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Lawyeratdesk-300x200In this blog we’re going to be talking about the administrative process that occurs when someone challenges an indicated finding of neglect or abuse.

If there is a complaint made to Child Protective Services (the agency responsible if it is on Long Island or outside of New York City) or the Administration of Children’s Services (the agency responsible for New York City), a process begins. The agency has 60 days to either indicate the case (aka determine that the case is founded) or decide that the case is unfounded (aka not indicated).

There is a low standard applied in the initial indicated determination of “some credible evidence” in order to decide whether to indicate the case or not. Because of this low initial standard, some cases that are relatively minor or there is weak evidence get indicated initially despite the low amount of evidence of neglect. Continue reading ›

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This blog is the conclusion of my six part bullet point series summarizing my divorce mediation blogs over the years.WhiteTableContract-300x200

Mature couples going through divorce, sometimes referred to as gray or mature divorces often have a different perspective than younger couples. Mediation is a good option for these couples as well, though, some will still opt to litigate. After all, it takes two people willing to sit down and negotiate to be able to engage in alternative dispute resolution. Having an expeditious process, which mediation is the most likely to be, is often a top priority for older divorcees. Having a fair settlement that allows each side to meet their needs going forward is of utmost importance. Like for everyone, these couples are advised of the importance of using review attorneys and speaking with financial and tax professionals to ensure that they will be able to take care of themselves, in the right manner, after the couple separates and divorces. The mediation can focus on budgets and how it is that the transition from one household to two can be accomplished so that everyone is able to move on with the next chapters of their lives. How to handle distribution of retirement assets like IRAs, 401ks, and pensions is particularly important to focus on in divorce mediation for older individuals. What to do with the house, marital debt and perhaps child custody (if there are children under 18), and child support (which the default law in New York is that it lasts until 21 years of age) all are topics that might still apply. Everything needs to be explored.

Notably, social security benefits are not something that can be distributed in divorces. Rather, each person’s entitlement to social security benefits is determined by the federal Social Security laws. But social security benefits might be something that does get discussed in mediation. The benefits are income to the recipients and can be important in determining the proper amount of maintenance or support to be paid from one party to the other and for how long it should last. Likewise, someone’s entitlement to Medicare is something of a matter covered by federal law. This might be worth discussing in order to figure out how long one spouse needs to stay on the health insurance plan of the other. Often a separation agreement might be an option to stay on the spouse’s plan for a period until Medicare would kick in. Divorce is an event that in all or most instances prevents someone from staying on the health insurance plan of the ex-spouse. When Social Security or Medicare kicks in is something that parties can discuss with their divorce mediators in order to figure out how long maintenance should last. Continue reading ›

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Couchcouple-300x200This blog is a continuation of my bullet point series on divorce mediation that summarizes my past mediation blogs –

Maintenance, also know as alimony, can be discussed with your divorce mediator.  How much money, if any, and for how long one spouse should pay the other maintenance needs to be discussed.  Some couples each feel that they are capable of making enough money to be able to support themselves.  In those cases, waivers of maintenance by each spouse is possible.  Other times there is a feeling that one side of the relationship needs money over a period of time in order to be able to get back on their feet.  If there is not an agreement about maintenance couples can be reminded that there are guidelines in the law, based on income, and the length of the marriage for how much and how long maintenance presumably should last.  But they are just guidelines.  Sometimes, if the couple wants to hear about the guidelines it might be a useful discussion to have regarding the topic of maintenance.  In mediation, though, we are not bound to the statutory guidelines.  The focus of the conversation could be about budgets and how much each side of the table needs in order to transition into their new lives and meet their monthly expenses.

Likewise, if there are minor children (under 21 for child support purposes), the payment of child support needs to be discussed.  This topic too can center around budgets and how is everyone going to meet their monthly expenses and take care of the children.  While couples are not bound by the statutory guidelines for child support, every agreement in child support, even if it deviates from the guideline amount of child support, must spell out what the statutory guidelines are in order for the agreement to be binding.  Therefore, when I draft the settlement agreement the child support section will spell out the guideline amount of child support.  Sometimes we might discuss the guideline numbers in the mediation sessions, but the parties will definitively know the guideline numbers before the agreement is signed.  We can discuss and spell out legally recognized reasons for deviating from the guidelines in our mediations and mediated agreements. Continue reading ›

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This blog is Part 4 of my divorce mediation bullet point series. It looks like there will be a couple more to go to Couch-Meeting-300x200continue my summary of my divorce mediation blogs from over the years.

53 – Neutrals can be utilized in divorce mediation to get past sticking points or to help resolve certain issues that agreements need to be made to be able to obtain a settlement on all the issues involved with the dissolution of the marriage. For example, a neutral child specialist, such as a psychologist might be brought in on a mediation to resolve parenting time issues. Financial neutrals, such as accountants or certified financial planners might be used to work with the couple on budgets and how they can transition from one household to two. Appraisals for homes, valuations for business and other aspects can be done by neutral third parties. Many options are possible in mediation. There is no one set in stone formula for how we can solve problems and move forward.

54 – While mediation might be difficult in ultra high conflict situations, such as where there has been domestic violence, there do not have to be hard and fast rules. If both sides are willing to sit in a room with neutral divorce mediators it might be possible. Because of the potential of imbalance of power that may exist in such a situation, it is particularly important for the parties to utilize review attorneys to advise them about the divorce to ensure that there rights are being protected. I don’t believe that there needs to be a per-se exclusion for a couple from using mediation. Continue reading ›

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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 ›

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Here’s Part 2 of my divorce mediation bullet points from my blogs over they years. This one contains my next ten Mediation-Signing-300x200points –

30 – The parents can make agreements about which parent can claim the children or if the children will be shared or alternated as dependents for their tax returns. As a divorce mediator I always advise that I am not a tax professional and recommend that the parties consult with their tax advisor for tax advice and tax consequences regarding their divorce and settlement agreements.

31 – The law in New York regarding equitable distribution of marital assets and marital debt is to distribute these things as is fair. In mediation the couple can decide if dividing these things equally is fair or some other arrangement. In litigation, on the other hand, the court decides how this is done and usually invokes certain default thinking such as things should be equally divided.

32 – In mediation, agreements about the marital residence can be discussed and agreed upon. The knee jerk reaction of a matrimonial judge that has to decide issues on the marital residence tends to be something like, “If the two of you cannot agree on the house then I am just going to order it sold!” Divorce mediators can help the couple discuss arrangement where one side stays in the house for some time, or one buys the other out of their share among other possibilities. Continue reading ›

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This blog will be the first of a series of blogs that contain bullet points to summarize my blogs overMediating-Couple-Bright-Window-300x200

the past number of years. This blog series is intended to give an overview of information about

mediation, particularly divorce mediation, in no particular order of importance. Here it goes…

Continue reading ›

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Negotiationpic-300x207In 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 ›

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ChildSupportMediationCouple-300x200The May 16, 2019 article of Dan M. Clark in the New York Law Journal outlined presumptive divorce mediation, which was initiated this fall, as a system that the state courts in New York must now have in place to encourage that civil litigation be resolved via mediation, rather than open court. This strategy hopes to reduce some of the backlogs that have been plaguing the judiciary environment up until this point. Although such systems have existed throughout some state courts in New York before today, the new initiative will affect all state courts. Now, presumptive divorce mediation has arrived on Long Island, and New York State, meaning that litigated cases are automatically referred to mediators within the court system.

The new initiative clearly recognizes the value of mediation, including divorce mediation, or family law mediation as a strategy for resolving disputes over litigation. Based on the results that the courts have seen from the initiative following a trial in New Jersey, this program is expected to have many positive results. To cut out the gearing up for court before going to mediation in court, couples going through divorce could also choose to use their own private mediators, outside of the court system, to start mediating. Though there may still be cases wherein an issue cannot be resolved by divorce mediators and need judges to decide issues, the new strategy encourages more people to start their divorce process through alternative dispute resolution methods. Continue reading ›

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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 ›

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