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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.

Who Gets the House When There Are Children?

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.

Father Given Legal and Physical Custody of Special Needs Child

Father's rights lawyerForensic Evaluator Appointed

In a case in Richmond County, New York, a wife commenced a divorce lawsuit against her husband. The issue as to who would be the more appropriate parent to have custody of the parties’ special needs child was presented to the court. Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County appointed a neutral forensic evaluator. The forensic evaluator was appointed to look into the issue of who would be the more appropriate custodial parent. After a detailed examination of the circumstances involving the child’s life, the forensic evaluator wrote a report suggesting the father should have physical and residential custody of the parties’ special needs child.

Wife Had Questionable Credibility

Justice DiDomenico took into consideration the testimony of the parties before rendering a decision. She found the wife’s credibility was at times not to be taken seriously. Her testimony was contradicted by other witnesses. She had lied to both ACS and the Family Court referee with regard to her relationship with her ex-husband, a man who had been convicted of murder. She also had a violent criminal history of her own which made her less acceptable to be a custodial parent.

Father Honest and Forthright

Although the father had prepared a net worth statement which had a number of inaccuracies, the court found he was honest and forthright and credible with regard to his testimony. Justice DiDomenico ruled the father was the parent better suited to meet the everyday needs of the parties’ special needs child. This specifically referred to the child’s medical and educational needs. The court also noted the mother did not even accept, until fairly recently, the fact that her daughter had special needs. The mother was shown to be inflexible and failed to foster a relationship between the child and the child’s father. She was therefore “less fit” to be the residential custodial parent. The father was awarded sole legal and physical custody.

Elliot S. Schlissel is a father’s rights lawyer.Father's rights advocate

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.

Are Your Children Being Subject to Parental Alienation Syndrome?

father's rights attorney on Long IslandParental alienation can have a destructive effect on a parent’s relationship with their children. Children subjected to parental alienation often exhibit hatred toward the targeted parent. The following are a list of the symptoms of parental alienation syndrome:

  • One of the parents discussing the aspects of the divorce with the children. That parent presents the divorce case from their point of view. They take this position claiming they are trying to be honest with the children. This practice can be harmful and painful to the children. This can cause the children to think less of the other parent. Even when the parent doesn’t have an intentional motive to effect the other parent’s relationship with the children. It still does! Children want to love both of their parents. When they feel one parent has harmed the other parent, they can adopt the same attitude of the parent they feel has been mistreated.
  • Children shouldn’t be allowed to decide for themselves whether they will visit with the non-residential parent. Children have no choice. Child visitation is mandatory pursuant to Court Orders. If one parent gives the children a choice and then after the children make a choice of not to visit with the other parent they are compelled to visit, they will usually blame the non-residential parent for not abiding by their decision not to visit with them. This now creates a situation where the non-custodial parent is being victimized by the residential custodial parent. He or she is not able to see the children when they want to. If they force the children to see them, the children become angry with them.
  • Children have toys and other memorabilia that is important to them. They should be allowed to transport these items from the custodial parent’s home to the non-custodial parent’s home. When they are not allowed to do this, it creates disharmony in the children’s lives. Their normal daily routine is impacted on and it results in problems for the parent seeking visitation with his or her children.
  • In the event there has been domestic violence between the parents, it should not be presented to the child that the child is in danger. In most situations involving domestic violence between parents there is absolutely no indication of violence towards the children.
  • If a child cannot present a reason for being angry with a parent it usually relates to parental alienation syndrome.
  • One parent should not have the child act as a spy on the other parent. When the child comes back from visiting with the other parent, he or she should not be interrogated.
  • When a child comes back from visiting one parent and presents that he or she had a good time, it should not make the other parent unhappy. This may cause the child to withdraw and stop communicating with the other parent. It can also make the child feel guilty for enjoying the company of the other parent.

Father's rights lawyerElliot S. Schlissel is an attorney with more than 35 years of experience representing parents regarding custody and visitation issues. He represents clients throughout the Metropolitan New York area. He is available for consultations.

Equitable Distribution of a Pension

father's divorce attorney Long IslandAn appeal was brought by a husband from a Supreme Court judgment ordering equitable distribution of the parties’ marital assets. The Appeal’s Court found the lower court correctly ordered equitable distribution of two joint bank accounts and the parties’ stock portfolio. These they found were indeed marital property.

Separate Property vs. Marital Property

The Appeal’s Court agreed with the position taken by the husband that the Supreme Court failed to properly consider what part of his pension was marital property and what part was separate property. The Appeal’s Court found that the husband had proved the starting and ending dates of his employment with the United States Postal Service. In addition, he had proved the date of the parties’ marriage. This allowed the Court to determine the portion of the pension which was earned during the course of the marriage and would be considered marital property. The portion of the pension that was earned prior to the date of the marriage should be considered separate property.

Marital Home Husband’s Separate Property

In addition, the Appeal’s Court found the judge in the Supreme Court had also made a mistake in finding that the parties’ residence was marital property, and because of this awarding 50% of its appraised value to the wife. The Appeal’s Court found the home was separate property and it could not be transformed into marital property related to contributions of the wife to its maintenance and upkeep. Since the house was purchased by the husband prior to the marriage it was his separate property and not subject to equitable distribution.

father's rights attorney in New YorkElliot S. Schlissel is a father’s rights attorney representing husbands and fathers regarding issues concerning custody, spousal maintenance, division of assets and all other matrimonial and Family Court issues throughout the Metropolitan New York area.

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

Father Given Custody of Special Needs Child

child  custody attorney for fathersA father, J.M., sought custody of his special needs child who had autism. He claimed the child should remain with him because he had been a primary caretaker since January 2012. The wife cross-moved for custody. She claimed the husband was unfit and sought custody of G.M. She denied various family offense charges which had been brought against her and that she used illegal drugs.

The Divorce Case

Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County was assigned to handle this divorce case. After reading the facts and circumstances of the case she found joint custody was not an appropriate option. She held the relationship between the father and mother was both acrimonious and volatile. In her decision, she found the child’s teacher had stated G.M. had thrived while she was temporarily in the father’s custody. In addition, a forensic evaluator who investigated the circumstances and events of the relationship between the mother, the father and G.M. recommended the father should have physical custody and the mother should be granted parenting time.

Mother Failed To Abide By Court Orders

In addition, the court found the mother refused to follow court orders. She further found the mother disrespected authority and had issues over a long period of time concerning prescription drugs and illegal drug usage. The judge found based on these circumstances and the fact that there was domestic violence between the father and the mother, the father was the more suitable custodial parent for G.M. Her decision stated in this case there were “two imperfect parents.” She found both of them used marijuana on a regular basis. She found the father had tested negatively for marijuana use for a longer period of time than the wife. She also found the father was better suited to create a relationship between the mother and the child if he was given custody. She therefore entered a decision awarding the father sole legal and physical custody.

father's rights attorneyElliot S. Schlissel is a father’s rights attorney. He has been helping fathers obtain custody of their children for more than 35 years.

Husband Denied Temporary Spousal Maintenance

father's rights advocate in New YorkIn a recent case before Justice Jeffrey Goodstein pending in a Supreme Court Divorce Part in Nassau County, New York, a husband sought a temporary spousal maintenance (alimony) award from his wife.  He asserted that he had had discussions with the wife.  As a result of these discussions he retired and closed his armored car company.  He claimed he had not earned any income since 2010.

Justice Jeffrey Goodstein in his decision regarding the husband’s motion stated there were no claims concerning the husband being disabled or any explanation as to why he was no longer able to find employment.  Justice Goodstein suggested the husband should have looked for a job prior to bringing the application for spousal maintenance.

The wife argued in this case the husband was supporting himself, his girlfriend and in addition, his parents.  She therefore claimed the husband’s application for spousal maintenance from her should be denied.

Husband Supported Parties During The Marriage

Judge Goodstein found the pre-separation standard of living of the parties to the marriage was funded by the husband.  He had been earning more than one million dollars a year.  The husband had stated in his moving papers he wanted the wife to work because he felt it was important she develop a work ethic.  Justice Goodstein’s decision stated the husband’s retirement was a lifestyle choice and the husband had no real need for receiving funds from the wife.  Justice Goodstein found if he granted the husband’s application for maintenance it would serve as a disincentive for non-monied spouses to make any effort to earn independent income after a marriage failed.  Justice Goodstein therefore imputed $300,000 to the husband based on his prior earning capacity.  Based on this imputed income, Justice Goodstein found the husband was not entitled to a temporary maintenance award.  He found the husband was the more monied spouse and not entitled to any spousal maintenance whatsoever.

Conclusion

If you are thinking about getting divorced, don’t retire!father's rights lawyer Long Island

Orders of Protection

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

Elliot S. Schlissel is a father’s rights lawyer.  Elliot has been representing fathers in child support hearings, custody proceedings, 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.