Articles Posted in Family Court

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Every location has different particularities that make handling family law and divorce cases somewhat different from County to County.   The Domestic Relations Laws and Family Court Act is the same for everyone in New York, but different rules and procedures might apply from Judge to Judge, courtroom to courtroom, and certainly from venue to venue. I handle cases all around the New York City area including Nassau and Suffolk County Long Island. I started my family law practice some years ago as a Suffolk County Family Law Attorney. My office is in Jericho, New York, where I work as a divorce mediator, litigator, and collaborative law lawyer. However, I reside in Suffolk County and enjoy the convenience and familiarity of handling cases in the Suffolk County courts. I have handled more Suffolk County cases than any other location. The purpose of this blog article is to relay information about family law and matrimonial cases in the Suffolk County Supreme Court and Suffolk County Family courts.

As I handle Nassau County, Queens, and New York City cases in addition to Suffolk County, I have seen some of the nuances of each area.  At times there is a choice of venue to file the case if the parties reside in different counties. Divorces may be filed in any county chosen by the Plaintiff, and as long as venue is not contested by either side, the case can be resolved in that County, provided New York State otherwise has jurisdiction.   A specific County might be selected as they are in the position to better expedite granting the divorce than a different venue. There are often considerations about whether to file a case in the Family Court or Supreme Court because the Suffolk County Family Court and Suffolk County Supreme Court in most instances have concurrent jurisdiction, after a divorce, to hear ongoing issues about child custody, child support, parenting time, and maintenance.

Divorces are handled in the Supreme Courts of the various New York Counties. Usually depending on the residences of the parties, a divorce filed in Suffolk County Supreme Court is either assigned to be heard at the court in Central Islip, New York or Riverhead, New York. The addresses are 400 Carleton Avenue Central Islip, NY 11772 and 235 Griffing Avenue Riverhead, NY 11901. Post judgment divorce issues may also be filed and handled at the Suffolk County Supreme Court. Cases are assigned to Supreme Court Justices that are elected Judges, however, the parties can agree for the case, or one of the issues in the case, to be heard by a Judicial Hearing Officer for different reasons such as to expedite the time frame of resolution. Mediation services can be ordered, usually only by agreement, for which the parties need to pay. Since I am a Suffolk County resident, I enjoy the convenience of appearances in Suffolk County Courts. Continue reading ›

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In this blog I will attempt to outline some of the elements of common family offenses, which I have seen in my practice as a New York City and Long Island Order of Protection Lawyer.  If a family offense is proven, it usually entitles the victim to an order of protection.  Under the New York Family Court Act, if someone that meets the definition of Family under the Act commits a Family Offense against the other then there should be a finding that a Family Offense has been committed and a decision as to what order of protection, if any, is appropriate among other possible dispositions.  Orders of protection might direct a person to stay away from the protected individuals and/or to refrain from committing certain acts against them, among other things.

At a hearing, facts that are not alleged in the petition, if properly objected to, may be inadmissible to prove that a family offense was committed.  Only relevant, competent and material evidence should be admitted to prove or disprove a family offense.  Each case is different and whether or not a Family Offense was committed and the appropriate action to take if there was an offense, is up to the discretion of the trier of fact or judge in each particular case within certain evidentiary requirements and standards.  Usually Family Offense cases are heard in the New York Family Courts.  They may, however, also be heard in the Supreme Court such as during a divorce case.  Often times the Family Offense case may initially be assigned to a Referee, instead of a judge, who can be given the authority by the consent of the parties to be the judge that decides the case.

Family offenses are enumerated in the New York Family Court Act and are violations and/or crimes under the New York Penal Law.  A family offense proceeding in Family Court or Supreme Court, however, is not a criminal prosecution and thus is usually simply about whether or not an order of protection should be issued.   Again, the following is not a complete list as there are many more acts or crimes enumerated under the law, but the intent is to illustrate of what might constitute some of the more common.  Continue reading ›

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People are free to make arrangements in their settlement agreements concerning the circumstances that would allow for child support to be changed as time moves on from their last child support order.  Absent an agreement, however there are two different methods to try to change child support.  The first, which most people know about, is filing a petition, application, or motion in the Family Court or Supreme Court to modify child support.  The second method, not as widely known, is to serve and file a timely written objection to a notification by the Support Collection Unit of a Cost of Living Adjusted Order.  If a timely written objection is properly made to the notice of the COLA increase or Cost of Living Adjusted Order, the court is required to then determine what child support would be based on current income or circumstances.  This is called a “denovo” hearing on child support. This blog entry is intended to provide a general outline of these two different techniques.  I am a Long Island Child Support Lawyer that handles cases on Long Island and all around the New York City area.  Through experience, research and education, I gained my knowledge and experience with child support.

The law in New York regarding child support is commonly referred to as the Child Support Standards Act and is set forth in both the Domestic Relations Law and the Family Court Act.  As the law stands in New York today, the default rule is that a party to a support order may seek to modify child support if since the last order:  there exists a substantial change in circumstances; three years or more elapsed since the order was entered, modified or an adjustment made; or since the entry, modification, or adjustment of the order either party to the order has had a change to their gross income of fifteen percent or more.  This is the law for cases filed subsequent to the law change in 2010.  For orders that were before the law change, the old standard applies which was that absent an agreement for modifications otherwise, there would need to be a substantial change of circumstances.  It was more challenging to obtain modifications under the old law.     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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Appeals from decisions of the Supreme Court in a divorce or appeals from Family Court orders in New York are challenging. It is very important to properly serve and file the right documents, according to the deadlines in order for your appeal to be able to proceed. It is always advisable to use an experienced matrimonial or family law attorney whenever you are involved with a family law case in court. This is especially true for appeals which are highly technical in nature. This blog entry is intended to be used for information purposes only and not as a substitute for a consultation with a New York City, Long Island or Nassau County Family Law Attorney.

To be able to proceed with an appeal in New York, the person appealing must be a party that was aggrieved by the court order that is being appealed. An aggrieved party is someone that did not get all the relief they requested at the trial court. Once you determine that you are an aggrieved party then you have to make sure the order is appealable at this juncture. The general rule is that temporary Family Court orders, except for a temporary support order, are not appealable. But, even when temporary Family Court orders of support are appealed, the Appellate Divisions will usually encourage the resolution by recommending a speedy trial. Temporary orders issued by the Supreme Court, however, are appealable. Often times the speedy trial recommendation to resolve the temporary order appealed from might still be the solution decided by the Appellate Court. Almost all final judgments are appealable and any temporary orders that necessarily effected the final judgment can be reviewed on appeal of that final judgment.

Consent orders, stipulations, ex-parte orders or default orders are generally not appealable right away. Often times a motion to vacate the order in the trial court would be a required first step. In the case of a default judgment, for example, the defaulting party should make a motion to vacate demonstrating an excusable default and a meritorious defense. If the motion to vacate is denied, then the person might be an aggrieved party with an appealable order. Again, the advice of a divorce or family law attorney familiar with appeals should be sought to help make these determinations.

The rules of the Appellate Division in which the appeal belongs should always be consulted prior to starting the process. New York is divided into four Appellate Divisions. The First Department covers New York County (Manhattan) and the Bronx Counties. The Second Department covers Nassau County, Suffolk County, Queens County, Kings County (Brooklyn), Richmond County (Staten Island), Westchester County, Rockland County, Orange County, Dutchess County and Putnam County.  The Third Department and Fourth Departments cover upstate New York with the Fourth Department generally being the North West counties and the Third Department generally being the North East counties of New York State. 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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People that are considered family, by the law, have the ability to get orders of protection against other family members in New York Family Court (or New York Supreme Court while in a divorce) if a Family Offense has been committed by the person against whom the order of protection would be made.  Otherwise, orders of protection can be given in favor of victims or alleged victims of crimes against the perpetrator or the defendant in a criminal prosecution.  What that means is that family members have the unique ability to get orders of protection against their family members without having the person go through the criminal prosecution system.  Of course, the victim, or alleged victim, has the right to seek a criminal prosecution instead, or in addition to, seeking the order of protection through the Family Court or Supreme Court.

If a person properly alleges a Family Offense in the petition, the court will usually grant a temporary order of protection, just based on the one sided presentation by the petitioner, for the accused to either stay away from the protected person(s) or to refrain from doing prohibited acts against that person (such as harassment, disorderly conduct, assault, etc.).  Frequently, agreements are made to settle an order of protection case for an agreement to have an order of protection in place for a specified period of time such as six months, one year, or two years with the accused not admitting any of the allegations.  If there is not an agreement for an order of protection, the court must hold a hearing to determine based on a fair preponderance of the evidence whether a family offense has been committed.  This is a much lower burden of proof than is required in a criminal case which is guilt beyond a reasonable doubt. If the court finds a family offense was committed then the court must decide what order of protection would be appropriate to issue on a “permanent” basis which means for some duration after the completion of the case.

So, you might be wondering what is a family offense.  A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Section 812 of the New York Family Court Act has the list of crimes and violations that qualify as Family Offenses.  In order for a New York Family Court to award an Order of Protection after the filing of a Family Offense petition, it must find that one of these specifically enumerated Family Offenses was committed.  Since these are activities are crimes and violations under the Penal law, it is possible that the alleged perpetrator could also face criminal prosecution.  The more detailed elements of each of these family offenses can be found in the Penal law.  But remember, a family offense proceeding in family court is not a criminal prosecution, it is a civil proceeding that is usually about obtaining an order of protection not having someone put in jail.  Although, if someone violates the order of protection, jail is a distinct possibility. Continue reading ›

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I have handled a lot of Long Island child custody and visitation (aka parenting time) cases, particularly in Nassau, Suffolk, Queens, New York City and the surrounding areas.  I will discuss below how custody cases are decided in the Family Court and Supreme Court in contested child custody litigation or, what is aptly called a custody battle.  Mediation, collaborative law, and uncontested cases are alternative methods which will be addressed in other blog entries.

If a couple is not married, or they are married but there is not a divorce case pending, parents can consider using the Family Court for a custody case.  If a couple is married, living together, and co-parenting then the Family Court might decline to hear the case.  Parties should discuss with an experienced family law or matrimonial lawyer whether the Family Court would have jurisdiction in their particular situation.  Once a decision is made to file in Family Court or Supreme Court then appropriate papers must be drafted, filed, and served.  Although parties may represent themselves, it is advisable to use an attorney as navigating through a custody case in court can prove to be a tricky process.  The first court appearance is a conference date, whether in the Supreme Court or Family Court, in which the parties are free to consent to an agreement on what the custody terms and parenting time schedule will be for their children.

If an agreement is not made, often, an attorney to represent the child or children is appointed.  Usually, in the Family Court, the County will pay the fee for the attorney for the children.  In the Supreme Court, where a divorce must proceed in New York, usually the parties pay the costs for an attorney for the children.  The attorney for the children is required to advocate for the children’s’ desires.  In the case of very young children, sometimes it is appropriate for the attorney for the children to substitute their own judgment despite what the children are expressing.  This is determined on a case by case basis based, in part, on the maturity of each child. Continue reading ›

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Jericho, NY 11753
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