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Post Trial Applications need to go to the Appellate Division

Post Trial Applications In a case before Justice Jeffrey Goodstein, who sits in the divorce Supreme Court part in Nassau County, a husband brought an application to set aside a provision in a 2017 court decision after trial awarding a wife a $226,042.00 money judgment for support arrears. He also sought to modify the court’s decision crediting him for $200,907.68 in support payments. The court allegedly failed to give him the appropriate credit among other things.

The Wife’s Position

The wife opposed the husband’s application. She brought a cross-application to allow her to trade cash assets awarded her in exchange for the husband’s equity in the marital residence. She claimed it was essential for the parties’ special needs son to remain in the marital residence, to stay in the same school district, keep his friends and maintain the same routine.

The Trial Judge had Retired

Justice Goodstein, in a matter of first impression, ruled that under the circumstances presented in this case the prospective of a trial judge, now retired, was essential to the appropriate evaluation of the parties’ motions. Since the trial judge was retired, Justice Goodstein found he had no authority to rule on these post trial motions. The decision regarding all financial issues was resolved by the decision after trial. Therefore, under both statutory law and case law any change or challenge to the trial court’s decision would have to be made to the Appellate Division, an Appeals Court. Only the Appellate Division could determine if the modification of the trial court’s decision was appropriate. He therefore denied both parties’ applications.

Conclusion

In this case there were issues that should have been dealt with before the original trial judge. Parties in divorce cases should always resolve all issues when they settle or take a case to trial.

schlissel-headshotElliot S. Schlissel has been representing parties in divorce and family court cases in the courts throughout the Metropolitan New York area for more than 35 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

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.

Who Gets the House in a Divorce?

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

Who Gets the House When There Are Children?

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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.

Mother’s Relocation Application Denied

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Elliot S. Schlissel is a father’s rights lawyer.  Elliot has been representing fathers in relocation hearings, custody proceedings,  child support hearings and all aspects of matrimonial law and family law for more than 35 years.  Elliot and his associates may be reached for consultation at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.