Articles Posted in Child Custody

|

Best Interest Standard

In many legal matters, the focus of a court is often into the past of the parties involved in an attempt to resolve the issues. On the other hand, in a custody case, the court attempts to perceive the future and predict which parent will provide a better environment for the child in question. To this end, the New York courts employ various methods – relying on the use of expert testimony, and examining past behavior to predict future actions. Though the statutory law in custody in New York is somewhat sparse, the Domestic Relations Law 70 provides that there will be no prima facie right to custody for either parent – rather the court must determine solely what is in the best interests of the child.

Though most people are relatively familiar with the “best interests” term, it regularly defies a firm definition. Because cases regarding children are sensitive in their very nature, each case is decided in regards to its own particular merits. However, it’s worth noting that some definitions do remain consistent from one case to the next, and so too do certain factors that courts will consider in an initial custody determination. Following, we will consider a number of factors that are considered by the New York court in establishing the “best interests” of a child. The list that we will discuss is not exclusive by any means, however it will provide a general idea of some of the things courts consider in coming to a decision. Great deference is permitted to the trial court by appellate courts since the trial courts are in the best position to weigh the credibility and testimony in a case(Eschbach v. Eschbach 56 N.Y.2d 167).   This blog will summarize the best interests standard as articulated in the Eschbach case which remains an important case for child custody matters in New York to date. Continue reading ›

|

Family Court In New York

If you find yourself in a position where you need to deal with a family law matter, then you may end up presenting your case at the Family Court in your local county. Venue is usually proper in a County in which one of the parties resides. Regardless of the circumstances, presenting your case within a court setting can be incredibly nerve-wracking and worrisome, which is why I often try to put my client’s minds at rest by discussing the nuances of family court with them beforehand.

A Family Court is the court that is convened to decide upon matters and make orders regarding family law, such as when dealing with child custody and visitation (now called parenting time), orders of protection (family offense cases), support matters, juvenile delinquency cases, abuse, neglect, termination of parental rights, PINS (Person in Need of Supervision), and adoptions. A family court in New York can not get people divorced and do not deal with equitable distribution of marital assets and property claims. Continue reading ›

|

Legal name changes are an important topic for transgender individuals. Today, the world has begun to grow increasingly aware of individuals who identify as transgender. Those who recognize themselves to be transgender do not confirm unambiguously to the conventional notions of female and male gender roles. According to Kidshealth.org, when we consider ourselves to be either a female or male, this can be known as our “gender identity”. Everyone, no matter how young or old has a gender identity – it is the inborn and innate sense of ourselves as a male or female entity.

Transgender awareness has been made more explicit in the news recently too, as Bruce Jenner changed the history of gender awareness through an interview conducted with Diane Sawyer.  According to Jenner, “For all intents and purposes, I am a woman”. Jenner commented that people “look at me differently” seeing a “macho male”, however, “my heart, and my soul and everything I do in life, it is part of me, that female side is part of me. It is who I am. I was not genetically born that way”. Continue reading ›

|

In a recent case decided by the New York County Supreme Court, Baidoo v. Blood-Dzraku, 2015 N.Y. Misc. Lexis 97 (New York County S.Ct. 2015), service in a divorce case through Facebook was ordered as valid service.  Previously, I have blogged about service problems in divorces and service by newspaper publication and other alternative methods. To recap, most people are familiar with the concept of the in-hand delivery of court papers as it has been frequently depicted in movies and television shows throughout popular culture. Generally, courts prefer this form of delivery, as it is often the most reliable way of ensuring that the individual in question has received the papers as intended. In New York, under the Civil Practice Law and Rules (CPLR) Section 308(1) this service is enumerated, and the process server swears an affidavit that they did deliver the paper by hand. After an action has begun, the CPLR permits 120 days for the service to be made.

Unfortunately, the issue with personal service is that in order for it to be accomplished successfully, the plaintiff must have some method of locating the defendant. Even in circumstances where the location of the defendant is known, there are times when it is logistically difficult for a server to gain the proximity required for a personal delivery. Fortunately, the Domestic Relations Law offers a solution for individuals who face these circumstances, permitting plaintiffs to utilize alternative methods beneath the CPLR that does not require an “in-hand” delivery but only if the court orders alternate service is permissible. Despite this, some people still believe that the alternatives expected in these legal proceedings are not current with the modern practices of the times. Continue reading ›

|

Decisions to be made on Custody and Parenting Time                                                

Over the years, I have handled a number of cases associated with custody and parenting time (or visitation), particularly throughout Nassau County, Suffolk County, Queens, New York City and nearby areas. In my experience, I have found that often, the process of dealing with custody and visitation can differ widely from one situation to the next, however, a certain collection of considerations and decisions will need to be made in any case. In any legal matter concerning children, if an agreement is not made, the court will be required to consider the situation and decide these issues according to the best interests of the child(ren). Whether the topics are decided upon in a mediation, litigation, collaborative law case or settlement negotiation, the same topics need to be covered.

Legal Custody and Residency

There are two significant areas when it comes to determining child custody that need to be set forth. The first concerns where the children will live. When a child lives with a particular parent, the majority of the time, according to a court order, that parent is said to have residential custody under the law. The second major concept that needs to be defined through a custody order is who has the capacity to make decisions on the behalf of the child. The parent or couple responsible for decision making under court order are regarded as having “legal custody.” Continue reading ›

|

Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.

We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method. Continue reading ›

|

Over time, the role of attorney for the child in custody and parenting time (visitation) cases has evolved and developed in New York. Their name has changed as well since they are properly called attorney for the child(ren) now whereas the job used to be known as “law guardian”. While many used to believe the role of the attorney for the child was to determine what’s in the best interests of the child, it is clear now that this is not supposed to be their job. The attorney for the child’s role is defined in Rule 7.2 of the Chief Judge in New York.

The rule requires the attorney for the child, like an attorney for any other party in the case (such as mom or dad lawyer’s), to advocate for their client’s position with zeal. If the child is mature enough to be capable of making a knowing, intelligent and voluntary judgment, even if the attorney for the child believes the child’s wishes are not in his or her best interest, they should advocate for what the child says theywant. The trier of fact, be it a judge or a referee, however is required to make decisions on what they determine is in the child’s best interests. So the best interests standard still controls, it however is not the attorney for the child’s job, usually, to advocate for the best interests. Continue reading ›

|

Adult couples involved in romantic relationships in New York, whether opposite sex or same sex, now both have the option to choose to get married in New York or in certain localities enter into a domestic partnership. This blog article will highlight some of the benefits and differences with each. The Marriage Equality Act became law in New York in the summer of 2011 and allowed for gay or same sex marriages to be performed in this state. Prior to the passage of the law, New York recognized same sex marriages performed in other jurisdictions that legalized them, but would did not allow the marriages to take place here.

The Domestic Partnership laws are local laws in many various jurisdictions within New York. This law allows couples, depending on the locality in New York in which the couple works or resides, to register as a domestic partnership if they meet certain criteria. Some localities extend domestic partnerships to only same sex couples or to both opposite sex and gay couples. But, what are the differences between marriages and domestic partnerships? Continue reading ›

|

Today’s blog will be a break from my typical legal analysis of family law issues. Here I focus on tips, facts and suggestions pertaining to the children of the transitioning families that I have picked up in my time working as a matrimonial, family law attorney and mediator in the great state of New York. As usual, when I veer off my exact topic of expertise, I like to throw in a disclaimer that I am not an expert in psychology or sociology. Therefore, I recommend speaking with trained and licensed therapists that specialize in children and family matters about your questions and to verify the accuracy or inaccuracy of anything in this article.

One statement that I am qualified to make is that parents or parties involved in a child custody and parenting time or visitation case, whether it is pursuant to a divorce or family court custody case, are advised not to talk to the kids about the case. In most instances the court will assign an attorney for the child(ren) who has training and experience in speaking with the kids about the matter. Ultimately the court might hold what is called an “in-camera” interview with the child or children before issuing a decision on custody and parenting time. Continue reading ›

|

Do divorce filings increase in the New Year? As a family law attorney, I see a general decrease in actual court appearances and new case filings during the latter half of December, but at the same time there are a lot of inquiries and planning for actions that people intend to take in the New Year. What could account for the lull in December and the increase in the New Year? Some of the reasons are obvious such as, that are holiday parties and vacations being taken by lawyers, judges, and the rest of the world at the end of the year. Because of the holidays, there are less court appearances scheduled. Also, a lot of people are reluctant to begin divorce proceedings or their family law cases during the holidays. It makes sense to try to keep the peace until the holidays are over. Not many people want to distract themselves with a battle at the end of December. People tend to have a lot of family interactions at the end of the year which might explain the family law case slow down.

What happens then in the New Year? I think the cases that normally would have been started had it not been holiday season just get delayed until the New Year. I believe that many could be as a result of New Year’s resolutions. Some people decide that they will not tolerate things as they have been for another year. Also, sometimes the holiday seasons can make family difficulties amplified. Continue reading ›

Contact Information
99 Jericho Turnpike #300-G
Jericho, NY 11753
Phone: (516) 333-6555

ATTORNEY ADVERTISING

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2025, Law Office of Darren M. Shapiro
JUSTIA Law Firm Blog Design