Child Custody

Child Specialists in Child Custody, Divorce, Mediation and Collaborative Cases

May 20, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Matters of family law are almost always more complex when they involve children. This is one of the manyreasons why a large number of parent’s attempt to resolve disputes and concerns through amicable legal methods such as mediation and collaborative law, in an effort to avoid some of the frustration and turmoil that can result through litigation. Sometimes, in order for a mediation or collaborative case to have the most successful impact in any given situation, it may require the input of additional input beyond that given by the neutral mediating party, and any collaborative lawyers present. In fact, many mediators and collaborative lawyers actively advise working alongside other experts during a negotiation-friendly discussion of child custody and parenting time issues whether in the context of a divorce or not.

One of the many valuable experts involved in collaborative and mediation cases for parents, is a child specialist. These individuals are often engaged in an attempt to assist with easing the emotional transition and friction involved in making decisions based on parenting time, custody, and other highly significant family matters. Child specialists are unique in their ability to offer significant value to many cases in the form of additional specialized knowledge, techniques for dispute resolution, and more. While child specialists are referred to most commonly in the context of collaborative law, they can also be used to positive effect in mediation. Continue reading ›

What Are Parent Coordinators in Child Custody Cases?

May 13, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Grueling custody battles between parents are rich with emotion and frustration, which means that they areperfectly poised to become hostile and antagonistic. In most circumstances, the greatest amount of conflict may not even be caused by addressing significant life-altering decisions, but when dealing with the day-to-day agreements of where to meet to exchange children, or how to provide the correct educational and medical care. Because of the significant friction in custody cases, it can be difficult to find a scenario that works well for both parents, and the children involved. However, in New York and Long Island, the presence of a parenting coordinator, as part of the custody and parenting time order, could be the tool required to prompt an amicable agreement for the resolution of future issues.

Usually, the parenting coordinator comes in to assist with decision making issues, after the case is done. After all, if there are two parents voting there could be ties on certain issues. How will the ties be broken? Continue reading ›

When Can a Grandparent Seek Custody in New York?

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

In a 2015 case, Matter of Rumpff v. Schorpp, a New York appellate court heard an appeal regarding grandparents’ rights. The petitioner was the father of two children. The respondent in the case was the children’s mother. Soon after the younger child was born, the Department of Social Services started neglect proceedings against both of the parents, claiming that their drug and alcohol abuse had caused them to fail in providing the children with adequate supervision and guardianship. They agreed to have the children live with their maternal grandmother, also a respondent in the appeal.

Later, the grandmother asked for sole custody. The parties stipulated to joint legal custody for the father, mother, and grandmother, with the children physically placed with the grandmother. In 2011, the father sought physical custody of the kids by filing a petition to modify custody.

The order continued the prior custody arrangement by the agreement of all the parties. In 2013, the father again brought a petition to modify, seeking sole custody. The family court granted him sole legal custody and physical placement. The mother was given parenting time, and the grandmother was given visitation. The grandmother, the mother, and the children’s attorney appealed this decision.

When is a Finding of Emotional Neglect Proper or Not?

April 23, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

CPS ( Child Protective Services ), ACS ( Administration for Children’s Services ), and Judges in New York make determinations to indicate or found cases regarding neglect andabuse of children in New York or whether these determinations should stand. But, when these findings are challenged, when should an emotional neglect finding stand or not? In the State of New York, the law dictates that emotional abuse, including neglect, can be defined by the omissions or acts made by caretakers or parents that result in serious changes to a child’s conduct, cognitive, mental, or behavioral functions. Parents have a responsibility to support the proper physical and emotional development of their children – failure to offer that support, either deliberately or passively, can be a sign of neglect. Under section 1012(f) of the Family Court Act, a maltreated or neglected child is an individual under the age of eighteen who has had their physical, emotional, or mental condition impaired as a result of his or her parents, or caretaker’s action or inaction. The minimum degree of care expected from parents or caretakers according to the New York law, includes:

Supplying the child with adequate education, shelter, clothing, and food.
Providing medical, optometric, dental, or surgical care.
Giving the child proper guardianship or supervision to reasonably prevent potential harm and risk when possible.

One example case drew attention to proof provided for the injuries that a child sustained as a result of neglect. The case determined not only that the condition of the child was legitimate, but also that it could not have occurred within a typical five-year-old, without the presence of neglectful behavior from the parent. In this particular case, the respondent mother was the primary caretaker of a five-year-old who consistently exhibited troubled behavior, an obscene vocabulary, and an obsession with deviant and explicit sexual conduct. Regardless of whether the respondent in question tutored her son towards this behavior, or allowed the traits to take place in an environment wherein she should have been exercising control, the case of neglect was made. Continue reading ›

What Makes a Divorce a Collaborative Law Case?

April 15, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are several different ways to approach divorce. Among the gentlest, yet sophisticated disputeresolution methods is collaborative divorce. The parties in a collaborative divorce enter into a contract (“Participation Agreement”) to negotiate a divorce settlement without involving the court, or a mediator, but rather assembling a team comprised of collaborative attorneys, a neutral psychological professional (divorce coach), and often a neutral financial professional. During the collaborative law process, the parties sometimes engage experts for assistance, such as appraisers.

Among the benefits are more control over the process than you have by going to court, less acrimony and stress, usually less expense and time than a highly litigated case, and the preservation of existing family relationships. In many cases, collaborative law is the best choice for parents trying to protect their children from the emotionally destructive aspects of traditional divorce litigation.

The parties also have the benefit of counsel advice during the process, which they sometimes don’t during mediation (even though people are advised to use review attorneys in mediation). However, critically, if a matter does not get resolved through the collaborative process, the attorneys who represented the parties in the collaborative divorce cannot represent them in the litigation that follows. The rule is intended to allow the divorcing parties to be more honest and direct and posture less. It also ensures that attorneys commit themselves to the collaborative process, rather than abandon it for litigation.

Modification of a New York Child Custody Order Parental Alienation and Interference

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

When making custody determinations, a court is likely to consider whether a custodial parent is likely to encourage the child’s relationship with the noncustodial parent. It is considered in a child’s best interests to have a relationship with both parents. This means that a court will not look favorably upon a custodial parent who interferes with children’s relationship with the noncustodial parent. The noncustodial parent may have grounds to request a modification of a child custody order if the custodial parent tries to harm his or her relationship with the kids.

In Musachio v. Musachio, a New York married couple stipulated to a child custody settlement that was supposed to survive and not be merged into any divorce judgment that followed. The parties had agreed that they would have joint custody of their four children. The defendant (the mother) would have residential custody.

In 2008, the court granted the father’s application to get temporary sole custody of the four children. It also suspended his child support obligations based on information that the mother had interfered substantially with his relationship to their children.

Can You Include Child Custody and Support Terms in a New York Prenuptial, Postnuptial or Separation Agreement?

March 1, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

New York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

The agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240. § 240 provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York can’t conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when they address education, child support, and care. However, judges make a final determination on child custody and support based on the child’s or children’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce. A separation agreement, however, which is in proper form, can deal with child custody and child support terms. The difference between a separation agreement and a postnuptial agreement in this context being that either when the separation agreement is made or very soon thereafter the parties must being living apart and intend to do so. Of course custody, parenting time and child support terms are properly included and should be part of a stipulation of settlement settling a divorce.

Paternity, the Presumption of Legitimacy and Equitable Estoppel

February 4, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In cases of paternity in New York, a child that was born during marriage is legally presumed to be abiological product of that marriage, and this presumption historically was one of the most persuasive in law. However, it’s important to note that this presumption is still subject to the sway of reason, though statements have varied regarding the sufficient evidence required to rebut such a presumption. For instance, in the context of a case wherein a child is born during a marriage, the presumption should not fail unless there is evidence to demand reconsideration. In fact, if a husband and wife live together, legitimacy is often presumed, and even if the couple are living apart, the court can provide a fair basis for the believe that a child was born as a product of times the couple were brought together.

During recent years, case law that enunciates the presumption of legitimacy in paternity cases where a child is born during a marriage has been pulled into question. This isn’t necessarily because the reasoning and logic behind that case law has changed over time, but because the passage of time have delivered new updates in technology and science that make determining legitimacy accurately, more possible. In past cases, one of the primary – if not the only determining factor in the application of a presumption of legitimacy in court was access between the husband and wife. However, as we have progressed further into modern times, DNA tests and blood tests have also acquired a new ability to sway reason. Because of this, while the presumption of legitimacy still serves a laudable purpose, it remains to be just another legal presumption that can be used when conclusive evidence to the contrary is not available.

When is it Appropriate for A Court to Order Joint Legal Custody?

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

In the courts of New York and Long Island, as well as legal institutions throughout the world, it’s notuncommon for legal terminology to leave parents confused when it comes to matters of custody. Indeed, in some cases, parents or guardians may be left feeling uncertain about the level of custody they have – and what certain orders imply regarding their decision making authority in reference to their children. Some people even suggest that the statutes employed in New York are harder to understand than those in other states, as they do not necessarily make direct reference to physical or legal custody, but only the word “custody” which can be taken to mean the concept of total custody over a child or children. However, although it can be difficult to understand, most New York custody orders I have been involved with, have addressed the varied aspects of custody, from legal and physical custody, to sole and joint orders, even if the terms aren’t easy for parents to follow.

More often than not, in New York courts, the term “joint custody” will refer to joint legal custody. I try to ensure that my clients know this when going into a case, as legal custody is significantly different to “physical” custody. Legal joint custody implies that both of the parents involved will have the right to decide upon important issues regarding their child – such as educational or medical matters. When a divorce or custody resolution is amicable, parents may voluntarily agree to a joint custody agreement and a judge will almost invariably approve it. However, most New York courts will not force joint parenting on a family. Indeed, when parents must approach the court to have a judge determine what is best for the custody of a child, the implication is that the couple does not get along well enough to make decisions together that are appropriate for their child. Continue reading ›

When Can New York Grandparents Request Child Custody?

January 14, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.