The Difference Between Biology and Law

Paternity can be a difficult issue and can have life-changing effects if not properly established and accepted. Obviously every child has a biological father, however, if a child is born to two unwed partners, that child is defined as not having a legal father. This means that no man has any legal rights or responsibilities when it comes to the child and the child may ultimately suffer by not having the same benefits and rights as children of a married couple.  In order for the child and father to receive these rights the paternity must be established.  There are two ways that an unmarried partnership can establish paternity: first, the father can volunteer to sign an Acknowledgment of Paternity form or secondly, both parties can apply to the court to determine paternity. These and other paternity matters, including child support issues can be dealt with at a good family law firm.

The Child’s Birth – And What Men Should Know

When a child is born, the mother’s husband is automatically that child’s father in the eyes of the law, unless a court determines otherwise. The legal process to determine another father for the child outside of the marriage will usually include a court hearing, whereby the mother, her husband and – often – the biological father of the child will give their evidence or written testimony establishing the facts of the case. DNA tests are often included in these court hearings. Such proceedings are quite straightforward, and can be handled very efficiently by a good family law department. If, however, there’s a case of contested paternity, the court usually orders a genetic marker test – or a DNA test – to determine the paternity of a child. These cases can get a little messier: in its most basic form, the case itself indicates that the father does not believe himself the father of a child. In some cases, the mother may not be entirely sure of paternity and therefore all parties require a DNA test to establish whose responsibility the child is. These issues can become very heated between parties – but are quickly determined by the DNA test, so long as everyone agrees peacefully to follow this genetic marker route.

Rights of a Father Before Birth

An obvious ethical and legal question is: at what point does a father become the father of a child? This is part of a much larger question: when does a life become a life? That we won’t delve into here. However, since abortion is a highly contentious topic at the best of times – with pro-lifers and pro-choice campaigners never agreeing on when a life begins, nor whether the rights of a baby begin at time of birth or earlier – we can see that paternity issues only exacerbate these issues. Naturally, views on abortion – and certainly the question of who has a right to decide whether an abortion can be carried out – are further complicated when there is argument over the unborn child’s paternity. At the moment, the law states that the decision to abort rests with the mother but it’s a generally contentious issue. If anything ever did change, there are fears that if fathers are granted the ability to deny a woman the right to abort a fetus, perhaps this power would extend further: could it extend (or at least have implications for) her choice of birth control or access to emergency birth control? As Kwik Med states, “the main ethical objection to Emergency Contraception (EC) is that it is a form of abortion. These objections hinge on the definition of when pregnancy begins. The most common scientific view is that pregnancy begins when the embryo becomes embedded in the uterus, while, for most objectors, it is at the point of conception. The latter view leads to the possibility that any method that potentially destroys the embryo can be seen as a form of abortion”. We see from this that the topic is a tangled and fascinating one, even without the difficulties of a contested paternity.

What’s The Future?

At the moment, legalities surrounding paternity are pretty clear cut: if a man signs an Acknowledgement of Paternity form at the hospital or shortly afterwards, there is no issue and he acknowledges himself as the child’s legal father. Also, if the unmarried couple decide to go to court to legally declare the child as belonging to both of them, the hearing is quite short and uncomplicated, simply involving an acknowledgement by both parties that this is the case. As we know, areas that will continue to gain much attention are the rights of fathers – particularly in abortion cases. Although at the moment, the law favors the female’s rights over her own body, (meaning that she need not seek permission from her partner in order to abort their baby) we can imagine that in the future – with more use of frozen embryos, for example – this view of the woman’s sole right over her body may be slightly altered. We can anticipate that this position will continue to be reviewed and debated – and this will no doubt prove to be a very hot topic over coming years.

This article was presented by a guest author, Melissa Johnson.

Enforcing Rights of New Fathers

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.

Joint Custody Does Not Relieve Both Parents From Paying Child Support

father's rights lawyerWhere the parents have joint or shared custody, involving each of the parents having equal time with the children, both parents are not relieved of their obligation to pay child support. Most parenting plans designate one parent as the primary residential custodial parent. This is necessary especially in Nassau and Suffolk Counties on Long Island. School districts will look to parenting plans and divorce settlement agreements to establish the primary residential location of the child. The reason for this is that school district want to know who will be responsible for providing schooling for the child or children.

Parent With Greater Income Pays Child Support

In the case of Bast v. Rostoff, the New York State Court of Appeals in 1998, dealt with the issue of an equally shared custody arrangement and obligations to pay child support. In this case both parents requested the court to have the other parent pay them child support. The Court of Appeals (the highest Court in New York State) ruled in shared custody situations, the parent with the greater earned income is by the very nature of earning more money than the other parent deemed to be the non-custodial parent for child support purposes. This causes the parent with the greater income to pay child support payments to the parent with the lesser income. This is an example of the expression “no good deed goes unpunished.” Work hard, get educated, get a good job, earn more money than your spouse, and even if you have 50% of the visitation you still have to pay child support!

custody and child support advocates for fathersThe father’s rights lawyers at the Law Office of Elliot S. Schlissel, represent fathers throughout the metropolitan New York area with regard to issues involving child support, custody and divorce.

Custody Changed Where Mother Alienated Children Against Father

father's rights lawyerReferee Dean Richardson-Mendelson, sitting in the Family Court of Rockland County, recently had a very disturbing case presented to him involving parental alienation of three children by a mother against their father. In this case, the father sought to modify a previously entered Judgment of Divorce. The settlement in the divorce case had granted both the mother and the father joint legal custody of the parties’ three children. The father now sought sole legal custody and sole physical custody of all three children due to the mother’s relentless program of parental alienation of the three children against the father.

Father’s Parenting Time in the Judgment of Divorce

In the original Judgment of Divorce the father was granted parenting time on alternating weekends. In addition he had two dinner visits with the children during the week. Pursuant to the Judgment of Divorce the father had parenting time on alternating holidays in addition to the standard weekly visitation.

Court Grants Sole Legal Custody and Physical Custody to Father

Referee Dean Richardson-Mendelson found the mother had systematically over a period of time, engaged in parental alienation of the children. Her actions were of such a nature to prevent the father from having a relationship with his children. Referee Richardson-Mendelson found the mother’s actions were systematic and designed to sabotage the father’s relationship with his children.

The Court noted in its decision the children maintained a negative view of the father that was not related to the actual reality of the parental situation between the father and the children. He further found the distortion in the relationship between the children and the father was caused by the mother’s relentless campaign of negatively influencing the children against the father. The court ordered a change in custody of two of the three children. Unfortunately, the court found that the third child was so indoctrinated by the mother to hate her father, he was concerned that she would run away.

parental alienation assistanceElliot S. Schlissel is a father’s rights lawyer representing fathers throughout the metropolitan New York area for more than 45 years with regard to custody, visitation and divorce related issues.

Child Support: Are You Paying Too Much?

father's rights lawyerIn the State of New York, the non-residential custodial parent must pay child support to the residential custodial parent. There are specific requirements in New York concerning how much child support the non-residential custodial parent must pay. Generally speaking, the non-residential custodial parent must pay the residential custodial parent 17% of gross wages, less FICA, for one child, 25% for two children, 29% for three children, 31% for four children and 35% for five children or more.

The parent paying the child support is entitled to deductions for the amount he is paying in spousal maintenance (alimony) or child support for another child. In addition to paying these prescribed child support amounts pursuant to the Child Support Standards Act (a federal law enacted in all 50 states), the parent must additionally make contributions towards child care expenses and health care expenses.

Change in Financial Circumstances

Your child support expenses do not change if you lose your job, get downsized, become too ill to work, or retire before the child reaches the age of majority. To reduce your child support expenses, you either have to enter into an agreement with the other parent and have that agreement So Ordered by a judge or you have to bring a petition in either the Family Court or the Supreme Court (if you were divorced or a matrimonial action is pending) to reduce your child support obligations. The court can only award a reduction of child support starting on the date you brought your initial petition to the court. The child support reductions will not be retroactive to the time that you had the change in your financial circumstances which caused you to bring the application to court to reduce your child support expenses.

Child Support and Father’s Rights

Many fathers who have dealt with the Family Courts in the State of New York have come to the conclusion when the mother seeks custody of the children, the Courts tend to favor the mothers. Fathers need to be very aggressive when bringing an application to reduce child support payments. The best manner for a father to handle these matters is to hire an experienced dedicated father’s rights lawyer to represent him in these proceedings. There are a variety of technical aspects to downward modifications of child support a father must satisfy to convince a judge to reduce his child support obligations.

Father Loses His Job

Just because a father loses his job does not automatically entitle him to a downward modification of child support. The father must prove in court the loss of the job was not because he had done something wrong and also show the court through documentary evidence he has used due diligence to obtain other employment.

Is There Fairness in Child Support Orders?

I have been practicing law for more than 35 years. There are numerous times each month where I am presented with a case where the standard rules concerning child support may be unfair to a father paying child support. Since each case has its own unique circumstances, my office provides a roadmap as to what is necessary for the client to be successful in a proceeding for the downward modification of child support. We help gather the evidence and prepare the client for the necessary court appearances. If the case is properly prepared and properly presented a court will usually grant the downward modification of child support.child support attorneys

Distribution of Pensions and Retirement Assets in Divorces

fathers rights attorneysIn the State of New York, the distribution of assets accumulated during the course of a marriage is dealt with under the theory of equitable distribution. If the parties cannot amicably resolve issues concerning their assets in a divorce, the assets of the marriage which include, cars, houses, personal property, cash, investment assets, pensions and retirement accounts, are equitably distributed by a judge. The equitable distribution of retirement assets, pensions, 401(k)s, 403(b)s, and IRAs, can be a complicated process. Sometimes these assets need to be evaluated by a pension evaluation firm or an actuarial firm to determine the portion of the pension asset which was accumulated during the course of the marriage.

Retirement accounts the parties accumulate during the course of the marriage are considered marital property subject to equitable distribution. This is true even if only one spouse has a pension and the other spouse didn’t work. When there are retirement assets such as pensions, 401(k)s, or 403(b)s, which accumulated during the course of a marriage, it is necessary to obtain a Qualified Domestic Relations Order (hereinafter referred to as a “QDRO”). The purpose of a QDRO is to provide the administrators of the retirement asset with a breakdown as to how the benefits shall be paid between the employee and the non-employee spouse. QDROs also eliminate, minimize and/or distribute, the taxes that are to be paid between the parties when the deferred compensation assets are received.

QDROs

QDROs are very complicated court orders. The process to obtain a QDRO usually involves providing a pension analysis firm or actuarial firm with all of the necessary financial information related to the pension or deferred compensation plan. These firms analyze the portion of the asset accumulated during the marriage and the portion accumulated prior to the marriage. After clarifying this information, they draft the QDRO and forward it to the attorneys for the respective parties. The attorneys thereafter check the QDRO to make sure it is accurate and submit the QDRO to the judge handling the divorce for his/her signature. After the QDRO is executed by the judge, it is served by the attorneys on the administrators of the retirement accounts referred to in the QDRO. QDROs are important to see to it that the parties to a divorce obtain the retirement benefits they are entitled to. These benefits will become very important down the road when they will help pay for living expenses during the respective party’s retirement.father's advocate

Change of Circumstances Necessary for Court to Change Custody

fathers rights lawyerIn a case in Westchester Family Court decided in August 2013, Judicial Hearing Officer Howard Spitz dealt with competing applications by both the mother and the father to modify a So Ordered Stipulation of Settlement granting physical custody to a child’s mother. Both the father and the mother filed petitions with the Family Court seeking to have custody changed to sole custody for them.

Forensic Evaluator Appointed

The Court ordered an independent forensic evaluator be appointed. The evaluator was ordered to write a report concerning the competing custody petitions. The report of the forensic evaluator called the mother a “restrictive gate keeper.” The report by the forensic evaluator recommended the court grant the father sole custody.

The attorney for the mother hired an independent expert to provide his own forensic report. The expert hired by the mother’s counsel, testified there were deficiencies and major flaws in the report of the court appointed evaluator. Judicial Hearing Officer Spitz found there were “errors of omission by the court appointed independent forensic evaluator.”

Failure to Prove Change of Circumstances

Judicial Hearing Officer Spitz in his decision stated neither the mother nor the father were able to establish a sufficient change in circumstances to warrant a change or modification of the custody arrangement worked out in the 2008 Stipulation of Settlement.

Judicial Hearing Officer Spitz’s decision found the child was well adjusted, didn’t have anxiety, and was a good student. His decision stated giving one parent all decision making authority and awarding that parent sole custody was not in the child’s best interest. Both the father’s and the mother’s petitions were denied. The court did change decision making authority from the mother to the father concerning all issues involving education and financial matters.advocate for fathers

Center for Urban Families in Baltimore Helps Fathers

fathers rights lawyerBaltimore has a program run by the Center for Urban Families designed to help fathers reestablish relationships with their children. The Center helps fathers find jobs as part of their programs. Since its inception, hundreds of fathers working with the counselors in this program have learned to become more responsible parents and reestablish relationships with children whom they had abandoned.

Joe Jones, the Chief Executive Officer and founder of the program, recently stated “what we want to do is get these people above ground and back into the mainstream.” In addition to helping fathers find jobs, the Center takes action to end what Joe Jones refers to as “the cycle of father absence.” The Center seeks to break the cycle of fathers not being responsible for their children.

Children Raised Without Fathers

In 2012, the American Community Survey which was undertaken by the United States Census Bureau showed approximately 19 million children across the United States live in homes without a father.

Many men who come into the Center grew up in homes without fathers. Studies show children who are raised without fathers have a greater likelihood of parenting children during their teens. In addition, children raised without fathers have higher instances of drug abuse and being involved in criminal activity, pursuant to the National Father Initiative. It is the goal of the Center’s Responsible Fatherhood Program to provide men the support system and the basic tools they need to become responsible parents for their children. The program teaches fathers a variety of parenting skills including how to be financially responsible for their children.

About the Founder – Joe Jones

Joe Jones’ father left when he was 9 years old. Jones became a drug addict. He spent more than 17 years taking drugs, selling drugs and committing crimes to support his drug habit. When Jones was 21 years old he had a son. He took no responsibility for the child. In 1986, Jones was convicted of a variety of drug related criminal offenses. He was placed in a residential rehabilitation program. After completing the program, Jones went to Baltimore City Community College and obtained an Associate’s Degree. He worked for a series of non-profit organizations in Baltimore. During this time he realized there were no programs to help fathers. In 1992, he founded the Men’s Service Program at the Baltimore Department of Health. Seven years later he founded his own non-profit organization, The Center for Urban Families. He took this action because he felt he needed to give something back to the community for helping him restart his life. Jones claims to become a better father, you need to become a better man!

help for fathers

Fast Track in Nassau County Family Court for Reuniting Parents and Children

father's rights attorneysNassau County has a new program to reunite children who have been taken away from their parents. This new program was set up by Nassau County Family Court Supervising Judge, Edmond Dane. The program is specifically designed to reunite parents with children under the age of 5. The fast track program is called “Babies Can’t Wait.”

Babies Can’t Wait

The program has been set up in conjunction with the Nassau Family Court, the Nassau County Department of Social Services and Adelphi University’s Institute for Parenting. Adelphi’s parenting institute is a private organization that is designed to promote relationships between children and their parents.

The program is designed to reduce risk, in cases involving either child abuse or child neglect, that children will be harmed. It tries to establish a secure caregiver for infants. There is a preference in the program for biological parents.

The program uses a team approach. The team is comprised of assigned attorneys, family members, an infant mental health specialist from Adelphi, a court facilitator, a deputy County Attorney, and foster care workers who will meet monthly before Judge Dane.

Judge Dane has stated he hopes the new program will be successful in reducing terminations of parental rights. The program also seeks to keep children under the age of 5 out of foster care.

Judge Dane has stated “when a child is taken from a parent, regardless of age, there is trauma.” He further stated “separation affects bonding and attachment especially with babies.” The program is designed to engage parents from the beginning and monitor their progress more often. It is the intent of the program to speed negotiations and result in quicker resolution of infant related cases.

Adelphi University

Adelphi University is providing joint therapy for parents and children. These therapy sessions focus on interaction and care of the children. The therapy sessions allow for additional visitation between the children and the parent.

The Prior Social Service Program Involving Removed Children in Nassau County

Without this program, when the Department of Social Services removes a child from a home, the parent or the child’s guardian has to go to the Family Court and file a petition for a hearing. The Judge then makes a determination at the time of the hearing whether the child faces an imminent danger. If the judge determines that the child faces an imminent danger, the child is not allowed to go home.

The case is then adjourned and a Fact Finding Hearing is held to determine if the child has been abused or neglected. In the event there is a finding of either child abuse or child neglect by the judge an additional hearing called a Dispositional Hearing is held. A Dispositional Hearing can be equated to a sentencing hearing in a criminal case. As a result of these hearings, an investigation is initiated by the Department of Social Services. This investigation takes a number of months and sometimes as long as a year.

Permanency Hearing

After the investigation a Permanency Hearing is held. The purpose of this hearing is to determine long term what shall happen to the child. Should the child be given back to the mother? Should the mother or father’s parental rights be terminated? Should the child be given to a guardian?

Babies Can’t Wait Program

Under Judge Dane’s Babies Can’t Wait program a Fact Finding Hearing is finished in as little as a month and a half. The Permanency Solution for the family would be decided within a year. Judge Dane claims “the longer you let a trial linger the less your chances of success. We want to make sure the focus is on the services rather than the abuse allegation.”

Judge Dane takes the position if the parents deserve it, he wants to give them an opportunity to improve the situation and get back into a relationship with their children.

Hooray for Judge Dane!father's rights assistance

Grandparents’ Control Over Visitation Upheld

father's rights lawyerA proceeding was brought in Nassau County Supreme Court by Steven Libin. He requested the New York Court relinquish control over custody and visitation rights pursuant to a stipulation, to the Courts in Israel. Acting Supreme Court Judge Hope Zimmerman ruled against him. He appealed to the Appellate Division, Second Department, an appeals court in New York. The Appeals Court found Judge Zimmerman, “properly concluded that [her court] retained exclusive continuing jurisdiction over the stipulation as modified to reflect the child’s new residence in Israel.”

History of the Case

The child was born in February 2008. At the time, Libin and his wife, Diana, were residing in Israel. Diana died shortly after childbirth. Libin and the wife’s parents entered into an agreement in Nassau County wherein the wife’s parents, Katerina and Alexander Berkovitch, were given temporary custody of the child. Libin thereafter brought a proceeding in Nassau County and asked for sole custody and requested the prior stipulation with the grandparents be nullified.

Child in Israel but Case Stays in New York

In October 2008, a stipulation was entered into between Libin and the grandparents which gave Libin custody and the grandparents visitation rights. The stipulation was entered into at a time when Libin was residing in Israel. The stipulation stated the Supreme Court (in Nassau County) “shall retain exclusive jurisdiction over this matter for the purpose of enforcing or modifying or interpreting the terms of this agreement.”

The child lived for three years with Libin’s parents on Long Island. The paternal grandparents visited regularly.

In 2011, the maternal grandparents found out Libin had taken the child to Israel. At that time, Libin sought to have the jurisdiction over this proceeding transferred from the Supreme Court in Nassau County to courts in Israel. The court’s decision stated even though Libin planned on living in Israel, the signing of the stipulation giving jurisdiction to the New York State Court was still valid.

Conclusion

This is a case where the grandparents’ rights were upheld.helping grandparents