The Trial of a Custody Case – Part I

July 29, 2014 By

father's rights lawyers on Long IslandWinning 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.custody litigation attorneys

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What To Do If Your Children Are Taken By Child Protective Services – Part I

July 14, 2014 By

father's rights advocateIf your child is taken by Child Protective Services the first thing you need to do is to hire an attorney who has extensive experience in litigating child seizure cases with Child Protective Services. Child Protective Services seize children when they feel the children are in danger of being harmed, abused or neglected.

There are three different trials that can be undertaken to help return your children to you.

Detention Hearing

After a child is seized by Child Protective Services, you can demand a detention hearing within 72 hours. Your attorney should immediately demand this hearing. You should not consent to the detention of your child. It may be suggested to you by your attorney that you wait until the jurisdictional hearing in 30 days to present your defense. Don’t go along with this! Demand a detention hearing immediately.

It may be claimed challenging the detention will hurt you in the long run. Don’t believe it. One of the primary reasons for demanding a detention hearing within 72 hours is that Child Protective Services will have difficulty putting their case together for trial at this point.

This is an excellent opportunity for your attorney to help you have your children returned to you. This also gives you an opportunity to get in front of a judge and hear the allegations made by Child Protective Services which are the basis for removing the child from you. If you fail to litigate the issue of the detention of the children by Child Protective Services, you are creating a problem for yourself. The fact they have your child and are keeping your child will become the law of the case. When you demand a detention hearing you may be offered a compromise arrangement by Child Protective Services. Unless you are guilty of the allegations they made against you, do not make a deal. Move forward with the detention hearing. If Child Protective Services has your children, make sure your attorney brings an application to the court for visitation with your children. If the court wants to leave the visitation arrangements to a caseworker, object to it. Tell them you want a court order with regard to visitation concerning your children.

The attorney representing Child Protective Services may request to the court the jurisdictional hearing and the dispositional hearing be held at the same time. Have your attorney object to this. Each of the hearings gives you an opportunity to get your children back. You are better off with two opportunities to get them back than only one!help dealing with CPS and ACS

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The Number of Stay at Home Dads Increases

June 30, 2014 By

father's rights lawyerThere are approximately 2,000,000 stay at home dads in the United States. This is pursuant to the Pew Research Center. The large majority of stay at home dads aren’t working because they are taking active roles in raising their children. In 1989 only 5% of stay at home dads were involved in raising their children. Today, more than 20% of the stay at home dads are the primary parent responsible for their children’s needs.

Illness, Unemployment and Other Factors With Stay at Home Dads

The proportion of stay at home fathers who are either disabled, unable to find work, or sick has decreased from approximately half of the stay at home dads in 1989 to about 1/3 of the stay at home dads today.

Stay at Home Dads and Father’s Rights

As women have become more successful in the workforce, more and more women are busy developing successful careers. Having a successful career and being the primary caretaker of the children usually does not work out well. So successful business women need the comfort of knowing a loving parent is staying home with the children and meeting the children’s needs. Should there be a break up in the relationship between the mother and father, stay at home dads have a significant argument to become the residential custodial parent of the children. This will give the children continuity in their lives. This is also the argument which women have been making to become the primary residential custodial parent for a century!

Elliot S. Schlissel is a father’s rights lawyer who has been representing fathers in custody cases for more than 45 years.advocate for fathers in custody cases

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Boyfriend’s Parental Rights Maintained

June 14, 2014 By

father's rights lawyerIn a case of first impression, Matter of A.S. v. B.H., a mother brought an application seeking to set aside an acknowledgment of paternity which had been signed by her boyfriend. The mother claimed after the acknowledgment of paternity was executed, she performed a home DNA test and found out the boyfriend was not the child’s biological father. The mother claimed the child, who was three years old, had special needs and was incapable of bonding with the father. She therefore claimed the father should have no parental rights with regard to the child.

Child’s Bonding with Father

Family Court Judge Michael Hanuszczak found the mother’s argument concerning the child’s bonding ability, “exaggerated and self serving.” He also found her assertions concerning the issue of bonding to be speculative. He went on in his decision to state “under [the mother’s] line of reasoning, a special needs child…would be denied a father if the mother did not lend her approval to the relationship.” He further stated “in cases involving the best interests of a child the court looks beyond any limitations of the child to determine whether a parental relationship exists.”

Family History

The mother and boyfriend had a relationship from time to time. The boyfriend had signed an acknowledgment of paternity when the child was born in December 2011. The mother was unsure of whether the boyfriend was actually the biological father of the child. There was testimony that showed the boyfriend was involved in the raising of the child during the period of time the parties lived together. The boyfriend and the child developed a relationship with each other until such time as the boyfriend’s relationship with the mother soured. She then cut off his relationship with the child.

The Judge’s Decision

Judge Hanuszczak in his decision, ruled it was not in the child’s best interest to vacate the acknowledgment of paternity. He also saw no reason to order the child, who had bonded with the boyfriend, not be allowed to have a relationship with the boyfriend because a situation had been created where it was in the child’s best interest to maintain that relationship. The boyfriend was the only father figure this child knew. The attorney for the boyfriend stated “my client was able to show that he was the sole father figure in this child’s life and to remove him would destroy the parent child relationship.”

Conclusion

This decision is a victory for father’s rights.parental rights advocate

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New York Family Court Keeps Jurisdiction Over A Child in Virginia

June 10, 2014 By

father's rights attorneysAn appeals court (Third Department in upstate New York) has recently held pursuant to New York Domestic Relations Law section 76-a, a Family Court located in New York State had continuing jurisdiction over a child until neither the child nor the parent of the child had a significant connection to the State of New York and there was no longer substantial evidence in New York State concerning the child’s protection.

History of the Case

Angela Lawrence and Guy Belcher had two children, a son born in 1999 and a daughter born in 2001.  They were divorced in the State of New Hampshire in the year 2005.  After the divorce, Guy Belcher moved to the State of New York.  He brought a custody case in the year 2007.  Pursuant to the decision in the custody proceeding, he received custody of his son and visitation with his daughter.  The daughter thereafter moved to Virginia to live with her mother.

Belcher eventually sought sole residential custody of his daughter in 2011.  In his petition for custody, Belcher claimed his daughter was being physically abused by her stepfather.  He also claimed the stepfather had physically abused his son while his son was visiting with his mother in Virginia.  Family Court Judge Courtenay Hall initially awarded the father temporary custody of the daughter but thereafter overruled herself.  She found the court in New York lacked jurisdiction to make any determination with regard to the case.  Guy Belcher appealed to the Appellate Division of the Third Department.

Appeals Court Decision

The appeals court held “initially, that the Family Court erroneously found, because its prior order addressed custody only with respect to the son, that the court did not have continuing exclusive jurisdiction as to the issue of custody of the daughter. ‘Child custody determination’ is defined, however, as ‘a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child’.”  This is pursuant to Domestic Relations Law section 75-a.

The appeals court took the position since a New York Family Court had entered a ruling with regard to visitation in the year 2007, it continued to have exclusive jurisdiction with regard to this matter.  The court cited in its opinion, the daughter had continued to visit with her father in New York during vacations and holidays.  The court’s decision stated “the son allegedly witnessed the abuse committed upon the daughter and was himself the victim of abuse and neglect.”  “Furthermore, the father witnessed the bruising and other injuries suffered by the daughter, and possesses evidence regarding a conversation he had with the mother following the incident in which she purportedly stated that the physical abuse was ‘no big deal and well deserved’.”

Conclusion

In the end, the appeals court simply felt New York was the “more appropriate and convenient forum” to make necessary decisions with regard to this case.advocate for father's rights and custody

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Why Do It Yourself Divorces Are a Bad Idea

April 21, 2014 By

father's rights lawyersThere are a number of companies advertising on the internet do it yourself divorces. These companies are usually run by paralegals or individuals with computer experience. Generally the individuals involved with these companies are not lawyers. The companies provide forms which they claim were developed by attorneys. They claim that these forms are all you need to handle your own divorce.

Do It Yourself Divorce Forms Not Appropriate in All Cases

The forms by the do it yourself divorce companies may be accepted by some courts. However, these forms do not provide a divorce specifically designed for the circumstances of you and your family. These do it yourself divorce companies do not provide legal representation or legal advice. Sometimes by utilizing these forms you can do more harm than good to your family situation. Numerous individuals who have used these pre-prepared forms have made significant mistakes that cost them money, lost custody of their children, and resulted in their being forced out of their home.

Amicable Divorce

The large number of couples using these divorce forms are generally on good terms. They use these forms with the hope of saving money. However, very simple, uncontested divorces are those which are the least expensive to hire an attorney to handle.

Protecting your assets, receiving custody and/or visitation with your children, keeping your home, are among the more serious issues that you should utilize an attorney to protect your interests regarding. There are numerous assets subject to equitable distribution in divorce cases. These assets include homes, individual retirement accounts, 401(k) plans, pension plans, 403(b) plans, businesses, professional licenses, stocks, bonds and all types of other assets. Using pre-prepared divorce forms won’t help you protect your rights to a portion of these assets.

Medical Insurance

Medical insurance can be expensive. There are specific rules in New York with regard to each spouse having availability of medical insurance in the event of a divorce. Medical insurance is also important for your children. Divorce kits won’t help you concerning this issue.

Hidden Assets

Has your spouse provided you with information with regard to all of his or her assets? You are entitled to this information. You are entitled to receive a net worth statement from your spouse disclosing all of his or her assets.

Debts are another issue in a divorce. Who is going to pay the credit card bills, the personal loans, and the car loans? The divorce laws in New York deal with the allocation of these debts. An attorney who handles divorces would be in a position to see to it that your rights are protected concerning issues involving the payment of debts.

Child Support, Spousal Maintenance, Visitation and Custody

If you have children it is extremely important to protect your children’s rights to live up to the standard of living they experienced during the course of the marriage. Custody issues and visitation issues are very complex. If your spouse gets custody of your children will she be able to move to California, New Zealand or Puerto Rico? A properly drafted settlement in divorce will see to it that your spouse cannot move the children so far away that would interfere with your visitation.

There are numerous other issues such as Social Security benefits, Medicare, Medicaid, college expenses for children, child care expenses, day camp expenses, uncovered medical, dental, orthodontia, and so on.

Elliot S. SchlisselConclusion

I hope this article has opened your eyes as to why attorneys are important in representing clients in divorces.

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Husband Unsuccessful in Setting Aside Child Support Provisions in Divorce Agreement

April 17, 2014 By

father's rights attorneysA husband brought an application to rescind and declare null and void the portions of a parties’ settlement agreement which dealt with child support. He claimed the amount of child support in the settlement agreement was unsustainable and overreaching. The wife in this case brought a cross application to declare that the agreement was enforceable.

Judge Lawrence Ecker sitting in the Supreme Court Divorce Part in Westchester County stated in his decision the agreement was negotiated over a period of years. There was a mediation concerning issues involving custody, child support, equitable distribution, and spousal maintenance.

Capping Child Support Payments

The husband presented arguments that he was not properly advised that a court could cap child support payments. The attorneys for the wife claimed the husband did not properly assert allegations of fraud or duress in his motion to set aside the settlement agreement and therefore he was actually arguing that he was misled by the mediator and his attorney.

Husband Participated in Negotiations

The court took into consideration the husband was a smart businessman and a financial expert. Judge Ecker found the husband participated in the negotiation of the settlement agreement. The husband’s emails were presented in support of these allegations.

Judge Ecker also noted in his decision there was no obligation for a judge to cap the combined parental income at $136,000 or any other specific amount. The court in its decision found the husband had obtained competent counsel. His attorney had actively participated in negotiations with regard to the settlement agreement. The husband had voluntarily entered into the agreement and the agreement was valid and enforceable. The court rejected the husband’s claim in its entirety. The court held the wife had established she was entitled to a judgment of divorce, the stipulation of settlement was valid and enforceable and therefore granted her summary judgment motion for a divorce.

father's rights advocateConclusion

The husband made a good try at setting aside the agreement but unfortunately his argument was weak and not substantiated by statutes or caselaw.

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Family Court Cannot Amend Criminal Order of Protection That Didn’t Deal with Custody or Visitation

April 1, 2014 By

father's rights lawyerAn issue was presented as to whether a Family Court judge could modify a Criminal Court Order of Protection. The reasons for modifying the Order of Protection did not relate to custody or visitation issues. Upon review, the Family Court stated they did not have the authority to modify this Order of Protection.

The Order of Protection

An Order of Protection had been issued by a Family Court Judge in Westchester County. The husband was required to stay away from the wife and the marital residence. However, the Family Court Order had a provision which authorized the husband to live in a basement apartment located at the marital residence. There was a claim the husband violated the Order of Protection. A Town Justice had issued a new Criminal Court Order of Protection. This Order of Protection prevented him from having any contact whatsoever with his wife. Within the confines of this Criminal Order of Protection there was terminology which required that he stay away from her home. Unfortunately for the husband, the Criminal Court Order of Protection did not state he had a right to continue residing in the basement apartment located at the marital residence.

Family Court Refuses to Intercede Regarding Criminal Court Order of Protection

The husband brought an Order to Show Cause to the Family Court. He asked the Family Court to intervene and allow him to move back into the basement apartment at the marital residence. The Family Court issued an order saying it did not have authority to modify the Criminal Court Order. The Family Court took the position they could only modify Orders of Protection that dealt with custody and visitation issues concerning children of the parties.

helping fathersElliot S. Schlissel is a father’s rights lawyer. For more than 45 years, Elliot and his aggressive, dedicated attorneys have been representing fathers regarding orders of protection, child support, child custody and visitation issues throughout the Metropolitan New York area.

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Court Rejects Business Expenses Allegedly Incurred by Husband

March 27, 2014 By

father's rights attorneysJustice Duffy sitting in a Supreme Court Part in Westchester County recently ruled a man had to pay his ex-wife more than $282,000 in back child support and spousal maintenance payments. Judge Duffy determined the man had improperly taken personal expenditures including, but not limited to, a mountain climbing trip to Mount Everest as a business expense. Judge Duffy ruled the man had been artificially reducing his income from the years 2007 to 2012 to avoid paying the appropriate amount of child support and spousal maintenance to his ex-wife.

The expenses written off by the man included a 2010 three week trip to train to climb Mount Everest. The man had claimed this was related to his work concerning marketing mountain climbing gear. The judge found the husband’s explanation for the trip to be “not plausible.” She took into consideration, with regard to his writing off this trip, he was the only shareholder, only board member, and only officer of the company, which he created in 2007, that wrote off the expenses. Judge Duffy also found the husband had written off expenses related to a trip to Israel in 2007. This trip coincided with his son’s Bar Mitzvah in Israel. The man claimed during the trip to Israel he had met with representatives of an Israeli clothing company.

Corporate Funds Used to Pay Husband’s Lawyers’ Fees

The man had admitted to the use of corporate funds to pay his lawyer’s fees to litigate this post divorce legal action. The husband testified the entire amount of his lawyer’s fees in the case, which was $20,000, was paid for by corporate funds.

Husband Must Pay Child Support and Spousal Maintenance

Judge Duffy held the ex-wife was correct in alleging her former husband must pay child support and spousal maintenance payments pursuant to the divorce formula in her 2005 divorce agreement which included the expenses the husband wrote off.

The man tried to receive a credit of $7,000 he paid from corporate funds in 2010 to his sons who were aged, at that time, 19, 15, and 10. He claimed those funds were related to business related positions maintained by his children. With regard to this issue, Judge Duffy held “a non-custodial parent is not entitled to offset any voluntary payments made for the benefit of the children against the support he is required to pay to the custodial parent.”

Conclusion

protecting fathersBusiness expenses should be real business expenses and not be created to hide income thereby reducing a party’s support obligations.

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Husband Ordered to Pay Wife’s Attorneys Fees for 12 Day Trial

March 20, 2014 By

Josh Tope had brought a divorce action in November 2011 against his wife. He had worked as an engineering consultant earning $46,000 per year. He had previously worked as an engineer earning $90,000 per year. He gave up his job to manage real estate. He presumed this would be more lucrative. It turned out to not be lucrative at all.

The Trial

There was a trial before Judge Patrick Leis, sitting in a Supreme Court Part in Suffolk County. Judge Leis ruled Mr. Tope had “engaged in obstructionist conduct”. This conduct caused the trial to last twelve days. As a result of his obstructionist, inappropriate conduct, Judge Leis ordered he pay his wife’s attorneys fees.

Judge Leis stated in his opinion, “this case highlights the difficulties that arise when one party uses their self represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney.” Judge Leis’ position was the divorce trial should have lasted no longer than four days. Judge Leis went on to state, “simple justice dictates that the defendant who chooses to function from a position of anger and resentment not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees.”

Trial Issues

The issues at trial solely dealt with outstanding debts such as mortgages, credit cards and legal fees. Prior to the trial moving forward, Tope requested Judge Leis recuse himself from handling the trial. Tope threatened to complain to the Commission on Judicial Conduct if Judge Leis did not step down from handling the case. Judge Leis did not step down finding Tope’s request to be frivolous.

Inappropriate Action at Trial

Judge Leis found Tope acted in an aggressive, inappropriate manner during the course of the trial. He ignored the Judge’s rulings, and he failed to follow the judge’s instructions. He shouted at the plaintiff’s attorney in an aggressive, hostile manner. Judge Leis took the position Tope took this action to punish his wife and run up her attorney’s fees.

Judge Leis ruled despite the fact Tope was not earning more than his wife at the time of the trial, he had the potential to earn $90,000 per year. The judge therefore imputed $90,000 a year as imputed income to Tope and found he was in a superior position based on his imputed income to pay for the wife’s attorney’s fees.

Conclusion

It is not a good idea to misbehave in a courtroom and anger the judge.

protecting dads and kidsElliot Schlissel is a father’s rights lawyer representing fathers on divorces and Family Court cases throughout the Metropolitan New York area.

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