Child Custody

When Should a New York Court Refrain From Ordering Forensics in Child Custody Cases?

October 7, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In an overwhelming number of cases, parents agree to a child custody arrangement without involving the court. However, some child custody cases are brought to court because parents are unable to agree. In those cases, the Supreme Court or Family Court is supposed to allocate to each parent decision-making, care-taking, and access to the child, making these determinations based on what would be in the best interests of the child.

Custody determinations related to best interests depend largely on the court’s assessment of the parties’ credibility, character, and temperament. The higher courts are not supposed to interfere with these determinations, made by a trial court, unless they lack a sound and substantial basis in the record.

Under New York Family Court Act § 251, the court can order anyone within its jurisdiction and the parent or other person legally responsible for the care of a child within its jurisdiction to be examined by a physician, psychologist, or psychiatrist designated for that purpose if the examination serves the purposes of the act. This person can provide a forensic evaluation that allows the court to determine which custody and visitation arrangement would be in the best interests of the child.

When Should a New York Court Order Forensics in Child Custody Cases?

September 30, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Child custody and time-sharing arrangements in New York are determined based on the children’s best interests. In some cases, a forensic evaluation is ordered. This may include general and specialized psychological testing and clinical interviews of the parents and children. In some cases, collateral information is also gathered, and home visits are made.

Forensic evaluations are not always necessary, but they may be appropriate in cases in which there are sharp factual disputes that affect the final determination of where a child will live and which kind of custody, parenting time or visitation arrangement is in the child’s best interest. Generally, the court will look at the circumstances of the parents and child and see whether there are particular issues that would warrant an in-depth inquiry. The court is supposed to order forensic evaluations sua sponte (on its own motion), even if neither party expressly requests it. The evaluator is typically appointed based on recommendations.

Issues that might necessitate a forensic evaluation may include relocation issues, a parent or a child’s emotional problems, allegations of alcohol abuse, or facts that indicate a custodial parent might undermine the relationship between a child and the other non-custodial parent. In Matter of Shanika M. v. Stephanie G., for example, Stephanie was the aunt of a child that her domestic partner, Shanika, and she were taking care of but never formally adopted. The parties separated when the child was two years old, and the child continued to live with Stephanie.

The Primary Caretaker Standard in New York Child Custody Law

September 10, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Child Custody disputes and Divorces are complicated at the best of times. Often, legally breaking down a relationship becomes moredifficult when children are involved. When a mother and father choose to separate or divorce, they not only have to think about the steps that should be taken to improve their chances of pursuing their own best interests, but they also should think carefully about the best interests of their children. That is the standard that a New York court would use.

While, in an ideal scenario, fathers and mothers seeking a divorce would carefully come to a decision about custody agreements, child support, and parenting time or visitation together, using a mediation method or collaborative law – without the strain of battling the issue out in court – family law is not always this simple. In some cases, a New York Supreme Court or Family Court judge will be forced to step into the scenario and figure out which parent should be awarded primary physical custody. In these cases, there are many factors for a judge to consider when putting the best interests of a child first, and one is the concept of who can be defined as the “primary caretaker” for the children. Please note that the primary caretaker status is not determinative of the best interests of the children, rather it is one of the many considerations that can be taken into account. During this blog, I will discuss which details can be provided to show who can be regarded as the primary caretaker of a child, and what it means to be a primary caretaker. Continue reading ›

Evidence Time Period for Modification of a Stipulation to a Child Custody Order in New York

September 3, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When you apply for a modification of an earlier order in a New York child custody dispute, you’ll have to present evidence showing a change of circumstances to justify that the modification is necessary to protect a child’s best interests. If you stipulated to the earlier order there is case law that stands for the proposition that you can present evidence of any changes from the time of stipulation.

Although you should show that the substantial change occurred since the issuing of the order, the court may consider all relevant factors related to the best interests of the child when determining child custody, sometimes, even, including the behavior of the parents before and at the time of stipulation. In determining whether a change in circumstances warrants the modification of a custody arrangement, the court will look at whether the change implicates the fitness of the custodial parent or affects the nature and quality of the noncustodial parent’s relationship with the child. There may be a time lag between a stipulation and the court’s issuance of an order, but this should not be a lost period for the purposes of presenting evidence to prove that the modification is appropriate.

For example, in the Matter of MMH v. William DH, the court considered a New York mother’s request for a modification of an earlier order. She wanted an order for sole custody and an order that would allow her to move to another state. The father opposed the application for these orders.

Evictions of Family or an Adult Child in New York

July 28, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave. If there is domestic violence, a court might have the child leave via a stay away order of protection. If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.

However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.

In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.

Can You Make Secret Videos to Use in a New York Child Custody, Divorce or Family Law Case?

July 17, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

During a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

Recording Phone Conversations in New York for Use in Child Custody or Divorce

July 10, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s oryour spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

How Do You Serve Process in Family Court Child Custody Cases?

June 25, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When a custody case is brought to a New York family court, the law requires the papers to be served to the otherside, often in the form of a summons and petition. It is up to the parent that is filing the case to ensure that the other parent in the custody argument receives the papers – generally through in-hand delivery. Ensuring the service of papers is essential, as the law recognizes that there are few things more important in child custody cases than ensuring that every person entitled to make a claim on the behalf of the best interests of the child will receive notice of the proceedings taking place. Importantly, the law dictates that services of a petition and summons should be given at least eight days before the first court appearance is required of the other party. However, in practice, it is worth noting that regardless of how a respondent may receive the notice to attend court – so long as they attend and admit that they were served the papers, then the court will be given jurisdiction, and have the right to proceed with the case.

In cases of custody, visitation, or other matters brought before the family court, I often find that the case is started using an order to show cause, instead of a summons, and a petition. While the petition underlines what the person presenting the case to the court wants to address, the order to show cause specifies how service should be addressed. When service is directed pursuant to the Order to Show Cause, how to serve the papers is spelled out by the judge who signed the order. It takes the guess work out of service, however, it then becomes important to precisely comply with the method and timing of service that is directed. Continue reading ›

Parent Education, Child Custody, Visitation and Parenting Time

June 18, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Issues of parenting in child custody and visitation cases are often very complicated, as they consider a wide range offactors when determining the best interests of a child. After all, it is the responsibility of the New York court to ensure that their decisions regarding custody orders are made according to the needs of the specific children, or child involved in the case. Because of this, before a final decree is declared in a dissolution, divorce, or custody case, the court of New York might require parents to complete a course of Parental education which may be different and cover different matters depending on the nature of your circumstances.

Although the lessons can be different in parental education classes in regards to such things as format, the general idea of all parent education classes is to help parents separating from a partner or spouse to better understand the way their divorce from an ex-partner might affect their children. This education therefore ensures that the parents have the skills and resources necessary – regardless of whether they are a non-custodial, or custodial parent – to provide the appropriate care for their child, and help them move through a transitional period in their lives with as little distress as possible. Continue reading ›

Should There Be Overnight Visitation or Parenting Time on School Nights?

June 12, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

This blog article will discuss the pros and cons of overnight parenting time to the non-residential custodial parent onschool nights. Discovering a schedule for parenting time or child visitation that works for both parties involved in a divorce or child custody case, as well as the children in question can be one of the most important things a single parent does. After all, child custody cases or divorce is difficult enough upon existing family dynamics, without the confusion of an ever-changing and disruptive visitation schedule adding extra problems into the mix. Whether drafting an initial example for a possible parenting time plan, or attempting to make sense of the schedule that the court has presented to you, it’s crucial to remember that different scenarios work better with different circumstances. Ultimately, the visitation that is ordered by the court, and the plans you come up with through mediation and other measures, should reflect the best interests of the children.

Although each family is unique, there are some arrangements in the world of custody that have gathered more popularity than others – remaining a favorite of many family court counselors and parents who choose to develop their own parenting plans. Indeed, I often see many parents opting for the most common “alternating weekend” schedule, with some modifications here and there designed to cater for specific families. However, parenting time schedules are much more flexible than you might think, and there are other options available when it comes to meeting the individual needs of each unique family. For instance, you might find that your ideal schedule allows for extended weekend visitations that permit the children to have more time with the non-custodial parent. On the other hand, you might even look into the possibility of mid-week overnight visitation. However, sometimes that might not be in the best interest of the children. Whether or not overnight visitation on school nights is appropriate really depends on the specific family. Continue reading ›