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In cases of paternity in New York,  a child that was born during marriage is legally presumed to be abiological product of that marriage, and this presumption historically was one of the most persuasive in law. However, it’s important to note that this presumption is still subject to the sway of reason, though statements have varied regarding the sufficient evidence required to rebut such a presumption. For instance, in the context of a case wherein a child is born during a marriage, the presumption should not fail unless there is evidence to demand reconsideration. In fact, if a husband and wife live together, legitimacy is often presumed, and even if the couple are living apart, the court can provide a fair basis for the believe that a child was born as a product of times the couple were brought together.

During recent years, case law that enunciates the presumption of legitimacy in paternity cases where a child is born during a marriage has been pulled into question. This isn’t necessarily because the reasoning and logic behind that case law has changed over time, but because the passage of time have delivered new updates in technology and science that make determining legitimacy accurately, more possible. In past cases, one of the primary – if not the only determining factor in the application of a presumption of legitimacy in court was access between the husband and wife. However, as we have progressed further into modern times, DNA tests and blood tests have also acquired a new ability to sway reason. Because of this, while the presumption of legitimacy still serves a laudable purpose, it remains to be just another legal presumption that can be used when conclusive evidence to the contrary is not available.

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In the courts of New York and Long Island, as well as legal institutions throughout the world, it’s notuncommon for legal terminology to leave parents confused when it comes to matters of custody. Indeed, in some cases, parents or guardians may be left feeling uncertain about the level of custody they have – and what certain orders imply regarding their decision making authority in reference to their children. Some people even suggest that the statutes employed in New York are harder to understand than those in other states, as they do not necessarily make direct reference to physical or legal custody, but only the word “custody” which can be taken to mean the concept of total custody over a child or children. However, although it can be difficult to understand, most New York custody orders I have been involved with, have addressed the varied aspects of custody, from legal and physical custody, to sole and joint orders, even if the terms aren’t easy for parents to follow.

More often than not, in New York courts, the term “joint custody” will refer to joint legal custody. I try to ensure that my clients know this when going into a case, as legal custody is significantly different to “physical” custody. Legal joint custody implies that both of the parents involved will have the right to decide upon important issues regarding their child – such as educational or medical matters. When a divorce or custody resolution is amicable, parents may voluntarily agree to a joint custody agreement and a judge will almost invariably approve it. However, most New York courts will not force joint parenting on a family. Indeed, when parents must approach the court to have a judge determine what is best for the custody of a child, the implication is that the couple does not get along well enough to make decisions together that are appropriate for their child. Continue reading ›

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In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.

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There are different ways to handle a divorce in New York, including mediation, litigation, and collaborative divorce. How the divorce is handled can substantially affect the outcome and cost, but there are pros and cons to each approach.

Divorce mediation is a popular form of alternative dispute resolution. Mediation involves a voluntary settlement process that allows a couple opportunities to make their own decision about significant decisions, such as where the kids will live, parenting time or visitation, how property will be divided, and whether one spouse will pay support to the other. Often, divorce mediation is not appropriate for cases involving domestic violence. In contrast, litigation in which negotiations are unsuccessful can lead to a trial after which a judge will make important decisions for the couple.

A trained divorce mediator, who should be a neutral party with no prior affiliation with either spouse, conducts the mediation and sets the structure. Generally, it is a good idea for both parties to also have legal representation from separate review attorneys, if not before, then when an agreement is drafted. This provides added protection against any oversights that occur during mediation. The mediator should be experienced and very familiar with the  Domestic Relations Law and other laws governing divorce in New York.

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Family Court Support Magistrates and Written ObjectionsThere are many complex nuances to consider when evaluating the hurdles and complications of family law – including cases that involve child support and spousal support. Typically, cases of support, are initiated when petitions are filed with your local New York family court, except divorces, which also can have elements of support, are done in the appropriate local Supreme Courts. Family Court support and paternity cases, are assigned to support magistrates. These professionals are responsible for hearing and helping to determine how support will be awarded. They have the power to grant or determine various forms of relief according to the Family Court Act, regarding proceedings that involve support, the enforcement of support, paternity, or matters regarding the Uniform Interstate Family Support Act. Within any applicable case, the support magistrate present will be given the authority to issue summons, decide motions, and deliver subpoenas according to section 153 of the Family Court Act, as well as deciding proceedings according to section 5241 of Civil Practice Law which involves income executions for support.

What Can Support Magistrates Do?

The part that a support magistrate will play in any given court proceeding will depend on the distinct and unique features of each case. For instance, in a proceeding intended to establish paternity, the magistrate must advise both the putative father, and the mother regarding their right to access counsel. In the same circumstances, the magistrate will advise the putative father and the mother of their right to request DNA tests and other genetic marker testing, however these tests are not always appropriate or ordered as detailed below if estoppel or similar circumstances apply. If a genetic marker test is allowed, from that point, the support magistrate will be given the power to determine all matters regarding that proceeding, including the delivery of an order of filiation which officially names a man the father of a child. An order of filiation can allow a father to file for visitation or parenting time with the child, custody of the child in some cases, and, if the father is the non-custodial parent, the responsibility of paying child support. Once the order of filiation has been issued, and child support becomes relevant, the support magistrate will be given authority to make a temporary and/or final order of support. Continue reading ›

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Divorce mediation in New York is a voluntary settlement process used by spouses who wish to divorce. The process is facilitated by a mediator who works with both spouses to negotiate a settlement that both parties can live with and that is in the best interests of the family. The mediator typically tries to conduct the sessions in an atmosphere of respect and cooperation. For many couples, especially those with children, mediation is a better option than litigation because it is less expensive and involves negotiation to find a good solution for everyone.

However, it is recommended for each spouse to have a review attorney to discuss their legal rights, if not before, then after a settlement agreement is drafted with the terms agreed upon in the mediation. The mediator might give options about different ways that the issues are handled in court cases, but does not serve as legal counselor to either of them.  Whether or not individuals heed the advisement to seek the counsel of a review attorney, in most instances, people will be bound by what they agree upon by a properly drafted agreement through a divorce mediation. Continue reading ›

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The short answer is yes, if the best interests of the children suggests different parents should have custody, as the recent Long Island case summarized below illustrates.  Child custody battles everywhere, as in Nassau County, New York can be extremely difficult, both for the parents and for the children. If a couple is not able to mediate and come to an agreement between themselves, the court must often devise creative solutions to highly charged and sensitive problems. The best interests of the children are of paramount importance to the court when making a custody determination.

In Kramer v. Kramer, the New York Supreme Court of Nassau County considered an acrimonious child custody battle, within a divorce, in a dysfunctional family. The couple had married in 1992. The husband mostly worked as a construction supervisor. The wife completed a master’s degree in early childhood education at the time they married and worked for a short period at a Jewish school. After that, she stayed home to raise the kids. The case was filed in 2011. At the time she commenced divorce proceedings, seeking temporary sole custody of the kids, maintenance, and exclusive occupancy of the marital home, she was working as an event coordinator.

In the case, the wife alleged that the husband had drained their joint bank accounts and reduced his support for the kids and her. The defendant claimed the plaintiff, his wife, turned the three oldest of his four kids against him. He also claimed she was unstable and had an undiagnosed mental illness.

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Parties are free to agree upon what is fair for child support, equitable distribution, and maintenance when they negotiate their own divorce terms though mediation, settlement negotiations or collaborative cases. In litigated cases, in general, when it comes to making determinations during a divorce case about issues such as child support, equitable distribution, and maintenance, the court will generally follow a set of pre-appointed guidelines or principles that have been developed through years of case precedents or outlined in the most recent relevant statutes. This makes it easier for judges to establish a starting point from which to create orders. However, there are particular circumstances in a variety of different cases, which may allow for the standard amounts to be deviated from. This blog will be a summary about the awards at the end of a divorce case for child support, maintenance (alimony), and equitable distribution. Pendente lite or temporary awards (that which is ordered while the case is pending) has been the topic of previous articles and will be the topic of future blogs.

Child Support

In child support, the suggested basic child support amount may be changed as a result of the courts close consideration of the finances each parent has and the needs of the children to be cared for. Another reason why the court may deviate from guideline child support amounts could be attributed to the emotional or physical health of the child in question, as well as any aptitudes or special needs that child might have that may require extra expenses to be paid. What’s more, the court will need to consider the standard of living that the child has gotten used to within the parental relationship that they had previously – ensuring that a state of comfort remained intact following a divorce procedure. Aside from the reasons mentioned above, tax implications may cause a judge to deviate from a basic amount of support, as could the non-financial input a father or mother contributes to the wellness of a child. Continue reading ›

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In New York, annulments are rarer than divorces. However, though they may be less common, the procedure is still available for partners so long as the correct legal grounds are present. Underlying the concept of annulment is the legal theory that the “marriage” to be voided, after the annulment, was never a valid marriage. Legally, marriages that have been annulled are regarded as “nullified” or “void” marriages, and the action to begin this procedure must begin at a certain time to be considered applicable. The time limit that applies to your particular circumstances will depend on the circumstances as well as other crucial factors.

An annulment is distinctly different to a divorce in that the legal procedure for divorce is used to terminate a marriage that was considered to be previously legitimate and valid under the eyes of the law. An annulment, on the other hand, becomes a declaration that the marriage was never legally valid to begin with. However, as in a case of divorce, annulment cases may permit the courts to award custody and parenting or visitation rights regarding the children involved in the marriage, and may require the payment of child support or other forms of maintenance. For instance, according to Domestic Relations Law, there are formulas for both temporary maintenance (support for the spouse while a matrimonial case is pending) and durational or permanent maintenance if any (support for the ex-spouse for some time period after the case is finished), and courts have some discretion to decide whether or not to order a maintenance award within any matrimonial action – including annulments. Continue reading ›

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According to the New York Domestic Relations Law, as part of a matrimonial case, such as for divorce, annulment, separation, or obtaining maintenance or equitable distribution following a foreign divorce judgement, the court may award counsel fees. In New York proceedings it is well established that the Court in domestic relations cases has the discretion to award fees depending on the parties’ circumstances, the merits of each sides positions and the complexities involved in the particular case.  As part of a post nuptial agreement, pre nuptial agreement, separation agreement, or stipulation of settlement of a divorce, often times a provision is included about future payment of the other side’s counsel fees by the party that takes a non meritorious position.  In those situations the court will usually seek to enforce the terms of the parties agreement regarding counsel fee applications.  The balance of this blog is about cases that are not covered by counsel fee clauses.

The underlying purpose and rationale behind many counsel fee awards is to make sure that a “needy” spouse has the ability to defend themselves, or carry out legal actions in court. Through counsel fees, the New York court is able to situate both spouses on an equal economic footing when it comes to using legal help and carrying out court proceedings. What’s more, these fees can help to ensure that during litigation, both spouses have equal leverage. The Supreme Court of New York may deliver an order to either spouse involved in the case, requesting them to directly pay counsel fees to an attorney for the other spouse, so as to enable that spouse’s continued participation in the case.  Courts can consider:  type of services rendered; the actual time used; the professional experience and reputation of the counsel; and the respective financial situation of each side. Continue reading ›

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