Occasionally I like to inform or enlighten the pro se litigant about their rights and the court’s duties when appearing in court.  The courts are designed to hear evidence, determine credibility and make decisions no matter the type of case or the court the matter is heard in.  However, there are some nuances that apply to family law related cases that distinguish it from other courts, for instance Supreme Court.

Here are some of the most vital things litigants should know:

1.   You have the right to an attorney at any stage of the case.  So even if you initially decided to forego an attorney and appear pro  se, you have the right to change your mind at any point.

2.   You have the right to review most of the evidence that is presented against, except for forensic evaluations.  This means that if the other party provides the court/judge with a document, you have the right to review it upon submission.

3.   You have the right to request any informaton, referred to as discovery, from the other party when your case is scheduled for hearing/trial.  A formal and written request is recommended, but making the request in court should suffice.

4.   You have the right to request the court to explain any procedure that you do not understand.  Although the court is not responsible for providing legal advice, you can and should ask the judge to explain anything you do not understand.

5.   You have the right to have an actual judge, not referee, hear your child custody or visitation matter.  Although your case may take longer, you do not have to consent to a referee being the final decision maker in your case.

6.  You have the right to have everything that is said in the courtroom recorded.  This includes any preliminary information about your case, i.e. if the other party  is late, has another person in the room, etc.

7.   You have the right to know who all the attorneys are that appear in the case.  This includes the other party’s attorney and the attorney for the child (formerly known as the law guardian.)

8.   You have the right to not accept service of a legal document that is subject to the service under the laws of the state.  If the judge asks you if you will “accept” service, you can answer in the negative, which will require that the other party to serve you properly.

9.   You have the right to object to anything the judge does that you do not agree with.  If the judge makes a ruling that you do not agree with, you can state your “objection” while the matter is being recorded, this will preserve any appealable issues you may have.

10.  You have the right to have your case handled in a professional, impartial and effective manner no matter the circumstances.

Although the practicality of exercising any  of these rights may be challenging, it is imprudent for you to understand the implications for waiving certain rights.   I suggest that you prepare yourself by doing as much research you  can before appearing in any courtroom regardless of how successful you think you will be.

     There are always ethical challenges in all areas of law, but particularly in family law, divorce law and criminal law cases.  In New York, our rules are somewhat based on the national standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, oftentimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  That goes for the attorneys, judges and other legal advocates, i.e. attorney for the child.  

     In child custody cases, as the attorney for either parent, it is inevitable that personal beliefs about which one is the more “fit” parent arises.  In a situation where, for instance, the custodial mother has always been the primary caregiver, which includes preparing meals for the children, dressing the children, tending to them when they are sick, taking them to doctors/dentist appointments, encouraging practice of religion, encouraging and supporting social activities/engagements while failing to foster a relationship with the noncustodial parent, should that custodial parent be provided with representation that supports her maintaining custody?  Or should the noncustodial parent who puts education first, over health concerns of the child, prevail in a child custody case?  Well, morally, depending on one’s own personal beliefs, one may say that there is almost nothing else in children’s lives that deserve more emphasis than academics.  However, as the attorney for that custodial parent, advocacy on behalf of that client must be done zealously, diligently and professionally with all personal judgment aside.  Pursuant to the Disciplinary Rules, an attorney must not fail to carry out the contract of employment, shall not prejudice or damage the client during the professional relationship and shall advocate on behalf of that client zealously.  Furthermore, if the attorney is aware of controlling legal authority that is in the noncustodial parent’s favor in the same or very similar circumstances, he/she is obligated to reveal such information to the court if the other attorney does not, when presenting the case.  

      In child visitation cases, conflict typically occurs when the custodial parent refuses the noncustodial visitation or when the custodial parent insists on supervised visits.  As attorney for the custodial parent, unless there is proven history of domestic violence, child abuse and/or drug/alcohol abuse, exercising zeal and diligence in advocacy can be quite a struggle.  For attorneys who firmly believe that all parents should have free and unfettered access to their children, the tension in representing custodial parents who do not share in this belief presents a very difficult task.  However, pursuant to the Disciplinary Rules, the attorney must not intentionally fail to seek the client’s objectives through reasonable and available means, despite his/her personal views.  This, however, does not mean the attorney can not express his/her opinion; it just restricts the application of that opinion to the client’s overall objective and thus representation of him/her.  In situations like these it is sometimes very helpful when the attorney for the child reports that the his/her client’s position or the attorney for the child’s position (where he/she substitutes his/her own judgment) actually supports the attorney’s personal view.  Conversely, as the attorney for the noncustodial parent who has been the aggressor in domestic violence incidents, the drug or alcohol abuse or the child abuser, the conflict is just as profound.  What is the attorney to do when the client/drug abuser discloses that he/she is still using drugs but continues to insist on visits.  Well, the ethical rules do not limit its applicability in this particular circumstance.  The attorney still has an obligation to advocate zealously on his/her behalf, not prejudice or damage the client and more importantly, preserve the client’s confidences (except where permitted by another Disciplinary Rule or required by law).   

      The same holds true in child abuse/neglect cases.  As attorney for the noncustodial parent who is the abuser, in domestic violence, child abuse or drug abuse cases, there is typically an overwhelming conflict in ethically representing the noncustodial/abuser parent.  Many times both parents, and/or “persons legally responsible”, may be parties in child abuse/neglect cases.  It is not uncommon for one of the parties to pay for both parties’ counsel fees (since it is a conflict for one attorney to represent both parties).  In a situation like this, it may not seem so odd that the paying party directs a) how the attorney represents his/her client; b) how the attorney advises the client or c) even how the attorney communicates with the client.  This however, clashes with ethical rules.  The attorney must exercise professional judgment solely on the client’s behalf, disregarding the desires of others where it might impair the attorney’s own judgment.   

     In child support cases, the challenge is not minimized just because the Child Support Standards Act (“CSSA”) governs.  There are still many situations where ethics are tempted by moral and personal judgments.  Many of us are sympathetic to noncustodial parents who have other legitimate financial obligations that limit their ability to provide for their children as provided by the statutory guidelines.  Noncustodial parents who have not and do not run from their obligation to support their children, are at times unduly burdened by the obligation mandated by the statute.  As the attorney for the custodial parent, it can be unnerving to know that the noncustodial parent may be forced to resort to, what most of us would agree, is somewhat demeaning living arrangements, particularly where that party has child visitation at that home.  However, again, the Disciplinary Rules does not permit personal views to compromise our ethical obligations.  In addition, as the attorney for the noncustodial father, particularly, even questioning paternity or filing a paternity action may pose an ethical problem if that attorney does so solely for the purpose of harassing or maliciously injuring the custodial parent. That attorney could not even advise his/her client to not pay the court ordered child support, even though paying is improbable, unless he/she has a good faith legal basis to challenge the order. 

      In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications or further exploration of income that may not be consistent enough to factor in property distribution, for example.  However, ethically speaking an attorney may not participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission.   

      Many of these cases involve domestic violence criminal elements that also pose ethical challenges.  Where, during an appearance at the divorce proceeding, for instance, the attorney and his/her client are in the hallway and the other party assaults his/her client in front of the attorney.  That attorney may have to withdraw as counsel if he/she may need to be a witness in the domestic violence criminal trial.  Or the attorney may choose not to put his/her defendant/client on the witness stand, despite the client’s insistence, in a domestic violence criminal trial where that decision is based on their professional judgment.  By far one of the most challenging positions attorneys are put in is in circumstances where their client has disclosed the intention to commit a crime; there are several factors the attorney must take into account before exercising discretion in whether or not to disclose that information to the authorities.   

     Although many of these rules may be excused by another provision of the Disciplinary Rules, there are some that are explicitly prohibited.  Some situations are not as clear cut as others and require that the attorney exercise sound judgment.  Although I discussed several rules here there are many more that may apply in the described scenarios. The bottom line, it is not easy to have to juggle some of the most widely accepted, germane principles in morality with ethical requirements imposed upon us.  However, it gets to the point where we (at least for some of us) rationalize being forced to choose ethics over morality by the good we provide in the end.

      The New York state Assembly finally passed a bill that would allow divorcing parties to avoid the timely, costly and often, emotionally taxing requirement of “fault”.  New York was the last state in the country to enact such a law, making it much easier to divorce than previously.  Although most jurists approve of the legislation, there are many opposers of the new law (well the Governor has to sign it before it actually becomes law, which most predict he will).  Most of the opposition comes from women’s rights or religious groups that think that the new law would adversely affect many more women than men.  Their position is that if women are in marriages where they are economically dependent on their husbands, that the eliminating the requirement of “fault” would only empower husbands particularly where there were no other suitable “grounds“.  Others take the position that the opposing spouse, and the children of the marriage, do not benefit, particulary when that spouse has been the faithful spouse and willing to take their vows much more to heart than the other spouse. I would like to explain how these stances have little merit and how this actually allows for more freedom to women, and men alike.

      There are many times when I represent women who want to initiate a divorce but are afraid to actually proceed on any of the other legal “grounds”, believing that their husband would “lash out” against them in response.  In reality, there are cases where it is best to dissolve the marriage, whether it be for the economic, mental or physical well-being of either party and the children, where up til now it was not possible because there was no “no-fault” provision in the Domestic Relations law in New York.  So practically speaking, the wife could be stuck in a marriage that she felt was irreparable and, in a lot of cases, debilitating just because the law hampered her ability to move on (there are times when the wife and children are at an economic advantage only once the divorce proceedings get under way).   Although there are times when commencing the action based on one of the other “grounds” ( which are cruel and inhuman treatment, adultery, imprisonment, conversion of a separation agreement, abandonment and constructive abandonment) can be used as leverage by the wife, inciting the husband to cooperate and even settle, that is a much more risky gamble.  (Fact: There is data that reports that states that have passed “no-fault” divorce laws have seen a decline in domestic violence incidents as a result.)

     Conversely, if it is the husband who initiates the divorce action, which opposers to the new law says will skyrocket as a result, then in many instances (particularly cases like I just mentioned) this will only avoid the apprehension or the compulsion from the wife’s perspective.  A husband being the first to file does not absolve him of his responsibility to pay child support, maintenance (alimony), distribute marital assets and to pay counsel fees (if ordered by the court).  In fact, often times this obliterates the economic stronghold many husbands have over their wives by the court directing even interim support.  Further, many who strongly object to “no-fault” divorce claim that it will only serve the lawyers, judges and courts who handle these matters, but again there is little validity to such beliefs.  Eliminating the need for “fault” for the dissolution does not automatically determine child custody, child support, maintenance or property distribution, these issues must still be addressed by the court.  As for the moral issues, maybe this will force individuals to think longer and harder about marriage beforehand, and not getting married with the idea that legislation would force an unwilling party to stay in an unhappy or unfulfilling union.

      For all those involved, it certainly affords the opportunity for keeping legal costs down.  Although I earn a living dissolving marriages, I would much rather see parties spend their money on their children than expending thousands merely trying to prove to the court that they have not slept together for the one year that is required under the grounds of “constructive abandonment”.  When fault is required, the opposing party can unilaterally force the other party to expend massive amounts of time, energy and money by merely “denying” the allegations in the complaint.  The new law sets out to eradicate this power by leveling the playing field. 

     It will be interesting to see if the divorce rate does soar as a result.  In many states that have passed such laws, there are reports that indicate no difference in the divorce rate, attributing an increase or decrease to other unrelated factors, i.e.religion, maturity of the parties, etc.

     Believe it or not, the courts love to see that litigants managed to work together and come up with an agreement that resolves the matter(s) before it.  This includes settlement agreements with respect to child custody, child visitation, child support, domestic violence and divorce.  In fact, the court would even provide some guidance, assistance and even patience if they are confident that a resolution. that was negotiated between the parties in good faith, is likely.  To some extent, lawyers too are sanguine with a settlement that was devised by the parties, this alleviates some of the pressures of dealing with confrontation of the adverse party, opposing counsel and the court.

     In Family Court matters, preliminary issues need to be agreed upon before the case can proceed.  With regards to “service” on the responding party, if it was defective or was never effectuated but the responding found out about the case anyhow and appeared, he/she must agree to accept service or the case will be adjourned for proper service.  As for child custody/visitation cases, the consent of both parties for a Court Attorney/Referee to hear and determine instead of a judge is mandatory.  Again, if there is no agreement the matter will be prolonged since the judges are inundated with the cases they do in fact hear, and will hear a custody/visitation case according to its caseload.  However, substantive issues may be agreed upon at any stage of the case, but is often preferred as early on in the case as possible. 

      To facilitate child custody and child visitation cases being settled, the Family Courts will send the parties to mediation, if they all agree.  Mediation is the ideal place for resolution since experienced mediators, adept in resolving even the most contentious matters (except where domestic violence is involved), will give the parties the attention they need to address the underlying issues.  The outcome of mediation is usually an agreement that is forwarded to the court for its approval and signature.  However, there are times when the parties themselves, at the behest of the court, the lawyers or any other court personnel, are able to come up with an agreement with regards to which parent should get custody (or joint custody, which the court will only approve if there is no domestic violence and both parties agree) and the terms and conditions of child visitation.  The court may provide an outline of a visitation schedule that is pretty standard in New York (which is ultimately alternate weekends, an evening during the week, split holidays/school breaks/summer vacations) to assist the parties in devising their agreement.  As long as the parties agree on all of these terms, the court will more often than not approve their settlement and “so order” it or sign off on it, making it enforceable and subject to the court’s intervention if it’s violated.

      Child support, however, requires a little more formality as the Child Support Standards Act (”CSSA”) governs, even when the parties want to settle the matter amongst themselves.  The Family Court Act (”FCA”) states that: any agreement for child support must be in writing and must explicity state that the CSSA guidelines was applied, must set forth what the amount according to the statute would be and if the amount agreed to is different than the CSSA amount then an explanation as to why.  An agreement made between the parties without the court’s approval is not enforceable by the Office of Child Support Enforcement (”OCSE”), nor will it automatically be considered if the custodial parent decides to go to court later on.  So in essence, it defeats the purpose to come up with an agreement if the court does not “so order” it, since the circumstances around paying child support can become highly volatile and can be changed unilaterally if the court was never involved. 

      In domestic violence matters, the court (particularly Family Court) will welcome a negotiated agreement resolving “family offenses”.  The terms of a restraining order that are typically worked out include the duration of the order (ranging anywhere from 3 months to 2 years), the conditions (a “no harass” vs. “stay away”) and any special provisions, i.e. if there is a “stay away” but the accused has to retrieve personal items from the home they shared.  The court, or the attorney for the child (formerly referred to as law guardian), may intervene with negotiations when there are concerns for the safety of the children of the parties.  Otherwise, again, the court will “so order” or approve settlement accordingly.

      In divorces, settlements may involve much more than the parties coming to their senses and agreeing to resolve their own issues.  Because divorces are heard in Supreme Court, which unlike Family Court is not really “pro se friendly”, addressing all of the issues may demand much more professional input.  That being said, it is not impossible, nor is the incentive for settling ignored by the courts, it may just a bit more labor intensive and costly.  In contested divorces, those that have made it to court, there are usually property distribution issues, child custody, child visitation, child support and sometimes domestic violence too.  So one judge is addressing all of these issues, as opposed to Family Court where there may be more than one arbiter hearing these issues, and that just compounds things.  Although mediation is a method relied upon as well, there cases are usually much more in depth.  Attorneys are typically useful in facilitating a negotiated settlement, either by representing either party or by merely providing “unbundled” services, there are instances where there is no such luck and the case goes to trial.  The judge must approve the settlement, with all the same considerations of the Family Court judges, and will proceed to finalizing the divorce with the settlement becoming part of the record (if it is “merged”, which is most often the case.)

     The way things are going this day and age, it is advisable to attempt to resolve any family law issue before seeking court intervention.  Not only does it save time and money, but it also relieves all those involved of the tension, discontent and antagonism that typically accompanies these sensitive topics.  Even as an attorney, I welcome anyone who comes to me with a proposed agreement, giving me the opportunity to effectively and efficiently provide my services to the parties while keeping their legal costs to a minimum.

      Having a child support order issued from a New York court but enforced in another state or enforcing an out of state child support order can be confusing at times.  When New York laws apply, how to get New York to acknowledge an out of state order or enforcing a New York order in another state are the questions that are most asked when dealing with interstate child support matters.  I want to explain how this process works so that if you are the payor and want the order modified or if you are the payee and want enforcement, at least a basic foundation is set so that you know how to proceed. The federal statute, the Uniform Interstate Family Support Act (”UIFSA”) was enacted to sort of streamline the child support initiation, collection and payment process but there is still quite a bit of confusion.

      Let’s look at a few scenarios:

Scenario #1:  (a) All the parties and the child(ren) originally resided in New York.  The custodial mother and the child(ren) leaves the state and only after leaving New York, a child support action is commenced in New York based on the fact that the non-custodial parent still lives in New York. 

                       (b)  The same facts but it is the non-custodial parent who relocates to another state before the action is commenced in New York.

In either scenario New York has jurisdiction over the parties, and to hear the case.  In the first case the custodial parent will actually go to his/her local court in the state he/she lives in, files a petition for support, the court sends the documents to New York, the Respondent is served in New York (usually by mail) and the matter is scheduled for hearing in New York’s Family Court.  Child support will be calculated based on New York’s guidelines and will be executed in New York if the non-custodial works in the state.  New York’s Office of Child Support Enforcement (”OSCE”) will forward payment to the custodial parent in the state he/she resides in. Under UIFSA, New York’s laws, procedural and substantive, will apply even though the child lives in another state.  While in the second scenario, the case is actually commenced in New York courts and the non-resident non-custodial parent (who will be have to served in that state) will have to appear in New York (usually done telephonically.)

Scenario #2:  All of the parties lived in another state and the custodial parent and the child(ren) relocate to New York.  Once in New York, a child support case is commenced while the non-custodial still resides in that other state.

This is a “two-state UIFSA” case that requires a few steps since New York does not have jurisdiction over the non-custodial (based on the fact that he has no ties to New York since he never lived in New York). Similar to Scenario 1(a) but reversed, the petition would be filed in New York but the matter would be heard in the father’s resident state.  In this case, under UIFSA, the laws of that state would apply since it is the state that actually “hears” the case.  Out of court child support orders must be registered in New York for enforcement by OSCE.

Scenario #3:  (a) The parties and the child(ren) all lived in another state but the custodial parent and child(ren) decide to move to New York after a child support order was issued in their original state.  The non-custodial parent continues to live in that other state and the custodial parent wants to have the child support order, issued from the previous state of residence, enforced not modified in New York. 

                       (b)  The same facts but the custodial parent wishes to have the original state’s child support order modified. 

In this case, the out of state order must be registered in New York before the court can hear the enforcement petition.  Under UIFSA,  New York courts have jurisdiction to enforce the case initiated in another state whether any of the parties live in New York or not.  UIFSA grants broad powers to state tribunals in that enforcement can be sought in any of the states as long as the non-custodial parent has property, assets or receives income in New York.  However, the original state retains exclusive jurisdiction since the non-custodial parent still lives there which means that any modification petitions to that state’s order must be done there (unless the non-custodial parent consents to New York exercising jurisdiction). NOTE:  The custodial parent can proceed directly to the OCSE to have a child support order enforced, bypassing the courts altogether. 

Scenario #4:  All the parties lived in New York, the custodial parent and child(ren) relocate to another state after a child support order was issued in New York.  The non-custodial lives in a completely different state.  The custodial parent wants to enforce or modify the original New York child support order.

Although New York issued the “controlling order” it does not have personal jurisdiction because none of the parties live in New York, regardless of whether the non-custodial lived in New York at some time New York will not hear the case.  The custodial parent must register (as in Scenario #1) the order in her current state, or in the father’s resident state, to have the New York order modified.

      In cases where the initial state can assert “long-arm jurisdiction” over the non-resident non-custodial parent in initiated cases (distinguished from modification and enforcement cases), which is permissive by the U.S. Constitution and federal laws, then it will do so.  This means that the non-custodial would be subjected to the laws and court proceedings of that state despite the fact that he lives in another state if there is some “connection” to that state as in Scenario 1(b).  Even in cases where the non-custodial never lived in the “forum” state, if the custodial parent can establish “connections”, i.e. the parties conceived the subject child(ren) in that state, to that state then the court can exercise jurisdiction. 

      It is impossible to cover every single scenario in this entry but I wanted to establish a foundation for those of you that have multiple states between you.  Procedurally, dealing with interstate child support cases can be very convuluted and complicated because you would be interacting with bureacratic agencies in many states.  So although the laws may appear straightforward, when the procedural rules are factored in the outcome with regards to jurisdiction can change.  I suggest that you inquire with the agencies for all states involved, being very diligent in your efforts, so that proloinged periods of receiving no support payments are kept to a minimum.

Feel free to contact my office for help with your child support or family law case.

      Many of you might have already heard, in the news, by your attorney or by someone affected by the case itself, that a Nassau County Supreme Court judge recently ordered a custodial mother to six weekends of incarceration for repeatedly alienating her child from the non-custodial father.  This decision has gotten the attention of practitioners across the state (and beyond) and the media, even being featured on Fox’s “Good Day New York” this past week, which included an interview with divorce attorney Raoul Felder. 

      The Honorable Justice Robert A. Ross ruled that the custodial mother, willfully violated the court order for child visitation by deliberately alienating the elementary school aged children from her ex-husband, the children’s non-custodial father.   Justice Ross stated:

 ”the evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of ‘good faith’ and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father.”  

The judge made his decision after hearing 23 days of testimony on a motion for contempt filed by the father.  The basis was that the mother violated the agreement that the parties made, in a Stipulation of Settlement as part of their divorce action, which included more than a dozen instances of interference or alienation.   Additionally, the mother made allegations of sexual abuse against the father, which the judge debased her for and found as being “baseless” and “not made in ‘good faith’…”. 

      Although this decision is monumental in the legal community, many legal scholars are concerned about how the Appellate Division will rule on appeal.   This judge did exactly what he had the power and authority to do under Section 753(A)(3) of the Judiciary Law when there is a motion for contempt before him.  Although an order for change of child custody is within the court’s powers where there is alienation and false allegations of abuse, this court ruled under the contempt portion of the father’s application thereby issuing penalties pursuant to the laws concerning contempt.  “Civil” contempt is when a party fails to obey a court order, where there is a court order explicitly set forth a mandate and the contempting party had knowledge of the order.  Penalties include a fine or confinement to jail, or both depending on the circumstances.   In family law cases, the judges rarely impose such harsh penalties as imprisonment because contempt is not really to “punish” the violating party per se but is merely an incentive to gain compliance to the court order.  In family law cases, which are typcially very volatile and vitriolic, the court will attempt to temper flames by issuing warnings or explicit directives.   But in this case Justice Ross, who is esteemed for being astute at discerning the facts as they exist, felt that the mother’s actions were so egregious and consistent that jail was the only suitable recourse (although he is considering a change of child custody too.)

      In alienation cases, particularly, it is very difficult to get the court (especially Family Court where the matter is heard before a hired Court Attorney/Referee instead of an elected or appointed judge as in Supreme Court) to adequately address the alienating parent’s behaviour, and deterring any future alienation.  Not because they do not have the power (as is evident here) but because they are afraid to rule against the custodial parent when allegations of abuse are made.  New York happens to be one of the states that has extensive resources to investigate, assess and intervene with alienation cases, as opposed to many other states where the judge is to basically rely on his or her own knowledge to discern the truth.  The New York courts use law guardians (now referred to as attorney for the child), forensics evaluators and child protective services to assist it in exploring the veracity of abuse and alienation.   So in cases where the judge is faced with “he said, she said”, there are vehicles in place that can help it to find the truth, minimizing erroneous or unjust findings.  Nevertheless, the courts are still reluctant to act, particulary where a change of custody is requested.  They are more inclined to order the parties to undergo extensive therapeutic and psychological intervention instead.   While basing their decision on “the best interests” standard, the court usually finds that evidence of alienation does not warrant a finding that the alienating parent is “unfit” which would justify a change in custody to the alienated parent.

      I recently attended the Association of Family and Conciliation Court’s annual conference in Denver, Colorado which focused on parental alienation.  The conference included all the players in assessing, treating and adjudging alienation, which included psychologists, social workers, therapists, parent coordinators, parent educators, judges, lawyers and everything in between.  And although it was refreshing to see that attention to this issue is gaining momentum, there is still a lot to be done.  Judges, court personnel, etc. need to be made aware of the reality of parental alienation.  Educating the key players is the only way the courts will take Justice Ross’s stoic position and affect change.

      There has been a prolonged sense of confusion amongst laypeople, and some attorneys alike, about how government benefits affect child support.  The questions range from how receiving child support is affected by a child who receives Social Security benefits, how a payor’s child support obligation is impacted by the fact that he/she receives government assistance or whether a custodial parent who receives government assistance can receive child support.  I hope to clear up at least some of the confusion regarding these issues for all those concerned.

      Let’s look at government benefits from the child’s perspective.  As most of us know, a child (under the age of 18 or 22 in some circumstances) may receive Social Security benefits if he/she has a parent (that parent can be a biological parent, an adoptive parent or stepparent) who is disabled or retired and is entitled to benefits or who has died (and has worked long enough to pay taxes to receive benefits.)  Also, a child may receive Social Security (”SSI“) if he or she is deemed disabled and is expected to remain so for at least 12 months.  These benefits have nothing to do with whether there is a disabled, retired or deceased parent.  The child receiving any of these benefits will not affect the non-custodial parent’s obligation to pay child support.  There is no offset, deduction or suspension of child support on the basis that the child is receiving “income” as a result of the benefits, the non-custodial will still be responsible for the statutory amount.  However, the circumstances are different if the child is on public assistance, which will be discussed when we address the custodial parents as recipient of government benefits.

      The non-custodial parent receiving government benefits may determine how much he/she will pay for child support (under no circumstances is a non-custodial absolved of his/her responsibility to pay child support.)  The Child Support Standards Act (”CSSA”) indicates that if the non-custodial parent’s income falls at or below  the federal poverty guideline of $10,830 or at or below the self support reserve amount of $14,620, then he/she is only required to pay the monthly amount of $25 or $50 respectively.  So if that parent receives beneiftis, such as Social Security, public assistance or any other government benefits, then their support obligation is reduced to the indicated amounts. 

      Things are a little different if the custodial parent is the one receiving the benefits.  A custodial parent receiving Social Security have very little to worry about with regards to receiving child support.  Her benefits have no relevance to the amount of support she receives from the non-custodial, unless she (really her children) is on public assistance.  If the custodial parent (the children) is on public assistance, HRA requires that that parent assist them in locating the non-custodial parent (unless he/she proves that they were a victim of domestic violence) so that they can recoup monies for the cash assistance (Medicaid and/or food stamps do not count, except for Medicaid expenses for the birth of the child) being provided.  Once the non-custodial is located, if he or she is working (and is not below the poverty level) then they will be required to pay their statutory amount of support.  If the statutory amount is less than the amount of assistance the custodial parent is receiving, then the custodial will receive the first $50 (unless the non-custodial only pays $25 then the custodial gets the entire $25) of the child support amount received by the agency from the non-custodial while the rest is paid back to the city.  If the statutory amount is more than the cash assistance being received, then the agency can (and probably will) terminate benefits to the custodial parent, allowing him or her to receive the full amount of child support instead.  Alternatively, at any time the custodial parent can remove the child(ren) from its “case” with HRA and opt for receiving child support instead. 

     Unemployment or employer sponsored disability (although not actually considered government benefits) are subject to being considered “income” for child support purposes and thus are not treated any differently from salary, wages, etc. 

     I hope I was able to clarify some of the confusion, myths or misconceptions about how government benefits applies to child support cases in New York.  There may be some exceptions to any of these scenarios and should be addressed by inquiring of the court.

     In light of the upcoming Memorial Day holiday, I decided to discuss how being a member of the U.S. military has impacts on divorce, child support and child custody or visitation cases in New York.  For the most part military personnel, active, retired or otherwise, have the same obligations to support their spouses and/or children as civilians do.  However, there are certain provisions that distinguish them because of their primary obligation to serve, which sometimes limit their availability or resources.

Let’s start by taking a look at divorce, particularly contested divorces since that is where the major issues arise regarding a spouse who is or was a military person.  In New York, this applies to both contested and uncontested, the “notice” requirement is the same.  Whether the spouse filing is the active member or the civilian, the other spouse must be personally served with the Summons (the notice) for divorce.  This requires that that person be the one who actually receives the notice that there is a divorce action pending,in person.  However, although federal laws protects active members from being found in “default” or from “losing” their right to defend against the action.  Nevertheless, the court has the discretion to postpone the divorce proceeding  until the active duty spouse is no longer deployed and sixty (60) days beyond (particularly when they are deployed during a war) if he or she requests it.  (Referred to as the Servicemember’s Civil Relief Act.) That spouse may waive such postponement if they wish to proceed and resolve the divorce, making arrangements with the court for his or her appearances (usually by counsel).  However, with regards to spousal support or property distribution, the federal law prevails and sets forth how the property of the active member spouse is to be distributed.   The Uniformed Services Former Spouses’ Protection Act (”USFSPA”), governs how military property is to be calculated and divided for active members and retired members alike.  For instance, the USFSPA will not make “direct” payment of the member’s retirement benefits, unless he or she has been married for ten years or more while on active duty, to the other spouse.  However, the court may do an “offset” to other property, i.e.the marital home sale proceeds, regardless of the length of the marriage.  As for military disability benefits, the court cannot use those benefits to determine distribution but those monies may be used to determine child support or spousal support.

As for child support, the statutory calculations apply to military personnel the same way it applies to civilians.  However, child support and spousal support deductions may not exceed 60% of a military person’s pay and allowance.  This means that the cases where there are multiple child support orders against a non-custodial, a spousal support and child support order issued or circumstances that could result in the non-custodial’s earnings being reduced to the poverty level (or the 65% maximum permitted by the Consumer Credit Protection Act), if he or she is an active member, the law would prohibit this from occurring. “Add-ons” are also applicable, pursuant to the NY child support statute, with regards to military members.

Child custody or child visitation also have some specific consideration with regards to military members, custodial parents who are members are particularly affected.  Custodial parents who serve in the military are prohibited from “losing” custody based solely on the fact that they are deployed.  In fact, in most cases if the custodial parent is deployed, guardianship may be granted to another family member to establish a legal safeguard against a change of custody case.  However, another more difficult set of circumstances are involved with regards to relocation cases, when the custodial parent relocates as a result of his or her military obligations.  In these cases, the court will use the legal standard “the best interests of the child” to determine, among other things, if the move will unfairly impact the bond or parent-child relationship with the non-custodial parent.  Furthermore, when considering the fact that move is primarily for military reasons, the court can permit the move with allowances and/or conditions being put in place for the non-custodial parent to maintain contact.

Although being involved in a family law matter while in the military has its own set of considerations, the federal government enacted legislation that serves to protect this particular group from the harshness and unfairness that can be imposed when circumstances make it difficult to proceed or defend in a legal action.  New York state, too, has procedural safeguards that serve to safeguard the rights of our soldiers.

By the way, not only is adultery is a grounds for divorce in New York it is also considered a “military offense” punishable by the U.S. government.

     For some strange reason I have been an influx of cases where the mother discovers that the father of her child is not the father she thought and wants to change his name to either hers, or that of the biological father.   Well, it may not be that easy.   Typically a child who has the father’s last name has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married.  If this were the case then taking on either the mother’s name or the actual father’s name may require several steps in court, because the “noticed” father can object to any change.

First off, a child’s first name may be corrected or added to the birth certificate in Family Court, usually with very little confusion.  However, changing a child’s last name is entirely different and must be done in either Family Court, Supreme Court or Civil Court depending on the circumstances.  For our purposes, where paternity needs to be established (or re-established),Family Court is the proper venue.  The mother can do it one of two ways:

1) She can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the

father is not the actual father, or;

2) She or the biological father, can file a Paternity petition.

In Scenario #1, the Court granting the mother’s request for vacating the Acknowledgement of Paternity does not automatically establish the real father as the father for any purpose.  At this point, legally, there is no father that the Courts will acknowledge until there is someone that can be identified and brought to court.  Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the “legal” father, from the Court.  This is the legal document that is required by the Department of Health and Mental Hygiene (”DHMH”) to issue a new birth certificate with the new name on it, that of the father’s.

In Scenario #2, if the either parent files a petition for Paternity, then the the father can either consent to paternity or, if he does not, the court can order DNA to confirm that he is actually the father.  Again, once this occurs then the Court will issue an Order of filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Of course, Scenario #2 is preferred since it speeds up the process.  However, it is a rare case where the biological would be so willing to cooperate in such proceedings, since doing so would also result in an order for child support against him.  Vacating an Acknowledgement of Paternity where there is currently a child support order against the first father is a long shot unless the Court can identify the actual father so that the child is not left with no one to support him or her.

Another alternative, although the process can be delayed by the father’s objection, is that the mother legally change her name, in Supreme or Civil Court, which permits her to change her child’s name to the same last name.

Why would a man want to establish paternity, as opposed to just allowing the birth certificate to remain unchanged.  There are several reasons, although a father whose name is on the child’s birth certificate is considered the “notice” father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited until paternity is in fact established.  A father who has established paternity and is the “legal” father, on the other hand, has no limits with regards to his rights in any case in any court.

In any circumstance, it is best to ascertain the real and actual father as soon as possible, after the child’s birth, so as to limit any other legal issues that may arise, i.e. equitable estoppel.   The reality is the laws are designed to keep the “legal” father in that capacity for public policy reasons.

Feel free to contact my office for a free phone consultation.

     I am often asked by parents, and teenagers alike, at what age may the teen be considered an adult or emancipated.  First of all, in New York there is no official emancipation procedure in court, nor is there any orders, identification, etc. that states emancipation.  However, there are instances where a teenager is no longer conisidered a minor and thus obviates the need for their parents support, approval or consent.   I want to take a look at some of those situations so that we all have a clear understanding of the laws pertaining to this issue.

     If a teenager is living separate and apart from their parents (or still living in their home but the other following criteria are met); does not rely on their parents for any financial support, i.e. food, shelter, clothing, health or car insurance and is able to handle or manage their own financial responsibilties, i.e. paying their own bills, budgeting, etc. then they may considered emancipated.   This, is in essence, means several things for the purposes of the minor and their parents.

     As far as child visitation or custody, once the teenager reaches the age of seventeen then the court may no longer consider them a minor for these purposes.  However, in some circumstances the judge will issue an order for visitation for a seventeen year old where the teen’s wishes will be given considerable weight.  If the teen is adamant about visits with the non-custodial parent, either way, then the judge is more than likely to address those concerns. 

     In child support matters, a teen who is emancipated by either being financially independent (as mentioned above), being married or enlisted in the armed services, then the non-custodial parent is no longer required to pay child support.  However, in these cases it is typically much more difficult to prove emancipation because the custodial parent usually asserts that he or she still provides some sort of support to the teen despite the fact that he or she lives with a friend, paramour or alone.  Thus, the circumstances where the teen is enlisted or married it is much easier to prove emancipation.  Contrary to what many think, a teen having a child of her own does not automatically absolve the non-custodial parent of his or her obligation to pay child support.  If the custodial parent can prove that he or she still  provides any sort of support to the teen and the baby, then the obligation to support may continue.  Conversely, a teen mother does not automatically become an adult, except for specific circumstances such as medical attention for self and the child, whether and where to attend school and receiving public assistance (if the criteria are met.)

     As far as marriage is concerned, an emancipated teen still needs their parents permission.  Additionally, that teen may not be able to rent an apartment without an adult being a co-tenant (or helping in some other way); cannot work without a work permit (which requires parents permission); may not vote or bring a lawsuit to sue someone.  On the other hand, the emancipated teen may get public assistance, attend school, get medical attention without their parents consent and can live alone.  Also, although an emancipated teen’s custodial parent may no longer be entitled to receive child support, an eighteen year old may actually sue the non-custodial parent for child support his or herself.

     As the parents of teens, you must be aware of your responsibilities up until emancipation.  Until the age of seventeen, eighteen or twenty-one, you may be held responsible for your child either legally, financially or both.  If your child is arrested before the age of seventeen and is charged in Family Court, you are required to appear for that child or be subject to abuse/neglect proceedings.  Although having their case brought in Supreme Court does not relinquish that obligation, the teen is routinely charged as an adult and thus may not result in any legal proceeding being brought against the parents.  If you kick your teen out of the home before they reach seventeen, this may also result in an abuse/neglect proceeding against you as the parent.  It is the parents responsibility to bring a person in need of supervision (or PINS) in Family Court if the teen is being unruly or disobedient at home or a truant at school.  The same goes for a teen who needs the parents’ consent or attention for some medical or psychiatric issue, failing to consent or get help may also result in an abuse/neglect case against the parents.  As for child support, the non-custodial parent is required to provide financial support up until the age of twenty-one, unless emancipation occurs first.  So a nineteen year old who works part-time or attends college or who does nothing at all, is still entitled to the financial support of a non-custodial parent (typically if there is a Family Court order for support). 

     A teen in foster care is subjected to another set of rules and thus requires attention at length in another entry.  It is wise to understand the ramifications of allowing a child to move out, to leave school or otherwise.