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The New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age.  If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined).  In any of these instances the court would not allow the test.  As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue.  This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.

As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests.  Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice.  Equitable estoppel occurs when someone has held himself out as the father of a child.  Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.

The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place.  The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006).  The court recognizes a big quandary faced by potential father’s in this case.  If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship.   He can request a DNA test before assuming the role of father.  This, of course, can have the effect of causing a strain on the relationship between him and the mother.  On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father.  It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father.  It is not required that the person who holds himself out as the father did so knowing that this representation was false.  If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading ›

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The law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant. Continue reading ›

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This article is meant to provide some background about divorce and family law matters in the New York City borough of Queens, New York. As mentioned in prior blog entries, although the statutes are the same for everyone in New York State, there are different rules and procedures that change from County to County and even court room to court room. New York is made up of four Appellate Divisions.  Queens County happens to be located in what is called the Second Judicial Department and therefore the case law coming out of the Second Department is controlling for Queens County divorce and family law cases. The New York Court of Appeals is the highest court in New York. Therefore, case law from the New York Court of Appeals is controlling on Queens County as well as everywhere else in the State. Decisions from the three other judicial departments would be influential if the Second Department has not directly ruled on the matter. Although I practice all around the Long Island and New York City area, which includes both the First and Second Judicial Departments, my office and most of my cases are from areas located within the Second Judicial Department. This familiarity is helpful in my practice as a Queens County Family Law attorney.

Throughout my legal career, I have handled a great deal of cases in Queens County. Since my office is Nassau County, New York, conveniently bordering Queens, it is a short ride to the courts in Queens. Besides Nassau County, Queens and Suffolk are my highest volume geographic areas at this time. First I will discuss the Queens County Supreme Court, followed by information about the Queens County Family court.

Like everywhere else in New York, a person that wants to file a divorce case in Queens needs to use the Supreme Court. The Queens County Supreme Court is located at 88-11 Sutphin Boulevard Jamaica, New York 11435. Issues that arise for couples after a divorce (post-judgment) can be filed and dealt with at the Queens County Supreme Court. Supreme Court Justices are assigned cases that are filed in the Queens Supreme Court. Justices are elected Judges, but, Judicial Hearing Officers (who are usually former judges) may be assigned for trials or a hearing on one or all of the issues. The consent of the parties is usually obtained before sending it to a Judicial Hearing Officer since everyone has the right to have their cases heard in front of a Judge. In Queens, like every other County in New York, incidentally the only issues in a divorce that would go in front of a jury would be a grounds trial. Everything else would be decided by the Judge or a Queens Supreme Court Justice. Grounds trials, particularly, jury grounds trials are rare but they are a possibility. Continue reading ›

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Can the New York courts exercise jurisdiction over a child custody case?  In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.

The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States.  New York’s version of the Act begins in the Domestic Relations Law Section 75.  The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order.  First, a state must meet the definition of home state to be able to make an order.  If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there.  For children over six months of age, the home state is where the child resided for the previous six months.  If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status.  If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.

Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there.  If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction.  The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state.  In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction. Continue reading ›

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Separation agreements, pre-nuptial agreements, post-nuptial agreements, and stipulations of settlement may largely contain the same contents, and serve a lot of the same purposes, but vary in the timing that they are made. One purpose is invariably to define the respective rights of each marital partner in the event of a dissolution of the marital partnership. As a divorce mediator, New York City and  Long Island divorce lawyer, marital agreements are a big part of my practice.

Pre-nuptial agreements are made prior to the marriage.  Post-nuptial agreements are made after the parties are already married.  Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.  Stipulations of settlement of a divorce are made after a divorce case is filed to settle the issues necessary to be decided to get the parties divorced.

Pre-nuptial agreements can help couples enter into a marriage with the knowledge that  their rights have been defined in the unfortunate event that it doesn’t work out.  As a mediator, matrimonial and family law attorney, pre-nuptial agreements are an opportunity to work with a party or couples in love that could stay married forever.  The stress of the financial uncertainty that could result from a divorce can be removed.  Pre-nuptial agreements commonly identify how the property that the parties have already, going into the marriage, will be split up or retained as separate property, in case of divorce.  It can provide how much maintenance (alimony), if any, there will be upon a divorce.  Child custody, parenting time and child support matters become trickier to try to outline in a pre-nuptial agreement since a court always has discretion when it comes to what the custody and parenting time arrangements will be with a child.  Also, the dissolution of a marriage would in most instances qualify as a substantial change of circumstances to look at what custody and parenting time arrangements are, despite an earlier agreement, in the best interests of the children moving forward.  Still, the agreement could be used as a starting point on these issues and might prove influential if there is a dispute about the determination of the matter in the future. Continue reading ›

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The Uniform Interstate Family Support Act (UIFSA) has been adopted, in some form, by every state in the United States.  New York’s version of the law may be found in the New York Family Court Act Article 5-B.    The Act became necessary since parents and children end up having connections to multiple states.  A mechanism to determine which states have the power to initiate or modify a support order in each particular instance was needed.  The law also provides which state’s law should be applied when looking at child support issues.  New York and Long Island Child Support Lawyers have to sort out interstate support issues on a daily basis.

The child support laws can vary widely from state to state, therefore which state law is being applied is an important determination.  For example, people are required to support their children until age 21 in New York, unless they are sooner emancipated, while in other jurisdictions the age is 18.   The guideline amount of child support to be paid is different from state to state as well.   In New York, the guideline amount of support for one child is based on 17 percent of income while elsewhere different guidelines apply.

If there are proceedings simultaneously going on in two different states, the Act will help deterrmine which state should exercise jurisdiction.  If New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jursidiction.  New York employers, under the law, are supposed to treat income-withholding orders from another state the same as an order made in New York.  Orders from other states can be enforced by the Support Collection Unit in this state, as long as there is not a contest to enforcing the order without registering it. Continue reading ›

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Habeas Corpus is another Latin term, used in legal proceedings which means “You have the body”. This blog entry will refer to the use of the term in family law proceedings which, of course, has a different application than in criminal law proceedings which also make use of Writs of Habeas Corpus. Usually, the writ itself is an order from the Family Court or Supreme Court in New York directing someone that has a child to bring that child before the court on a specified date and time. The underlying premise necessary to support an application for a Writ of Habeas Corpus is that the child is being wrongfully held by another. This wrongful detention could be in violation of someone’s custody or parenting time order. New York or Long Island Family Law Lawyers can use Writs of Habeas Corpus as a tool to help their clients in child custody and parenting time disputes.

At times, the Writ might include a temporary custody order, but usually the Writ simply directs the production of the child. Further proceedings can ensue in the court after the production date regarding custody, parenting time, and perhaps contempt. If the person does not comply with the Writ, they will be in contempt and could face the wrath of the court which might include relinquishment of custody, incarceration, and likely a warrant for their arrest for failure to come to obey a court order. Sometimes, once the child is brought before the court, the court might direct the child to be given to the petitioner as they are entitled to custody or to exercise their parenting time. The Writ of Habeas Corpus proceedings often end on the date the child is brought to the court as the Writ is considered satisfied. At other times further proceedings are necessary.

So, what needs to be included in an application for a Writ of Habeas Corpus? The supporting papers should first set forth the relationship of the Petitioner to the children, such as Father, Mother, grandparent, or otherwise. Next, the application should detail that the subject children are in the physical custody of the Respondent and the time since that has been the situation. In cases where the Petitioner legally is entitled to custody, the application should set forth how the Respondent improperly and unlawfully removed or withheld the child from the Petitioner. This might mean that another parent or person took the children without authority to do so or refused to return the children after their allotted parenting time or visitation period. In cases where the Petitioner is not the residential custodial parent of the child(ren), the allegations to be detailed in the petition usually will allege that the Petitioner was improperly denied their parenting or visitation time. Continue reading ›

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An order to pay child support or maintenance, that is part of a divorce judgment, can be enforced by filing a violation or contempt petition in the Supreme Court after the entry of a Judgment of Divorce. If exclusive jurisdiction was not reserved in the Supreme Court for dealing with future matters involving child support or maintenance, then either the Family Court or the Supreme Court could be utilized to bring the violation or contempt application. People for which the order was initiated in the Family Court for spousal or child support can bring their violation petition in the Family Court. When there is a choice between the Family Court and Supreme Court, there might be different reasons or motivations for choosing either one. For example, a party might choose the Supreme Court because they also want to discuss enforcement of a property settlement or child custody issues in the same case. The Family Court separates support issues from child custody issues into different cases, which are handled in different court rooms at different times. Also, the Family Court does not have jurisdiction over a property settlement. Other parties might choose the Family Court as they want to focus on one issue at a time or to avoid the more detailed paperwork associated with the Supreme Court. As a New York City and Long Island Child Support Lawyer that handles cases all over the area, I regularly appear in both the Supreme and Family Courts.

Usually, the contempt motion is brought by what is called an Order to Show Cause when it is done in the Supreme Court. Typically, the structure of an Order to Show Cause starts with the order pages, which are signed by the Judge, directing the other side to come to the court and show cause why an order should not be issued punishing the person for failure to pay the maintenance, child support or other requested relief. After the order pages, an affidavit from the client that outlines the reasons for making the motion and what they would like the court to do usually follows the aforementioned order pages that were signed by the Judge. After the affidavit from the client, in most instances, an affirmation from the attorney follows. The affirmation from the attorney contains legal arguments and reasoning to support their client’s position.   Any exhibits in support of the motion are attached after the attorney’s affirmation.  The other side is given an opportunity to submit opposition papers to which the moving party may submit a Reply. A Sur-Reply from the person defending the motion occasionally is made which might be considered by the court. Sur-Replys are the exception rather than the rule and not always permitted by the Court.

Family Court, in most cases (but not always), is less paperwork intensive and a more streamlined process. A petition that details the violation is submitted and signed by the client and their attorney if they have one. The court then issues a summons requiring the respondent to appear in court. The law provides that if there is a support order that has not been paid, there is a presumption that there is a willful violation. The burden then shifts to the other side to show that the violation was not willful. Willfulness means the ability to pay and the failure to do so. An important task of the attorney for someone accused of failing to pay child support is to show that the violation was not willful, if in fact the support order was not paid. Therefore, the financial ability to pay is a big issue in hearing on contempt motions or violations. If loss of employment is at issue, the payor needs to show that the job loss was due to no fault of their own and that they have been making diligent efforts at securing replacement employment to no avail. The other side might argue that diligent efforts have not been made or that the loss of employment was the payor’s fault. Continue reading ›

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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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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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