If you are the noncustodial parent living in New York and the child lives in another state if it crucial that you “register” any child custody or visitation orders in the state that your child lives in.  This will put that state on notice of the parameters of the order in the event you must seek enforcement or modification.

           Oftentimes I am asked about jurisdiction when either parent  and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order.  Although there are many instances where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but then something happened to spark a modification or enforcement in the current custody order. 

           New York, as well as many other states) has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”) in 1999, which became effective in 2002.  This statute aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state  to avoid another state’s jurisdiction.  The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question of jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions for custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state.  These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent);  or where the child is in New York and there are concerns of abuse or neglect .  These are all scenarios that warrant the application of the UCCJEA.

          The UCCJEA sets forth alternative methods of asserting jurisdiction, which are :  1)  where it is in the best interests of the child based on the “significant connections”  to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.  Let’s take a look at each of these:

           Scenario 1:  This section only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

         Scenario 2:    This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed.  In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced (by the child protective services) that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

          Scenario 3:  This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists).  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from NY, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

         Scenario 4:  This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction). 

         When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

           Feel free to contact my office to discuss your family law issues.

          The outcome of a family law case and a criminal case arising out of the same facts and circumstances may directly, or indirectly, affect each other.  A Family Court judge will want to know the District Attorney’s position on a companion criminal case, to help make a determination regarding issues ranging from child visitation to abuse/neglect.  And although the District Attorney’s office may not have such an interest, it is advisable to keep your attorney (as well as the prosecuting attorneys) aware of what is going on in the other case.  Additionally, it is ideal to have the same attorney representing you on both cases if possible in an effort to consider all possible resolutions.

          There are areas of law that are esoteric in that they have very particularized principles, rules and laws that apply to only to that specialty.  It is often said that the area of family law encompasses a myriad of disciplines and therefore requires, at the very least, a basic understanding of many different principles in several areas of law.  One of those disciplines is criminal law, which certainly overlaps, if not collides in many instances, with family law.  Criminal law is one of those practices that require some understanding of its ramifications on the highly sensitive and very volatile area of family law.  I would like to address how the penal law statute, and the criminal procedure laws, apply in Family Court (and in Supreme Court in divorces) and thus impacts the overall outcomes.

          First, family offense proceedings, cases where the party is seeking an order of protection, is certainly one area where the criminal component comes into play. A party related by blood, marriage or consanguinity can get a civil order of protection in Family Court, and in Supreme Court if the parties are spouses in the middle of a divorce.  The order proscribes one from coming within a specified distance of another (including children) and/or from harassing, assauting, menacing, etc. that other party.  In addition, those circumstances, where the accused has caused some physical injury or serious physical injury, may also lead to an arrest of that party and is in fact very likely.  In the event there is an arrest, even though the Criminal Court may issue an order of protection, the Family Court may also issue an order based on the same set of circumstances (although the duration of the respective orders differ).  Although all Family Court cases do not warrant a companion criminal case, the court can certainly direct a litigant to the District Attorney’s office, the police or civilian agency if a criminal investigation is justified.  Conversely, however, a similar case that ends up in an arrest will not necessarily be directed to Family Court for a “civil” order of protection but the victim may certainly go to Family Court, particularly where there are children involved.

          Next, child abuse or neglect cases often have a criminal component, involving one or both of the parents or “persons legally responsible”.  Where a parent causes physical injury, serious physical injury or the threat of either, he or she subjects him or herself to possibility of a criminal charge of assault (physical or sexual), endangering the welfare of a minor or other related criminal charge.  In these cases, the police, as a “mandated reporter” must refer the case to the child protective agency.  If, however, the case gets to the agency first, the agency may refer the case to the District Attorney’s office for criminal investigation and/or prosecution.  Depending on the nature of the facts and circumstances, the case may definitely have both a Family Court and Criminal Court component comcomitantly.  The outcomes of both differ significantly, a criminal case subjects one to incarceration, probation, fines, etc, while a abuse or neglect case in Family Court may result in supervision by the agency, the child being placed in foster care and/or termination of parental rights (in addition to a whole host of services being provided to the family to ameliorate the initial problems).

          In child support cases, there is also the possibility of the application of the criminal statute.  Although there is a penal law section that is applicable to cases for non-payment of child support, these cases are rarely prosecuted.  Nonetheless, there are instances where incarceration may be imposed for a non-custodial parent who has been found to be “willful” in not making child support payments.  The penal law makes it a misdeamor or felony crime for failure to pay child support depending on the amount owed.  Although it is rare that parties are prosecuted on the state level for not paying child support, the law  remain on the book.  On the other hand, there is a provision in the Family Court Act that authorizes a judge to impose a period of incarceration of up to six months for a party’s failure to pay for no justified reason, although this is not considered penal in nature. 
 

          There are advantages and disadvantages to pursuing a case in Family Court as opposed to Criminal Court and vice versa.  These distinctions are based primarily on the different procedures, standards of proof, applicable provisions, etc. that are particular in each court. For example, in criminal cases the burden of proof is on the prosecution and the standard of proof is “beyond a reasonable doubt”.  This means that the prosecutor must prove that the party (defendant) accused of committing the crime did in fact commit the crime, by proving every element of the crime.  They must do this by putting on a case where there is not just a “reasonable” doubt but a doubt beyond what a reasonable person would have.  While in Family Court cases, either the agency ( CPS/ACS or Corporation Counsel) or the other party has the burden of proving that the party petitioned (respondent) did in fact commit the act alleged  The standard of proof in these cases is either a “preponderance of the evidence” or “clear and convincing evidence”, depending on the phase of the case. Additionally, other rules of evidence, i.e. hearsay, differ in their application, as well as the use and application of constitutional provisions. The penal law, criminal procedure law, the civil practice rules, as well as some administrative codes apply to criminal cases, while the Family Court Act, Social Service Law, Mental Hygiene Law, civil practice rules apply to family law cases.  Although some of these principles overlap, their applicability to the different cases determine the manner in which they govern, which ultimately affects the outcome of the case. 

          Of course there are sections of the penal law that apply regardless of which court the parties are in or the type of case.  Perjury, which is lying under oath; filing a false report/claim; forgery; contempt (although civil contempt is more likely); illegal possession of an official document are all criminal charges that may result from a case in Family Court or any other court for that matter. Since Family Court judges have no jurisdiction to proceed on a Criminal Court case and the power to prosecute is within the District Attorney’s office, if there has been a crime committed in a family law case, that court must refer the case for prosecution.  The discretion to prosecute lies with the District Attorney’s office, so merely referring a case to the office does not guarantee a criminal investigation or prosecution.  Family law issues that arise in Criminal Court do not necessarily need to be referred to the child protective agencies but certainly do not go unnoticed.  In other words, criminal cases that raises some issues of abuse or neglect or child support violations will certainly be addressed by the court but more often than not was already brought to the agency’s attention.  Again, since police officers are “mandated reporters”, they will call the agency at the time of an arrest therefore giving the agency the opportunity at the outset to file a petition.

          New York has established a courtroom specifically designed to handle the intersection of criminal and family law, where there is domestic violence.  The Integrated Domestic Violence Part’s main objective is to mainstream the overlapping issues, ensure  consistent rulings & outcomes and to provide trained workers to address the cornucopia of issues involved in these cases.  And although it certainly helps to have one judge hear all of the issues, both criminal and family law, there are times when a different set of issues result in the end.

           Feel free to contact us to discuss your criminal or family law case.

           When finalizing a divorce, contested only,request that the divorce judgment specifically indicates that the Supreme Court should have “exclusive” jurisdiction in cases where there are intricate issues regarding child support and/or custody.  This will ensure that the original judge that decided the matter will hear violations, modifications and/or enforecement issues and not a Support Magistrate or Referee who has no knowledge or background of the case.

         Despite our very lax moral standards today, married parents are still treated differently from  never married parents in Family Court, Supreme Court and Criminal Court in New York, based on traditional values.  Depending on whom you ask, the distinction can be viewed as beneficial in outcome to either parent and favorable with respect to treatment by the courts. 

         Of course divorce only applies to married individuals so that is the only way any other related issues arising out of the marriage can be heard in Supreme Court.  Although once the parties are actually divorced, child support, alimony (maintenance), property distribution may be heard in Supreme Court.  However, there are limits to this, where a violation , contempt or modification of some property issue, arising out of the divorce judgment, is part of the application to that court and where the divorce judgment specifically states that the Supreme Court has “exclusive” jurisdiction.  Otherwise, the issues of child support, child custody/visitation will be heard in Family Court once the parties are no longer married.

         In paternity cases, there is a “presumption of legitimacy” which is the assumption that a child born out of a legal marriage is a child of the parties.  This presumption can be rebutted by either party but may be difficult if there is no other identifiable person conceding paternity.  Particularly for child support, a father’s claim that he is not the father, despite the fact that the parties were married at the time of conception, will not automatically absolve the father of his obligation to support the child.  The courts can deny his application based on the theory of “estoppel“.

         In child support cases paternity must be established before the petition can be heard by the court.  However, again where the parties are married or were married at the time of conception, the court will assume that the husband is the father.  Also, with respect to married parties where only the mother is the biological parent, the stepparent may be obligated to pay child support if he has been providing support for the child during the marriage.  This would not be the case if the parties were just living together, a paramour has no financial obligation to the child of his partner even if he has done so in the past.

         Spousal support may be requested in Family Court when the parties are married.   If there is a divorce pending however, the court will try to direct the parties to address this issue in Supreme Court as part of the divorce. 

         In child custody or visitation cases, the fact that the parties were married, assuming they lived together, will help the court to determine the relationship between the parents and child, the involvement of both parents with the child, the environment maintained with both parents being present, the standard of living enjoyed by the child with both parents in the home-amongst a host of other factors.  Since married parties are viewed as much more focused and able to provide a stable environment, they are given the benefit of starting out of level playing field.  This however, is not the case when there is a history of domestic violence or child abuse.  There is no distinction where parties are or were married but one of the parents is the stepparent.  Stepparents have no rights to petition for custody or visitation of their stepchild.

         In adoption proceedings, again if the parties were married or are married, he must consent to terminate or surrender his legal rights.   And unlike cases where the father has abandoned the child, a father that was married to the mother at the time of conception must be put on notice and given the opportunity to consent or object.

          In guardianships, where the parties are married but one is the biological parent, the other being the stepparent and the other biological parent is deceased the stepparent may petition for guardianship only.  While if the parties were not married, the stepparent would have no “standing” to petition the court for either custody or guardianship since the child has one biological parent still living.

         In name change cases, if the child was conceived out of a legal marriage, the court will not permit the changing of the child’s name if the other parent does not consent.  Particularly where the mother wants to change the child’s name from the father’s name to someone else’s name, the court will require a showing of being in the child’s best interest.  There are exceptions, for instance in cases of domestic violence or child abuse/neglect.  A child born out of a legal marriage will more than likely have his fahter’s name (even if the child is not biologically his), whereas non-married parents must sign an Acknowledgement of Paternity to have the father’s name or add his name  to the birth certificate or to be considered the “putative” father.  The former will negate the need for the court to establish paternity in child support or child custody matters, while the latter will not.

        In juvenile delinquency or PINS cases, an integral part of the court process is the investigation conducted by the Department of Probation.  Their job is to assess the child’s home environment, academics and psychological/emotional issues involved with the family.  Again, the fact that the parents are or were married gives the court the impression that there is or was stability in the home and will use this to determine what the disposition should be if the case actually makes it to this stage.

          In domestic violence situations, an order of protection may be filed in Family Court where the parties are related by blood, consangjity or marriage or has a child in common.  However, where the parties are married and order of protection may be obtained in Supreme Court as part of a divorce action.

          Procedurally, there is no need for registering with the Putative Father Registry if you were married to the mother at the time of conception.  This registry serves the purpose of putting the non-married father (where paternity has not been established) on notice of the child being the subject of adoption, termination of parental rights and/or foster care.

         Filing any type of petition in Family Court will require a copy of the divorce judgment where the parties were married.  The court will request the status of the marriage if there is no divorce.

Feel free to contact my office to discuss your family law matters. 
 

It is advisable to get as much information beforehand about the judge your case will be heard by.   Before the scheduled court appearance visit the courthouse to ask questions about the judge, the attorneys, etc. so that you have some idea of his or her practices, tendencies, beliefs, etc.  And if possible, consult with an attorney that has experience with your sort of case and the particular judge.

          It is no secret that fathers and mothers are treated very differently in the courts, whether that be Family Court or Criminal Court, judges, lawyers, social service workers, etc. all have their biases about either or both parents.  Consequently, the outcome of a case with same or similar facts may render a very different result depending on the particular position either parent takes.  There are statistics on the number of cases where sole custody is awarded to fathers, joint custody to both parents and sole custody to mothers, but nothing is up to date.  However, it is blatantly obvious that there is still some gender biases in awards of child support to custodial fathers, sole custody awarded to mothers and orders of protections issued to both. 

          Let us first take a look at fathers petitioning the courts for sole custody of their children.  Many studies, articles and statistical data indicate that approximately 10%-20% of fathers are awarded sole custody of their children.  However, this number fluctuates drastically depending on whom is asked.  Women’s rights groups and domestic violence prevention advocates will indicate that there are more fathers getting sole custody of their children, including those that have been accused of child abuse and domestic violence, than the data reports.  However, many fathers’ rights organizations report that only a small percentage of men are awarded sole custody, even in cases where women have been guilty of parental alienation and falsely reporting child abuse or domestic violence.  However, what is certainly not debated is the change or shift in the paradigm since the 1960’s. Up until the 1970’s, the courts consistently ruled in favor of mothers when it came to child custody, under the “tender years doctrine”. This was a judicial presumption that gave custody to mothers since they were considered the nurturers and the primary caretakers, and thus much more suitable for custody of young children than fathers.  This antiquated thinking was based on the pre-women’s movement belief that women were inferior to men, mainly capable of only tending to the home and family.  It was the second wave of the women’s movement, where the focus was on the inequality of laws and cultural inequalities, that somewhat served as the impetus for the “best interest of the child” standard in lieu of the “tender years doctrine”.  This transformation made it where it was no longer an “inherent” right of women to have custody. 

         Today, there are several factors the court will consider when applying the “best interest of the child” standard in child custody cases (along with all other cases involving children in family law).  And although one very important factor considered is the parent that was the primary caretaker, there is still gender bias in these cases.  The courts will not necessarily automatically ignore a father’s request for custody when he has been the primary caretaker, but there are many times when extra attention will be paid to “rehabilitating” the mother so that she has a fighting chance.  I have seen instances where the judge will give the mother every opportunity to prove herself by directing that she goes to parenting class ( or therapy even), by suggesting that she become more involved in the child’s life, etc.  While if it were the mother that was the primary caretaker and the father requesting custody, the courts will usually try to dissuade or discourage him from proceeding on a custody petition.  Oftentimes, court personnel, lawyers and mental health professionals will also attempt to influence the father this way.

         In child support cases, prejudices of the courts also come into play.  Although I have firsthand knowledge on the number of child support petitions filed by custodial fathers, as compared to those filed by custodial mothers, few will ever admit that there is a disparity based on bias.  For instance, more often than not, the custodial father will forego pursuing child support, while it is almost unheard of for a custodial mother put off seeking child support.  Since there is still a huge gap in the earning potential between men and women, the fact that child support is not sought by custodial fathers typically does not compromise their child’s standard of living as much as if it were the other way around.  Nonetheless, when the petitioners are fathers the courts generally take the noncustodial mother’s earnings as what is reported by her, as opposed to requesting that they prove what they can earn.    Furthermore, women and men may have the same job title or position, but the court will impute earnings for each using the same criteria differently.  In addition, women violators are not sanctioned as harshly as men who violate their child support orders.  And although fathers do in fact account for more than half of the payors of child support, the proportion of violators amongst gender may be near to or slightly less than equal.

         Many believe that having a women to represent fathers makes a huge difference.  And in many respects I think that there is some validity to that.  However, in cases where the judge is pretty fair in his or her decisions, a competent attorney is all that matters.

          Feel free to contact my office to discuss your family law matters.

During the 1980’s and 1990’s it was common for many babies to leave the hospital without being named and now many of these children (or young adults) still have birth certificates that indicate “Baby boy Doe”.  In these instances it is always advisable to have the birth certificate changely almost immediately.  However, many did not and are now faced with the imminent need to have a complete birth certificate.  In that case a court order is necessary because many hospitals do not have the records for these births ( as well as the Dept. of Health) and thus a change in name is required by obtaining a court order. 

          I am often asked about name changing for children when the biological father abandoned their child, when there is a step-father who takes care of a child, when the wrong father has been named on the child’s birth certificate, among many other situations where there is such an interest.  Although the laws in New York on name changing is pretty lax for an adult, it is a bit more stringent when it comes to a child.   The main reason is because the courts want to ensure that when the parent or guardian is seeking to change the child’s name to the name of someone other than a biological or adoptive parent that it is in the child’s best interest to do so. 

         In New York, a parent or guardian can change the name of a minor by either filing a paternity petition (if paternity has not been established) or a name change petition in Family Court.  Name changes can be filed in Family Court for children up to the age of 18 by the parent or guardian and from 18 years to 21 years old by the individual him or herself.  Anyone older than 21 years must file in either Civil Court or Supreme Court (where filing fees apply and the rules differ a little bit.). 

          Where the parents were not married and the name change request is for the child to have the biological father’s last name, or that of another person, paternity must be established first.  Establishing paternity means either having the biological father sign an Acknowledgement of Paternity or by filing a paternity petition in Family Court.  It is much quicker and easier to have an Acknowledgement of Paternity signed since this is a form provided by the Dept.of Social Services.  If a paternity petition is filed in court, the biological father must consent to paternity to expedite the order of filiation being issued by the court, otherwise the matter will be prolonged by a trial being held to determine paternity before proceeding to the name change.  Once an order of filiation is issued, it will be sent to the Dept. of Health and Mental Hygiene (”DOHMH”), which will approve the order and then send it back to Family Court.  Family Court will then have both parents complete and sign a form consenting to the name change, subsequently the form will be sent to the Dept of Health which will then issue the new birth certificate within 10 weeks (typically).

         Where the parents were not married and one parent is requesting that the child’s name be changed to a step-parent’s last name, or someone other than the biological parent, consent of the biological parent may be necessary, this is the case whether the child had the biological father’s last name or not.  First the step-parent will have to submit an affidavit acknowledging that he understands that this is not equivalent to an adoption and that there are no legal rights of parent-child.  When the petition is filed, the biological father must be put on notice, giving him the opportunity to object.  If he objects he must inform the court of his objections and his reasons.  If the objections are reasonable, the court will deny the name change.   However, the mere fact that the biological father objects does not necessarily mean that the court will not approve the name change.  If the parent or guardian seeking the change has a substantial reason why the name change should be granted, and the court finds that it is in the child’s best interest, the petition may in fact be granted.  In situations where the biological father has abandoned the child, not providing any support, not visiting or making any other contact with the child for a period of at least six (6) months (consecutively), then the court can grant the petition.  Also, in cases where there has been serious domestic violence or repeated child abuse by that parent, the court will more than likely allow the name change. 

         Filing a petition for a name change is not to be confused with correcting a name or adding a first or middle name to a child’s birth certificate.  If all that is needed in a correction, this can be done by contacting the DOHMH directly.  However, if there is a problem with locating the hospital records, if the child was not born in New York or for some other reason birth records cannot be located, a court order may be necessary, which requires that a name change petition be filed.    
          In situations where the biological father agrees to a surrender, a termination of his parental rights or consents to a name change, this certainly speeds up the process.  Proof of either must be provided along with proof of paternity, in the methods mentioned, unless the parents were married at the time of the birth.  Randomly changing your child’s name is not a matter of making the request, biological parents have rights unless those rights were terminated or surrendered and the court is aware of this.  I often recommend that the party seeking the change approach the other parent with their intention beforehand in an effort to obtain consent.  Assurances may have to be made that some obligations of that parent may be waived in exchange for the name change.

         Changing the child’s name does not absolve the other parent of his/her obligation to pay child support nor does it abrogate their right to seek custody or visitation.  Conversely, the step-parent may be held responsible for child support for the child that has legally assumed his name but may be denied custody or visitation of that child in the event of a divorce or separation from the child’s biological parent.

          Feel free to contact my office to discuss your family law matters.