Articles Posted in Child Custody

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Paternity is a legal declaration that someone is the father of a child in New York. The legal recognition of paternity is required under the law for the establishment of many rights and obligations such as for custody, parenting time, child support, and inheritance to name some of the more common. What sounds like it should be a clear cut determination is not always so straightforward. Since New York has finally recognized same sex marriages, paternity and parentage is a developing area for same sex couples. There are complexities as well for opposite sex couples which require skills for a New York City, Long Island, and Nassau County Family Law Attorney to properly handle.

For example, a married man is presumed, under the law, to be the father of a child born to his wife. Therefore, unless and until there is a legal declaration that he is not the father, or that someone is the father, the man that was married to the mother at the time of the birth of the child is legally the father. If another man files a paternity case concerning the child, the presumed father must receive notice for the case to be able to proceed.

Unmarried parents may establish paternity by both parents duly executing an Acknolwedgement of Paternity which is then recorded with the child’s birth certificate. Recorded Acknowledgments of Paternity are the equivalent of a court order of paternity or order of filiation. Within sixty days after the signing of the Acknowledgment of Paternity either party may file a petition in a New York Family Court to vacate the acknowledgement. After the sixty days, either party can still file a Family Court petition to vacate the acknowledgment but there would need to be fraud, duress, or material mistake of fact. The foregoing rules are applicable to parents that are 18 or older at the time of the signing of the Acknowledgement. There are different time period rules applicable to parents under the age of eighteen of the signing. Continue reading ›

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Neglect or abuse allegations come up frequently in child custody matters. The purpose of this blog entry is to discuss some of the nuances of how abuse and neglect accusations come into play in a custody case. Like me, Long Island Child Custody Lawyers and attorneys that handle cases in and around the New York City area acquire this information through years of practice.

A notable procedural matter in the New York Family Courts concerns when an abuse/neglect case is pending at the same time as a custody case involving the same parties. In most instances, the custody case cannot be resolved until such time as the abuse or neglect case is completed. Therefore, the custody case usually will be assigned to the same Judge that has the abuse/neglect case.   The custody case will then follow along with the abuse or neglect case.   In the New York family courts an abuse/neglect case is commonly referred to as an “N” docket case as the docket number starts with the letter “N”. Custody/visitation cases (parenting time) cases in the family court are called “V” dockets as the docket numbers in those cases begin with the letter “V”.

Often, an N-docket case might be resolved if the Respondent in the N-docket case agrees to V-docket custody be given to the other parent or petitioner in the custody case.   What this means is that the County or protective services agency that is proceeding with the case against the Respondent will request to withdraw the N-docket case if they are satisfied that the child is safe with the other parent or other party in the V-docket matter. If there is not an agreed upon resolution, and the N-docket case proceeds to a hearing, the Judge that is listening to the evidence on the N-docket case can consider whatever evidence is adduced at that hearing when deciding the V-docket child custody cases. Continue reading ›

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Each County has some particular nuances that make practicing divorce and family law a little different in each venue.  Although most of the same laws are applicable throughout the state, besides differences in geography, each court, as well as each judge has their own rules and procedures.  As a New York City, Long Island and Nassau County Family Law Attorney, I have had the opportunity to see geographic differences in my practice.  Although I do cases all around the area, my highest volume at this time is in Nassau County.  The purpose of this blog entry is to provide information about divorce and family law practice in the Nassau County Supreme Court and Nassau County Family Court.
Separation proceedings, divorces and post judgment divorce proceedings are the types of cases that we mostly handle at the Nassau County Supreme Court.  The Supreme Court of Nassau County has an address of 100 Supreme Court Drive Mineola, New York 11501.  Matrimonial cases are usually assigned to a court room at the Nassau County Supreme Court Matrimonial Center, which is located at 400 County Seat Drive Mineola, New York 11501.  Divorce cases are initiated by purchasing the Index Number at the Nassau County Clerk’s office which is located at 240 Old Country Road Mineola, New York 11501.  All the legal documents on file for the Supreme Court cases become part of the records maintained at the Nassau County Clerk’s office.

At the Nassau County Matrimonial Center a case is assigned to a:   Justice of the Supreme Court; Judicial Hearing Officer; or a Special Referee.  There are mediation services to help aid in resolution of matters to minimize the litigated issues.  There is a Model Custody part at the Nassau County Matrimonial Center specifically designed for child custody and parenting time disputes.  I frequently find myself at the Nassau County Supreme Court, which is less than five miles from my office, whether it is to follow up or appear on one of my cases. Continue reading ›

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Custody trials can be a challenging part of a divorce or post-judgment divorce case in the Supreme Court where there is a disagreement over the custody and parenting time of a child.  A custody and visitation (parenting time) case can also proceed to trial in the Family Court.  Although the procedures to get to trial and other aspects of the case might have differences between the Supreme Court and Family Court, the actual trial on the custody and visitation of the children fundamentally will be the same in the two New York courts.  I am a Long Island Child Custody Attorney and have experience handling Supreme Court and Family Court child custody cases all around New York City and Long Island.

There are two general categories of custody trials that I am going to discuss in this blog entry.  The two are an initial custody determination and a modification of a prior order (writs of habeas corpus, contempt and enforcement proceedings will be discussed in later entries).  In both categories, the Judge or Trier of Fact (sometimes called a Referee), must make the final decision on what is in the children’s best interests.  However, in a modification of custody proceeding there is an additional first obstacle that needs to be surmounted.  The requesting party must first prove that there is a substantial change of circumstances that requires the best interests of the child(ren) to be weighed.  It is important for the lawyer and the parties to keep these standards in mind throughout a trial in order to present the most compelling and relevant information to the court.  The judge on your case will appreciate a focused presentation that does not include too much superfluous information or irrelevant material.  There are no jury trials for custody issues in New York so the hearing is what is called a bench trial.  The judge is the audience and the person who decides the case.

The petitioning or moving party goes first and will be given the opportunity to make an opening statement.  The responding party or other side of the case will be given a chance to make their opening statement afterwards.  Often their will be an attorney for the child or children that will also have the chance to make a statement.  Sometimes lawyers, or self-represented parties, will waive their right to make an opening statement and choose instead to let the evidence brought out, or the lack of evidence, speak for itself.  That is because the opening statements are not actually evidence.  They are a recitation of what might be brought out in evidence.  Stylistic preferences, and the facts of the case, will influence whether to make an opening statement or how to do it.  It is important to keep those aforementioned standards in mind, specifically, if a substantial change of circumstances needs to be first shown.  Also, everyone should never lose sight that ultimately what is in the best interests of the child(ren) is most important. Continue reading ›

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Forensics are ordered in custody and parenting time cases by the New York Family Courts and Supreme Court when there are disputes about the custody and/or visitation (parenting time) of minor children.  The custody dispute might be part of a divorce or can be a part of a case when the parties are not married or divorcing.  Forensics is the word used for investigations and reports made by psychological professionals for the court which are then used to aid in deciding how to rule on the dispute.   Usually forensics are employed for cases in which there is a battle for custody.  Sometimes, however, the question might be over time, access, child relocations or visitation with the child (ren).  Your New York City or Long Island Child Custody Attorney will be an important part of your case when forensics are involved.  Using the forensic investigator and report in a case is a technical process.

Forensic investigators are usually social workers, psychologists or psychiatrists that specialize in children and family matters.  The forensic professional will speak with each parent or other parties such as a relative or grandparent, the subject child or children, and other prominent people in the child’s or parent’s life.  Usually, at least a few meetings for each person will be required by the investigator with each parent and he/she will also meet with the child.  It is common for the forensic investigator to meet with each parent alone, the child (ren) alone and then the child together with each parent.

While forensics can be a useful tool for the trier of fact (the judge or referee), to gain valuable insight about what ruling would be in the children’s best interests, another motive might be to put financial pressure on the parties to settle.  Forensics can be a costly process.  The final price will vary from case to case, as the hourly rates of the investigators vary and the time spent on the case will differ.  How much time is required will depend on the specific matter and all the players involved. The allocation of the expense for the forensics is usually pro-rata, according to the percentage share of each parent toward the total combined income.  It is not unexpected, however, for a court to order that the costs initially be split and possibly be reallocated at trial.  Some courts will not decide a custody and visitation case without forensics regardless of the wishes of the individual parties or their financial circumstances.   Other courts are more sensitive to the financial ability to pay of each individual party and might not require them if it is a great hardship. Continue reading ›

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Parents have a duty to support their children, in New York, until the age of 21 unless they are sooner emancipated.  The doctrine of constructive emancipation has been developed by the Child Support Standards Act and corresponding case law in New York.  Children can be emancipated because they get married or join the military.  Other ways for emancipation to occur is where a child of employable age becomes economically independent or voluntarily and without cause, abandons a parent or the parent’s home, against the will of the parent and for the purpose of avoiding parental control.  New   York courts have held that in these cases the child forfeits his/her right to demand support.  It is a difficult case for the moving party to win.  I have argued both sides of the issue at trial as a Long Island Child Support Attorney.

Economic independence is usually an easier concept to grasp than the abandonment cases.  Economic independence commonly occurs, according to the Child Support Standards Act law, when a child is working full time and is self supporting.  The debate under this aspect of constructive emancipation usually comes under the topic of whether or not the child is generating sufficient income even when working full time.  Therefore, when a child of employable age is working but still receives help from a parent for important economic items like food, utilities and insurance the child likely is not to be deemed emancipated.  This might even be the case when the child does not reside with either parent but still needs help for financial support.

Although economic independence is not always an easy call, abandonment cases can even be trickier and more subjective.  The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal.  A parent may impose reasonable regulations.  When the abandonment fact is that the child left a parent’s home, the debate can be whether or not it was against the will of the parent to avoid parental control and whether or not there was good cause.  Good cause is the key phrase in that situation which the court would need to decide in disputed matters.  The foregoing abandonment situation applies when dealing with the leaving of the home of what was the residential custodial parent. Continue reading ›

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Relocations can be discussed and settled upon in child custody cases, mediations and collaborative divorce cases.  What happens, however, if the parties (usually parents) do not agree on whether a parent should be allowed?  As usual, the best interests of the children are used as the legal standard in New York to decide relocation requests in child custody cases.  The default law, once an order about child custody or parenting time (aka visitation) is made, is that the parent that has physical custody would need permission from the other parent, or a court that has jurisdiction about child custody to decide the relocation request.  Parties to a child custody and parenting time case are free to agree to include different language about future relocations with the child.  If the order is silent about relocations, the default law is what would control in the case.  As a New York City and Long Island child custody lawyer, I have experience in settling and litigating relocation issues in child custody cases.

Probably the oldest and most repeated story about a custody dispute is the biblical story about the wise King Solomon.  Two women came to his court both claiming to be the mother of a baby.  As the judge, King Solomon proposed to resolve the situation by cutting the baby in half and giving each woman half of the baby.  One of the litigants thought this was a great idea while the other begged the King to give the live baby to the other woman.  King Solomon then decided that the true mother was the one who begged for the baby to be given to the other woman.  A New York court cannot propose splitting the baby in half, like the wise King, so in a custody dispute the court is left with the prospect of deciding which parent the child should live with.

The highest court in New York State, the New  York Court of Appeals has set forth factors which should be considered by a judge, or trier of fact when deciding what outcome is the likeliest to be in the best interest of the child, when deciding relocation requests.  For ease of reference I am going to list them out here.  The case law dictates that the following is significant and should be considered by the court: Continue reading ›

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A single adult, a married couple or two adult intimate, even unmarried, partners together may adopt according to the New York Domestic Relations law.  Adoptions can be done through an authorized agency or by private placement including step parent, adult and foster parent adoptions.  Anyone that needs more information on the topic should consult with a New York or Long Island Family Law attorney to learn about their rights.  My office happens to handle such cases.

Petitions for adoptions can be filed in the Surrogates   Court or a New York Family Court.  The petition should include the names, addresses, age, marital status, religious faith (if applicable), and occupations of the proposed adoptive parents.  Similar background information about the adoptive child needs to be submitted, as well as the health and medical history of the child at birth and thereafter.  Known hereditary illnesses or conditions including any drugs or prescriptions taken by the biological mother while she was pregnant with the child should be disclosed.  Care should be taken to include any supplemental information that might have bearing on the child’s well-being including any special skills, hobbies or interests of the parents.  This kind of information can help make a court feel more comfortable about the adoption.  In the final analysis, a court needs to feel that the adoption is in the child’s best interests.

The birth certificate of the subject child should be attached to the application.  The petitioning parents will need to set forth when and how it is that the child came to be with the adoptive parent(s).  Information about the other members of the household in which the child will be living needs to be disclosed.  Anyone having legal custody of the child should be stated in the petition including their addresses.  If possible, a consent form from the birth or legal parents should be included with the application, however, consent is not always required under Domestic Relations Law Section 111 in situations such as when a parent has surrendered their child to an appropriate agency or a parent that has indicated an intent to forego their parental rights.  The consent of a child over fourteen years of age is usually necessary for the adoption.  The court reviewing the adoption application can determine whether consent is necessary for each specific case. Continue reading ›

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Extraordinary circumstances must exist for someone who is not a parent to be able to prevail against a parent for custody or guardianship in New York.  Only if these extraordinary circumstances are found by a court to exist should the court then consider if it is in the best interests of the child(ren) for the grandparent, relative or other person to be given guardianship or custody.  Further consideration will be given below to guardianship and custody requests by grandparents or other non-parents. But first I will address the topic of grandparent rights to visitation which I have seen come up a lot in my practice as a New York City and Long Island Child Custody Attorney.

Whether or not a grandparent has “standing” to petition for visitation is the first thing that must be established for a court to decide a grandparent visitation petition.  Standing means whether or not the person has the right to be heard in court.  If the petitioning party does not have standing the case should be dismissed.  There is automatic standing if one of the parents of the child has died.  In other cases, courts need to determine if equitable circumstances, dictate that a court should intervene to hear the grandparent visitation request.  Such equitable circumstances could be extended disruption of custody by a parent, parental abandonment, physical or mental unfitness of a parent, among other scenarios.

If a grandparent is found to have standing, then a court must determine if it is in the child(ren)’s best interests for the grandparent to be given a visitation order.  Usually if it is necessary for a grandparent to petition for visitation, a parent or parents with custody are opposed to the grandparent getting a visitation order.  Because the care, custody, and control of children is considered a fundamental right of parents, there is a presumption to be given that “fit” parents are acting in the best interests of their children.  Courts are therefore supposed to give “special weight” to a fit parent’s wishes about a grandparent visitation order.  Courts still have the final decision on the matter, but the parental preference in such a situation needs to be considered by the court.  The nature and extent of the relationship that the child already had with the grandparent(s), the child’s preferences, the needs of the children, and the reasons for the opposition to the visitation should all be weighed by the court before determining whether to grant the visitation order or not. Continue reading ›

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Child custody in Long Island and New York, applies to children until they are eighteen years of age.  Although eighteen is the age of majority in custody cases, child support continues in New York until age 21 for unemancipated children.  The different types of custody situations are fairly uniform throughout New York.  What this means is whether you live in Suffolk, Nassau, Queens or elsewhere, the different options for a settlement or decision on custody and parenting time matters should not vary too greatly with geography.  It helps to have a working knowledge of what the different options are that are out there to know what to seek in your specific case.  I will attempt to define what the most common custody arrangements mean in this blog entry.

There are two major areas of custody of a child that need to be decided.  The first is with which parent the child lives.  When a child lives with a parent, pursuant to a court order, this means that the parent has residential custody according to the law.  The second major area that needs to be defined in a custody order is who has decision making authority for the minor child.  The parent or parents who has/have the decision making power under the court order is said to have legal custody.

When someone has “Full” or “Sole” custody, that usually means that the child lives with that parent and that parent has full decision making authority for the child.  In this situation that parent is the only person that has the authority to make decisions for the child.  In other words, the person that has full or sole custody has both residential and legal custody for the child.  Often it is understood and ordered that this person should consult with the other parent before a decision is made, however, ultimately the parent with sole custody gets to make the final decision.  The parent that does not live with the children, or the parent that does not have residential custody in any of the custody situations usually has the right to parenting time or a visitation schedule.  Details about different parenting time or visitation schedules will be the subject of a future blog entry. Continue reading ›

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