it is undisputed they have friends, opportunity, activities, and substantial academic success in Rochester – requires that this Court ascribe some significant weight to their choice.”

Court Didn’t Want To Move Children From A Strong Environment

The Judge in his opinion also stated “it is undisputed the sons are thriving in Monroe County.” Both excel in academic performance; both are heavily involved in activities from Lego robotics, to boy scouts, music, religious instruction and other activities. Neither parent could cite a single example in which the two sons have not achieved substantial success in their home community.  Both boys had expressed their wishes to remain in Rochester. The Court found both the father and mother were excellent parents.  The Court took into consideration the relationship between both the custodial and non-custodial parent.  The Court looked at the degree to which the children’s lives might be enhanced by the move. The Court also took into consideration preserving the custodial relationship between the mother and the children concerning the move. The mother argued for continuing her custodial relationship with the children and that the move to Washington would provide them with cultural and academic opportunities.

Father’s Rights Protected

The father promised to keep the sons involved in the activities in the locality in Rochester, attend the same church and maintain a relationship with their friends. The court, in its decision, stated “in this Court’s judgment, the relocation to Washington, DC would impact the quality of the visitation as well as the casual, easygoing quality described by the father as the interaction with his sons.”  The Judge further wrote “if the father were required to visit his sons in Washington, there is no evidence as to how he would achieve reasonable visitation while staying in a hotel, for example. Based on these factors the quantity and quality of the father’s visitation will be substantially impacted by the relocation.”

It should be noted the sons, prior to the relocation, lived with the mother and the father had visitation on alternative weekends and two evenings a week.

This is a victory for fathers’ rights advocates!father's rights advocates on long island

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Custody Modified: Father Given Custody

September 24, 2012 By

father's rights attorneysIn a recent case, Judge Stacy Bennett, a Family Court Judge now sitting in the Supreme Court in Nassau County granted a father a modification of a previous custody order.  The modification granted him the physical custody of his daughter.

In this case the father claimed the mother had been engaged in “vicious behavior” which included repeated false accusations of sexual abuse by the father. These accusations were unfounded. In spite of the fact that they were unfounded they resulted in an eventual alienation of the parties’ daughter.

On three previous occasions the Court had dismissed family offense petitions brought by the mother alleging physical sexual abuse by the father.  The Court had also vacated temporary orders of protection in this situation.  A Court appointed forensic evaluator, in his report, recommended custody be transferred from the mother to the father. Judge Stacy Bennett agreed with the forensic evaluators findings. She felt the evidence established the mother would continue to make the reports of sexual abuse. She found the mother was “unwilling and unable to promote a healthy relationship between the father and the child. This put the child at risk of emotional damage.”

Best Interest of Children To Give Father Custody

            The Court found the best interest of the child would be to modify the previous custody order and change custody from the mother to the father. The Judge found that the mother was unfit to continue to act as her daughter’s custodial parent.

Guilty Until Proven Innocent

            Fathers, for decades, have found themselves guilty until proven innocent of false charges of child abuse. This decision is a step in the right direction!

About the Author’s Law Firm

            The Law Offices of Schlissel DeCorpo
have represented thousands of fathers in child custody and visitation proceedings throughout the Metropolitan, New York area during the last 45 years.  We offer free consultations and our phones are monitored 24/7.custody and child support assistance for fathers

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Father, Active In The Military, Granted Modification Of Custody Allowing Him To Have Custody

August 2, 2012 By

father's rights attorneyIn a decision in the Family Court of Suffolk County, Judge Teresa Bryant Whelan, in October of 2011, granted a father who was active in the military, residing in Virginia, custody of his children.  Judge Whelen, in her opinion, stated that the parties had agreed to separation and joint legal custody.  Initially, the mother was the residential custodial parent.

In his petition to modify the custody application, the father alleged the mother had stopped taking her mental health medication.  It also alleged she abused drugs and alcohol.  As a result of the mothers improper conduct her children were removed from her care.  The maternal grandmother was the temporary custodial parent.

Unfortunately, the grandmother worked long hours and had difficulty caring for the children.  The Court found that the father was the more fit parent and it was in the children’s best interest that custody be changed and he be given residential custody.  The Court indicated in its decision even though the father was an active member of the United States Air force and subject to possible relocation, it was still in the children’s best interest that custody be awarded to him.

Conclusion

            This case is an example of the continuing development of a father’s right to have custody of his children in New York.family court advocate for fathers

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