Articles Posted in Child Custody

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Parenting time or visitation schedules vary from family to family.  For the most part, the term visitation has been replaced by the term parenting time but both are still used.  Parenting time or visitation schedules detail when either parent spends time with their children.  First in this article, I will talk about some of the typical parenting time schedules that I encounter and can think of as a Child Custody Lawyer in New York.  Afterwards I will talk about where and how the orders are made.  The possible variations or orders or stipulations about parenting time are endless so please use this blog as suggestive of possibilities rather than as a definitive and exhaustive guide.

Each family is different, so as common as the schedule might be in any particular case, there are nuances which might appear in any one visitation or parenting time schedule.  Some parenting time schedules are not specific at all and simply require that the parents will discuss and arrange for mutually agreeable parenting time in the future.  Other cases have more specific provisions.  Probably the most common parenting time schedule that I see is where one parent has parenting time every other weekend from Friday evening or Saturday morning until Sunday evening or Monday morning.  Often times the order can include a weekly or bi-weekly dinner or overnight visit in the middle of the week to supplement the alternating weekends.  What is inherent in this type of parenting schedule is that one parent is the primary residential custodial parent.  What this means, in layman’s term, is that they live with one parent and have visitation (parenting time) with the other.  Please see our other blog entries and website or call to learn about the different custody arrangements.

Typically, in this aforementioned type of generic schedule, the children will alternate holidays and school breaks between the parents.  Some couples have situations that certain holidays are more important for them.  In that situation one parent may be granted the parenting time for the children always for that holiday.  If the holiday is equally important to both parents and both parents want time with the child(ren) each year then a schedule to determine how that holiday is shared each year might be appropriate.    Usually there is a provision that both parents may interrupt the normally scheduled parenting time of the other to be able to put together one or more weeks vacation time together each year.  A provision is usually included to give one parent priority for selection of vacation time in odd numbered years and the other in even numbered years.   Clauses that require itineraries and contact information for where the children will be staying during vacation times are often included as part of the order. Continue reading ›

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The Family Court in New York has the jurisdiction to hear cases involving allegations of abuse and neglect of children.  They are commonly referred to as “N” docket cases since the docket number starts with the letter N.  Generally the case belongs in the county of residence of the subject child or children.  There is nothing to prevent criminal proceedings at the same time as the family court proceedings, however, the family court cases are intended to be about protecting the children, whereas criminal proceedings are about crime and punishment.  Services might be ordered by the court to help protect a child, improve the family situation or to aid in getting children out of foster care while the case is ongoing.

One of the first acts that a court will take when an abuse or neglect proceeding is initiated will be to appoint an attorney to represent the child or children who are the subjects of the case.  The job of the attorney for the children is to advocate for what the children want.  This is their same role whether they are appointed as attorneys for the children in a child custody case, which are commonly referred to as “V” docket cases, or in an “N” docket cases.  In the case of children not old enough or mature enough to formulate their own opinions of what they want an attorney for the child is permitted to substitute their judgment for that of what the children say they want.  It is the job of the judge to determine what is in the children’s best interests.

Often child custody, abuse and neglect cases proceed at the same time in front of the same judge since they involve the children and what is in their best interests.  I often represent a parent or a relative in such cases.  Many times my client is attempting to get custody for themselves when someone else is facing the allegations of abuse or neglect. Children might be ordered to be removed from their home when an abuse or neglect case is ongoing,  Relatives are supposed to be located and informed that the case is ongoing and that they have the possibility to seek custody, become foster parents, or in cases where reunification with the parents is not necessary or possible, that they may seek to adopt the children themselves.  When there is an appropriate relative to live with, and the children need to be removed from their current home, the court can give that relative custody, place the children with that parent, or in the care of the social services agency to place with the other parent, relative or in foster care when there are not other appropriate options.  Sometimes the court might decide that the child should remain with the same parent despite that the neglect or abuse case is ongoing. Continue reading ›

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Orders of protection can be issued by either the Family Court or the Supreme Court as part of a child custody case or divorce in New York. My previous blog articles concerning orders of protection in family law matters focused on the most common method that orders of protection cases occur against family members, outside of criminal prosecutions, which is called a Family Offense proceeding.  Later in this article I will discuss some of the differences between the orders of protection in custody cases from Family Offense petitions.  First, though, I will outline the order of protection authority given to the courts in child custody cases pursuant to the New York Family Court Act (for family court cases) and the New York Domestic Relations Law (for Supreme Court matters like divorces).

On good cause, the Family Court Act authorizes temporary orders of protection to be issued as part of a custody case. The temporary order may stay in effect for as long as the case is pending.  Under the law, the length of time any temporary order of protection is in effect does not need to be a consideration on how long a final order of protection should be in force.  A final order, or permanent order of protection, can be issued as part of a divorce or custody case to help with or as a condition of the judgment of divorce or custody order.  As the standard is in all child custody matters, whether or not the order of protection is proper would be controlled by the children’s best interests.

The order can require a party to the case to obey certain conditions of behavior like to: stay away from the children or parent; refrain from activities that put a child’s welfare at risk; take an educational class; pay for treatment or medical care that stem from the reasons that require the order or protection; pay lawyer fees of the protected party; not injure a pet of the child or a parent; to give back identification of the other party like drivers licenses, passports, etc.; observe other conditions required to protect. The orders of protection contemplated in this article are between family members, in a custody case, as defined in the law.  Family under the law includes spouses, former spouses, household members, and people that have a child together among other specific situations.  The law also allows the court to give the protected party authority to terminate a lease under the Real Property Law. Continue reading ›

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I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the order that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense. Continue reading ›

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In a word, yes, drug tests can be ordered, but they do not have unfettered discretion to order tests at their whim. The cases in New York have held that when the physical and mental state of a parent is in question the New York Civil Practice Law and Rules can support a test request. Case law helps to outline situations where getting drug tests in custody and family law cases are allowed and not.

The court required hospitals to produce medical records of a mother pertaining to her treatment for alcohol and drug dependency in DeBlasio v. DeBlasio, 187 A.D.2d 551 (2nd Dept. 1992). In that case the records were sought from three different hospitals that were not themselves parties to the case. The reasoning cited by the court for the production was that the mother’s interests in confidentiality were outweighed by the need of protecting the children’s well being.

In the case of Burgel v. Burgel, 141 A.D.2d 215 (2nd Dept. 1988), the court ordered a mother to go to a doctor’s office to give hair samples for drug testing. In this case the father, in a divorce, alleged that the mother was using cocaine. The mother admitted past use but claimed she was currently clean. The court held that in a custody dispute the mental and physical conditions of the parents were at issue and the information was relevant to determine parental fitness and whether the mother was being honest about her current use. The past use of drugs and the children’s best interest were stressed by the court as justifying the test. Continue reading ›

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Claims of parental alienation in child custody, matrimonial and family law cases abound. This article will focus upon parental alienation in the context of child custody and parenting time or visitation cases.  I have previously written about constructive emancipation which is applicable to child support cases.  The ultimate sanction, if parental alienation has risen to a point that the relationship between one parent and a child is irreparable, is to have the child declared constructively emancipated and to terminate child support.  This is the remedy for children of employable age.  For children of less than employable age there is case authority that stands for the proposition that child support should be suspended until visitation with the non-custodial parent resumes.  Please see my earlier blog article which discusses constructive emancipation in detail.

It is important to point out that certain actions that would be characterized as alienation, if they were taken for no reason, might be held by a court to be justified under certain circumstances. For example, protecting a child from abuse, be it physical or mental, can be found to be a proper justification for limiting contact.  What constitutes and does not constitute parental alienation is a judicial determination that is shaped by the presentation of facts through testimony and argument.  Something for both sides to keep in mind is that baseless allegations of abuse can be a reason for a court to find that the accuser puts their interests above the children.  Specifically, though, what is parental alienation?

Parental alienation has been described by psychologists as behavior, whether intended or unconscious, by one parent that poisons the child or children against the other parent. When such poisoning occurs, the children take on mischaracterizations or embellish misrepresentations that a parent teaches them about the other parent.  Interfering with another parent’s visitation or parenting time is one form of alienating behavior.  Continue reading ›

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Previously, I have touched upon the rights of grandparents and non-parents in child custody and visitation or parenting time cases against parents in New York.  In my years of practice in New York City, the surrounding areas, and as a Long Island Child Custody Lawyer, I have needed to deal with these issues a number of times.  The purpose of this article is to further shine a light on the standard that the law outlines that courts should use in deciding these cases.

In order for a parent to be able to prevail against a non-parent to be awarded by a court custody or guardianship of a child, the court must find that extraordinary circumstances exist.  This standard was announced by the New York Court of Appeals in the landmark case of Bennet v. Jeffreys, 40 NY2D 543 (1976) which remains the law in New York today.  Over time, precedents decided since have helped clarify situations in which these extraordinary circumstances are deemed to exist.  The extraordinary circumstances were exemplified as:  unfortunate or involuntary disruption of custody over an extended period of time; surrender; abandonment; persisting neglect; unfitness or comparable situations.  For a non-parent, such as a grandparent, relative or family friend, to be able to proceed with the custody or guardianship case, a court must first find that these extraordinary circumstances exist.  This gives the non-parent what is called “standing” to have the case heard by a court.

If standing by the non-parent is not found to exist in the cases particular circumstances, then the case must be dismissed.  If, however the extraordinary circumstances are found to exist, then the court needs to decide whether the best interests of the child are served by awarding custody to the parent or the third party.  The Bennett v. Jeffrey’s case was guided by the principle that parents have a fundamental right to raise their own children and children have the right to be raised by their own parents, except in certain circumstances.  Continue reading ›

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This article is meant to provide some background about divorce and family law matters in the New York City borough of Queens, New York. As mentioned in prior blog entries, although the statutes are the same for everyone in New York State, there are different rules and procedures that change from County to County and even court room to court room. New York is made up of four Appellate Divisions.  Queens County happens to be located in what is called the Second Judicial Department and therefore the case law coming out of the Second Department is controlling for Queens County divorce and family law cases. The New York Court of Appeals is the highest court in New York. Therefore, case law from the New York Court of Appeals is controlling on Queens County as well as everywhere else in the State. Decisions from the three other judicial departments would be influential if the Second Department has not directly ruled on the matter. Although I practice all around the Long Island and New York City area, which includes both the First and Second Judicial Departments, my office and most of my cases are from areas located within the Second Judicial Department. This familiarity is helpful in my practice as a Queens County Family Law attorney.

Throughout my legal career, I have handled a great deal of cases in Queens County. Since my office is Nassau County, New York, conveniently bordering Queens, it is a short ride to the courts in Queens. Besides Nassau County, Queens and Suffolk are my highest volume geographic areas at this time. First I will discuss the Queens County Supreme Court, followed by information about the Queens County Family court.

Like everywhere else in New York, a person that wants to file a divorce case in Queens needs to use the Supreme Court. The Queens County Supreme Court is located at 88-11 Sutphin Boulevard Jamaica, New York 11435. Issues that arise for couples after a divorce (post-judgment) can be filed and dealt with at the Queens County Supreme Court. Supreme Court Justices are assigned cases that are filed in the Queens Supreme Court. Justices are elected Judges, but, Judicial Hearing Officers (who are usually former judges) may be assigned for trials or a hearing on one or all of the issues. The consent of the parties is usually obtained before sending it to a Judicial Hearing Officer since everyone has the right to have their cases heard in front of a Judge. In Queens, like every other County in New York, incidentally the only issues in a divorce that would go in front of a jury would be a grounds trial. Everything else would be decided by the Judge or a Queens Supreme Court Justice. Grounds trials, particularly, jury grounds trials are rare but they are a possibility. Continue reading ›

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Can the New York courts exercise jurisdiction over a child custody case?  In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.

The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States.  New York’s version of the Act begins in the Domestic Relations Law Section 75.  The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order.  First, a state must meet the definition of home state to be able to make an order.  If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there.  For children over six months of age, the home state is where the child resided for the previous six months.  If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status.  If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.

Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there.  If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction.  The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state.  In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction. Continue reading ›

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Habeas Corpus is another Latin term, used in legal proceedings which means “You have the body”. This blog entry will refer to the use of the term in family law proceedings which, of course, has a different application than in criminal law proceedings which also make use of Writs of Habeas Corpus. Usually, the writ itself is an order from the Family Court or Supreme Court in New York directing someone that has a child to bring that child before the court on a specified date and time. The underlying premise necessary to support an application for a Writ of Habeas Corpus is that the child is being wrongfully held by another. This wrongful detention could be in violation of someone’s custody or parenting time order. New York or Long Island Family Law Lawyers can use Writs of Habeas Corpus as a tool to help their clients in child custody and parenting time disputes.

At times, the Writ might include a temporary custody order, but usually the Writ simply directs the production of the child. Further proceedings can ensue in the court after the production date regarding custody, parenting time, and perhaps contempt. If the person does not comply with the Writ, they will be in contempt and could face the wrath of the court which might include relinquishment of custody, incarceration, and likely a warrant for their arrest for failure to come to obey a court order. Sometimes, once the child is brought before the court, the court might direct the child to be given to the petitioner as they are entitled to custody or to exercise their parenting time. The Writ of Habeas Corpus proceedings often end on the date the child is brought to the court as the Writ is considered satisfied. At other times further proceedings are necessary.

So, what needs to be included in an application for a Writ of Habeas Corpus? The supporting papers should first set forth the relationship of the Petitioner to the children, such as Father, Mother, grandparent, or otherwise. Next, the application should detail that the subject children are in the physical custody of the Respondent and the time since that has been the situation. In cases where the Petitioner legally is entitled to custody, the application should set forth how the Respondent improperly and unlawfully removed or withheld the child from the Petitioner. This might mean that another parent or person took the children without authority to do so or refused to return the children after their allotted parenting time or visitation period. In cases where the Petitioner is not the residential custodial parent of the child(ren), the allegations to be detailed in the petition usually will allege that the Petitioner was improperly denied their parenting or visitation time. Continue reading ›

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