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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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Neglect or abuse allegations come up frequently in child custody matters. The purpose of this blog entry is to discuss some of the nuances of how abuse and neglect accusations come into play in a custody case. Like me, Long Island Child Custody Lawyers and attorneys that handle cases in and around the New York City area acquire this information through years of practice.

A notable procedural matter in the New York Family Courts concerns when an abuse/neglect case is pending at the same time as a custody case involving the same parties. In most instances, the custody case cannot be resolved until such time as the abuse or neglect case is completed. Therefore, the custody case usually will be assigned to the same Judge that has the abuse/neglect case.   The custody case will then follow along with the abuse or neglect case.   In the New York family courts an abuse/neglect case is commonly referred to as an “N” docket case as the docket number starts with the letter “N”. Custody/visitation cases (parenting time) cases in the family court are called “V” dockets as the docket numbers in those cases begin with the letter “V”.

Often, an N-docket case might be resolved if the Respondent in the N-docket case agrees to V-docket custody be given to the other parent or petitioner in the custody case.   What this means is that the County or protective services agency that is proceeding with the case against the Respondent will request to withdraw the N-docket case if they are satisfied that the child is safe with the other parent or other party in the V-docket matter. If there is not an agreed upon resolution, and the N-docket case proceeds to a hearing, the Judge that is listening to the evidence on the N-docket case can consider whatever evidence is adduced at that hearing when deciding the V-docket child custody cases. Continue reading ›

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The Long Island contingent of the New York Association of Collaborative Law Professionals has been making a push to start implementing streamlined protocols in order to further save time and expenses to divorcing couples that have chosen to work collaboratively. Collaborative law is an alternative to litigation, but unlike mediation, each party has the representation of trained professionals that make up the team in this non-adversarial divorce process. Typically, the team includes each party having their own collaboratively trained attorneys, divorce coaches, and one financial neutral although the necessary professionals can vary from case to case. As a New York City, Long Island and Nassau County Collaborative Divorce Lawyer, I believe in the collaborative law process. I am pleased that we are now using the streamlined initiatives here on Long Island. I want to use this blog entry to reiterate why collaborative law is the gold standard for divorces and as an opportunity to talk about the streamlined collaborative divorce process.

Collaborative law is the gold standard for divorces. Everyone works together to stay out of court and to work with a team of well trained professionals equipped to deal with the legal, financial and emotional aspects of dissolving a marriage. Parents put their children first in the process. The process is designed to help a couple safely and sensibly transition into two independent households. Collaborative law is a moral and honorable way to divorce with integrity. Most importantly, the process works to resolve issues and get couples to agree.

The streamlined process essentially is broken down into four phases. Phase one is putting the team together. Phase two is information gathering. Phase three is brainstorming options and reaching agreements. Phase Four is moving on with the rest of your life, your new story! Continue reading ›

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After agreeing upon the terms of a settlement in a divorce mediation, the drafting attorney usually will put together the settlement agreement. It might be in the form of a separation agreement or a stipulation of settlement. Since I am a New York City area, Suffolk County and Nassau County divorce lawyer and divorce mediator, I have always been the drafting attorney on my mediated cases. It is recommended that each party take that settlement agreement and have it reviewed with their own attorneys. The purpose of the review attorneys is to make sure that each party understands their rights, understands what they are signing and that what they agreed upon is in fact in the agreement. This is the person that could give them the legal advice they need.

Everyone that goes through alternative dispute resolution has questions. Would I do better if I went to court? Is this a fair agreement? People that go through collaborative law or litigated cases receive the advice and representation of an attorney throughout the process. Collaborative law, for those, who have not heard about it, is another non-adversarial way to resolve matrimonial and family law cases. I like to think of collaborative law as a method somewhere in between mediation and litigation however it is non-adversarial, like mediation. Feel free to click around my blog, website or call to talk about collaborative law. This blog entry is geared more so about divorce mediation.

The divorce mediator’s role is as a neutral to help people settle their differences and formulate an agreement to move on with their lives. When I shift gears into my role as drafting attorney my job is to ensure that the understanding that the parties made is put into proper form to be a legally binding agreement that settles the case. Usually, in the case of a divorce, that means to settle all of the issues that a Judge would have to decide had the case proceeded to litigation and a trial. In this blog I will go through topics that I include in my settlement agreements when acting as a drafting attorney. For each topic I will touch upon some of the considerations that a review attorney, which is sometimes my role, can address with their clients to make sure their client is armed with the legal information they would need to making a knowing, intelligent, and voluntary agreement for their divorce or other family law issue that is mediated. Continue reading ›

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Each County has some particular nuances that make practicing divorce and family law a little different in each venue.  Although most of the same laws are applicable throughout the state, besides differences in geography, each court, as well as each judge has their own rules and procedures.  As a New York City, Long Island and Nassau County Family Law Attorney, I have had the opportunity to see geographic differences in my practice.  Although I do cases all around the area, my highest volume at this time is in Nassau County.  The purpose of this blog entry is to provide information about divorce and family law practice in the Nassau County Supreme Court and Nassau County Family Court.
Separation proceedings, divorces and post judgment divorce proceedings are the types of cases that we mostly handle at the Nassau County Supreme Court.  The Supreme Court of Nassau County has an address of 100 Supreme Court Drive Mineola, New York 11501.  Matrimonial cases are usually assigned to a court room at the Nassau County Supreme Court Matrimonial Center, which is located at 400 County Seat Drive Mineola, New York 11501.  Divorce cases are initiated by purchasing the Index Number at the Nassau County Clerk’s office which is located at 240 Old Country Road Mineola, New York 11501.  All the legal documents on file for the Supreme Court cases become part of the records maintained at the Nassau County Clerk’s office.

At the Nassau County Matrimonial Center a case is assigned to a:   Justice of the Supreme Court; Judicial Hearing Officer; or a Special Referee.  There are mediation services to help aid in resolution of matters to minimize the litigated issues.  There is a Model Custody part at the Nassau County Matrimonial Center specifically designed for child custody and parenting time disputes.  I frequently find myself at the Nassau County Supreme Court, which is less than five miles from my office, whether it is to follow up or appear on one of my cases. 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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No matter how amicable or contentious a divorce case was, issues can arise after judgment that can be dealt with in the Supreme Court.  As a Nassau County Divorce Lawyer, I frequently defend against or bring applications in the Family Courts in Long Island, New York City and the surrounding regions of New York involving post judgment child support, child custody, maintenance or orders of protection issues for both my ex-husband and ex-wife clients.  The Supreme Court, however, is usually available to deal with these post judgment issues as well.

Sometimes, the issues must be dealt with in the Supreme Court such as for enforcement of a property settlement, an attempt to vacate certain terms of the divorce, or in the event that exclusive continuing jurisdiction is reserved in the Supreme Court for future matters involving child support, child custody, or maintenance. Often times the Supreme Court is selected to deal with issues over the Family Court as the Supreme Court can deal with the issues as part of one case, while the Family Court requires the issues to be dealt with in separate cases.  For example, support issues are assigned to a Support Magistrate while custody issues may be assigned to a Referee or a Judge in the Family Court.   This blog entry is intended to outline some of the more common issues that the Supreme Court can deal with that come up soon after or many years after a couple has divorced.  More specifics about the specific areas of law are covered in other blog entries and on my website.

Contempt or enforcement applications often come up after a divorce.  These applications are done when either the former wife or husband is asking the court to punish the other party for their disregard of the order or to help them enforce the terms of the divorce.   The contempt allegation may be that one of the parties violated:  an Order of Protection that was issued as part of the divorce; the provisions involving a property settlement; the requirement to sell the marital residence; the custody and parenting time provisions in the divorce; the terms of the payment of child support or maintenance (formerly known as alimony); or other provisions that were a part of the terms included or incorporated into the Judgment of Divorce.  Remedies for contempt could be money damages, incarceration, modification of the previous terms, or the award of attorney fees among other possibilities. 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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An uncontested divorce means that every possible issue necessary to settle the divorce is agreed upon.  There are different processes available to settle all the issues.  Kitchen table discussions between couples is always available, divorce mediation, collaborative law, four way meetings with counsel and clients, and attorney negotiations are some of the more common.   If there is any issue that is not resolved, such as what the child support payments are going to be, or how the equity in the marital residence is going to be divided, then the divorce cannot yet be called uncontested.
It does not mean that the case needs to become a contentious battle if it is not at uncontested status as of yet, rather it just means that there are things that still need to be resolved.  Once the issues are resolved the case can become uncontested.  I have been dealing with matrimonial and family law cases all over the New York City area, Nassau County, and Suffolk County for a number of years now.  As a Long Island Divorce Lawyer, many of my cases start as contested only eventually to become uncontested.  Some cases, however, are not settled and stay contested.  That is how I gained my litigation experience.  Most of my cases that I handle as a divorce mediator end up being uncontested after spending a little time working together.
The first topic that needs to be dealt with is grounds.  One of the seven grounds must be selected as applicable and not disputed to meet this first hurdle.  The most commonly selected grounds since the 2010 enactment of the no fault divorce in New York is in fact the no fault grounds, Domestic Relations Law Section 170(7), the irretrievable breakdown of the marriage.  It must be agreed that one of the parties will be granted the divorce based on the selected grounds.  Under the No-Fault law, it’s nobody’s fault, the marriage just did not work or was irretrievably broken for at least six months.  One of the other grounds could be selected as well which are:   Domestic Relations Law Section 170(1) cruel and inhuman treatment; Domestic Relations Law Section 170(2) abandonment; Domestic Relations Law Section 170(3) imprisonment; Domestic Relations Law Section 170(4) adultery; Domestic Relations Law Section 170(5) living separate and apart pursuant to a separation judgment or decree; or Domestic Relations Law Section 170(6) living apart pursuant to a separation agreement.  Even if one of these other grounds is selected, the party who is not being granted the divorce does not have to admit the grounds, they can simply neither admit nor deny the grounds.  That’s enough for the grounds issue to be resolved. Continue reading ›

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Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing.  Pendente lite is latin for “while the action is pending.”  Pendente lite orders are not intended to settle  the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case.  They are supposed to tide things over, so to speak, until the rest of the case can be decided.  There are various things that your New York City or Long Island Divorce Lawyer  might ask the court to rule upon in a pendente lite motion.  Motion practice usually consists of motions, opposition, cross-motions and any reply papers.

Custody and parenting time might be a part of a pendente lite order.  This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children.  Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved.  The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon.  A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time.  Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.

Exclusive use and occupancy of the marital residence might be requested.  Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property.  The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties.  In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate.  Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property. Continue reading ›

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