Child Custody

Divorce Mediation Bullet Points Part Three

December 29, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

This blog is part three in my summary of points about divorce mediation take from my blogs over the years – Mediation-Consultation-300x200

42 – Child Custody topics can be worked through and agreed upon in mediation. One of the issues we can and should address for a comprehensive agreement is what will be the custody arrangement, i.e.: true shared custody; residential custody to one parent; joint legal custody; or sole custody?

43 – Parenting time arrangements can be discussed and agreed upon in mediations. It can be as open ended as language such as the parties shall each enjoy liberal parenting time as shall be agreed upon going forward. Other people like to have a more specific schedule of parenting time. We have come to arrangements where the parties split the time by alternating weeks or have what we call rolling fours and threes (four nights a week to one parent with four to the other parent then flipping again and again). Other schedules could be that the “non-residential” custodial parent enjoys time with the children on weekends, be it alternating weekends or some other arrangement. Frequently we may include that the parents will alternate or share holidays, school breaks, and special occasions in some fashion. Usually we include vacation time for each parent as well. There are countless variations for parenting time schedules as each family is truly different.

44 – Unmarried couples can use mediation for custody and parenting time as well as the traditional divorcing couple. A little differently though than divorce mediation I can draft the agreement for custody and parenting time. However, to be made into a binding court order the couple will need to bring the agreement to the Family Court, via a petition (that I can help the draft), without me as being listed as one of their attorneys. This process is different than divorce mediations where an uncontested divorce is submitted without a court appearance being required while in Family Court appearances are always required when a petition is filed. Continue reading ›

Court Ordered Mediation for Child Custody in New York Family Court

November 23, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Negotiationpic-300x207 In my last blog, I discussed the arrival of presumptive mediation as a mandatory addition to New York divorce cases. Presumptive mediation for family court cases on custody has now arrived in New York, as of the fall of 2019. So far, this is how I have seen this implementation work in the Nassau County family court. When custody cases are filed, whether it’s for a modification of an existing custody arrangement, or it’s a new custody case, the first court appearance will be schedule for mediation. A neutral mediator will be assigned to the case that can work for the court, and the case will be scheduled. The parties will be entitled to have their lawyers in the mediation if they choose. If the court has assigned an attorney to represent the child or children in the case, they will be able to attend the mediation too.

In the family court of Nassau County, parties will have the option to opt out of presumptive mediation. In cases that involve serious allegations of domestic violence, or similar conduct that would lead to an Order of Protection case in family court, mediation might not be a suitable solution. I have witnessed custody disputes in Nassau County that have still been referred to mediation after a Final order of Protection had been entered. However, the referral in that case took place prior to the enactment of the Mandatory Presumptive Mediation program. Both of the parties in the case agreed to attend mediation. Continue reading ›

When Will Courts Rule a Name Change is in the Best Interests of the Child?

November 3, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Changing your name in New York or Long Island isn’t always a complicated process. If you are a legal adult, then you have the right to change your name without a court order, provided that the legal name is not misleading. In other words if it will not perpetuate a fraudulent activity, or interfere with someone else’s rights it is usually approved. Adults in Long Island and New York also have the option to change their child’s name – however, in this case, the circumstances are slightly different. When an adult attempts to change a child’s name, then the courts need to consider a number of things, including whether or not the name change will be in the best interests of the child.

In any family law case that concerns a child in New York or Long Island, the courts will always use the best interests standards as the basis for their decisions. This basically means that the courts will attempt to make a decision that will not harm the child’s physical or mental status in any way. For instance, in a case I advised a client on, a mother requested for the Nassau County Supreme Court to change the surname of her child to include her name. In this case, the mother and father were not married but were once engaged. As such, she originally was not concerned about giving the child just the father’s last name as she intended to take on the same last name when they got married. However, the romantic relationship fell apart and the couple never got married. Therefore the child and the mother had different last names. The mother was the residential custodial parent. The mother felt that because the child was under her primary care, his name should reflect both the names of the father and the mother.

The father in the case above said that the petitioner only wanted to change the name to alienate the child from him. The respondent felt that the mother’s reason to seek a name change was based on a need for control. However, the court found that the proposed name change to a hyphenated surname was in the best interests of the child because it meant that the child could share the same last name as both his father and his custodial parent. The petitioner (mother) was therefore given permission to change her child’s name. Continue reading ›

Temporary or Pendente Lite Child Visitation or Parenting Time Orders

July 22, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

ParentsWalk-300x200 Child custody, visitation, and parenting time cases are complicated for many reasons. The courts of New York are required to make decisions based on the “best interests” of the child or children involved. This requires a careful consideration of multiple factors, such as which parent can provide the child with the right level of care, the parenting skills of each parent, and more. It can take time for the court to be able to hold a full evidentiary hearing in order for both sides to present all the evidence necessary to make decisions regarding a child’s best interests. Until that time, though, temporary orders for visitation, parenting time, and child custody may be provided to guide parents while the final order is pending. In Family Court they are called temporary orders and in a divorce, in the Supreme Court they are often called “Pendente Lite” orders which is a Latin legal term for an order while the case is pending.

A final order of custody, without the consent of the parties involved, if there has never been a prior custody determination, should not be made without a full evidentiary hearing that allows the courts to consider the factors surrounding “best interests” carefully. However, full evidentiary hearings may not happen for a long time, sometimes many months. If one side or the other in the case requests a visitation or parenting schedule when waiting for the final order to be provided, I find that the courts often attempt to ensure that each side has meaningful time with the child or children. The preferred method of the courts is generally to get the consent of the parents to a schedule that they both agree to for temporary orders. Continue reading ›

Can Divorce Mediation Be a Straightforward Process?

July 9, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Mediation-Couch-300x200 Divorce is rarely straightforward. There are a lot of things that couples need to cover when a marriage comes to an end, including figuring out how debts and assets should be divided between parties, and determining who should have primary custody over the children. However, depending on the nature of your relationship with your ex-spouse, and the strategy you choose for managing your divorce, it is possible to make things a little simpler.

Divorce mediation is often a more straightforward way to deal with divorce for the couples I work with that want to avoid things like litigation. During mediation, couples have the chance to discuss the outcomes that they want to achieve with their divorce and negotiate the terms of things like maintenance aka spousal support, maintenance, equitable distribution and more. For many parties, a divorce mediation is a more relaxing and fast-paced strategy for handling the various complications that arrive during divorce. That’s why I’m so committed to giving the people I work with the opportunity to choose mediation if they feel that it’s right for them. Continue reading ›

Child Custody and Parenting Time Decisions are Sometimes Reversed on Appeal

June 23, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Review-Attorney-Picture-300x199 Most of the time, the appellate courts recognize that the trial courts of New York are given a great deal of discretion to make decisions about child custody and visitation aka parenting time matters. This is because it is recognized that these courts are in the best position to determine what is in the best interests of a child. The trial court’s opportunity comes from the ability to assess the character and demeanor of the parties, witnesses. The theory is that combining the court’s observations of the witnesses in the case, combined with the submitted evidence puts the trial court in the best position to make custody determinations. As I mentioned in my previous blog post, it’s unlikely for the appellate court to overturn the decision an appeal is made by a parent or parents who want to appeal a custody or visitation decision. However, it does happen at times and it may be possible for the matter to be overturned in an appellate court if the attorney for the appealing party can prove that that there was not a substantial or sound basis for the custody decision in the first place.

For instance, in the relatively recent case of Weisberger v Weisberger, 154 AD3d 41 (2^nd Dept. 2017) the court found that the trial court’s previous decision to modify the stipulation and award full custody of the children to the father in the case was made without a substantial and sound basis in the record. According to the details of the case, the trial court gave excessive weight to the religious upbringing clause in the case, rather than focusing exclusively on the children’s best interests. There’s nothing to show that unsupervised visitation was detrimental to the children, and it was therefore inappropriate for the court to order supervised visitation. Continue reading ›

Child Custody and Parenting Time (Visitation) Decisions Usually Upheld on Appeal

June 19, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Lawyerlaptop-300x200 Child custody is a complicated part of divorce and family law.

Parents will often fight tooth and nail to get the custody order that they believe is right for their family. Even after a court order has been ruled on by the trial court, one or sometimes both parties to the case may seek to appeal the decision of the trial court. However, because the trial court is vested with broad discretion to determine what is in the best interests of the child in mind when making custody decisions, it’s unlikely that arrangements will be changed in most situations on appeal. The courts in New York strive, in theory, to keep the disruption to a child to a minimum when making decisions about their future.

Typically, the decision of how to award custody is made in a trial court which is either the Supreme Court, in cases of divorces, or Family Court can also deal with child custody cases. The case law stands for the propositions that the trial court needs to be able to weigh various factors, including the character, sincerity, and testimony of the parties involved. The trial court has access to both parties and can supplement the information it learns from everyone with professionally prepared documentation and reports if such evidence is submitted. If one party in the case is unhappy with the outcome, then they can ask to have the matter reconsidered by the appellate court. However, appellate courts are often reluctant to re-evaluate the subjective factors addressed by the trial court. Additionally, decisions of trial courts are usually upheld, on an appeal, unless the party can prove that there was a lack of a sound or substantial basis, in the record, for the trial court’s original order. Continue reading ›

Are Relocation Clauses Still Binding in New York Divorce and Child Custody Matters?

May 25, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Relocation-Picture-300x200 There are many complicated aspects of family law. Arranging equitable distribution in a divorce can be difficult, particularly in cases where it’s hard for the couple to agree. Deciding who should get control over a family home is also a complex discussion. However, few things require more caution and careful consideration than issues associated with child custody. Not only does a child custody agreement need to be approved by a court based on an observation of what’s in the child’s “best interests,” but changing the order is a challenge. Even if a modification of child was right for the child, absent an agreement about it, the court would need to see a substantial change in circumstances before even getting to the issue of whether the modification is in the best interests of the child or children.

When working with clients on family law issues that involve child custody agreements and visitation or parenting time rights, I find that it’s essential to highlight the complexity involved in making the right decision for a child. The courts of New York and Long Island will not disrupt a child’s life and growth by altering their custody situation unless there is a good reason to do so, that’s why a substantial change in circumstances is crucial. It’s also essential for the people requesting the change to show that the alteration is in the best interests of the child.

In the past, the situation used to be that if people agreed in advance that another parent would be able to relocate as part of a written agreement that was ordered by the court, the agreement would control the relocation. However, that may not be the case today. The court can no longer automatically say what might be in the best interests of a child without hearing the full case. Continue reading ›

Divorce Mediators and The Art of Asking Questions

May 10, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

ChildSupportMediationCouple-300x200 As a divorce attorney and divorce mediator, I often ask questions to learn more about my clients and their cases. Many aspects of law revolve around the ability to ask the right questions at the correct times. Recently, I attended a conference at the New York State Council of Divorce Mediation, to further my education on Divorce Mediation and network with my peers. During that event, Kenneth Cloke, JD, Ph.D., and LLM provided an interesting training session on the “art of asking questions.” This session raised some interesting insights in the questions in divorce and family law mediation cases, and I’ve written this blog to share those insights with you.

In any legal case, asking the right questions is crucial. For a divorce mediator, asking questions can be complicated and even dangerous, because it sparks emotional responses in clients. Sometimes, you need to ask the difficult questions to get to the deeper meaning behind certain issues and domestic disputes. One thing that all divorce attorneys and mediators see, is that the disputes between parties in a divorce are often two-dimensional. Dr. Cloke points out, usually, a husband or wife complaining about dirty dishes left in the sink isn’t just about the dishes – it’s also about the lack of respect that someone shows when they ignore something important to their spouse. Continue reading ›

The Similarities and Differences between Guardianship and Custody in New York Family Court Cases

May 5, 2019 | Law and Mediation Office of Darren M. Shapiro, P.C.

Baby-and-Mom-300x200 When a child’s parents are unwilling, unavailable or unfit to care for their children for any reason, another adult may be awarded either a guardianship of the children or custody of the children. Under New York family law, guardianship and custody are two related but distinct concepts, and the intersection of the two can be complex at times.

As a default rule, a child’s parents are awarded custody of their children. This includes physical custody (where the child lives) as well as legal custody (the right to make important life decisions for the child). However, in some cases, a child’s parents are either unavailable or unable to care for their children and an alternative caretaker must be established. Thus, custody in this context generally refers to a non-parent.

New York Guardianship

A minor child who is under the age of 18 and is not married must have a legal guardian. Once appointed, a legal guardian has the same power as a child’s parent to make decisions for the child.
Continue reading ›