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.

          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.

         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 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.

          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.

          Although I don’t have children of my own, I do recall my teenage years when I was defiant, rebellious and downright pugnacious.  I gave my mother a hard time mainly because I had a confluence of issues to deal with, mainly trying to discover who I was.  So with my friends in one ear telling me what was “cool” and my mother in the other admonishing me about getting into trouble, I (like most teenagers) was considered a handful.  Today, however, teenagers have a different set of circumstances to deal with, with the influence of pop culture, the enticement of technology and a relaxing of social mores, working through this particular stage is much more difficult and trying.
           New York families, like many throughout the country, are under a lot of pressure in these very trying economic times.  Home foreclosures are still occurring at a soaring rate, unemployment here in New York is above the national average and the cost of food and gas are forcing some to make adjustments to their mundane activities.  So dealing with a repugnant teenager can certainly drive parents to engage in some regrettable behavior.  In New York the courts have a mechanism to help parents (or persons legally responsible) to address some of the teenagers most volatile issues.  A PINS (“person in need of supervision”) is filed in Family Court when help is sought for a truant, misbehaving or uncontrollable child under the age of eighteen years.  A PINS basically asks the courts to intervene by either offering services, placing the child on probation to monitor the child’s behavior, placing the child in foster care or placing the child in a non-secure facility (which is not a lock up or jail) for a period of up to 18 months.  Many parents are either unaware of the benefits of the breadth of authority that can be exercised by the court in PINS case or are discouraged by the quality or effectiveness of the help that the courts would actually provide, and therefore underutilize this option when they are living with a misbehaving teenager.  However, in some instances filing a PINS petition is necessary to avoid juvenile delinquents or child abuse or neglect cases being brought against the parent. 

          The process for PINS starts with the parent, guardian or person legally responsible going to Family Court and to file a petition.  ACS ( as well as peace officers and citizens injured by a child) may also file PINS against children. New York law mandates that PINS cases be diverted by other services being provided to assist families in crisis.  So before the petition is actually filed the court will direct the parent to the Family Assessment Program (FAP), unless the child is run away and the parent requests a warrant for the child to return home.  In PINS cases where the child ran away, the court will issue a warrant and peace officers will look for the child and return him or her directly to the home or to court if the parent is unavailable, before FAP is involved.  FAP is a collaborative effort by ACS and the Department of Probation to effectively help families with their teenagers.  The family, which consist of the parent(s) and the child, will meet with a Family Assessment Specialist, who is an experienced ACS social worker specially trained to work with teenagers and their issues.  The social worker is trained to help families identify their problems, explore their options and devise action plans to deal with the problems.  This also includes identifying their needs for particular services and will provide referrals to agencies that are best able to address their needs.  These services range from the Designated Assessment Services (DAS) (which is the service used to defer PINS placements); crisis intervention; mediation; preventive services; family counseling; substance abuse programs; to anger management; as well as other services that a family may request.  If these services are unsuccessful in resolving the problems, then FAP will refer the case to be filed in court.
         Once the FAP phase has ceased, either by all resources being exhausted or the services being unsuccessful (due to no fault of the parties only), the court will address the petition.  Once at this stage, the FAP worker must inform the court of the efforts made and the outcome of these efforts,  the court can either order further assistance or proceed to the hearing phase.  If no further services are ordered, the parties will have to appear in court for a fact-finding hearing (or a probable cause hearing if there is an issue of “placing” the child while the PINS is pending) where the petitionerparent will have the opportunity to present evidence and put on witnesses that will support the facts in the petition.  The facts setting forth the teenagers behavior and actions are presented to the court to convince the court that court supervision is needed.  If the court agrees, and finds that the child needs supervision, the judge can then direct that either the child remains in his/her home with the Department of Probation monitoring home environment, school performance and behavior; that the child be placed in foster care (which can include the home of a relative), or that the child be placed in a non-secure detention facility for up to 18 months (an “adjournment in contemplation of dismissal” or suspended judgment are also alternatives).

          Nevertheless, there are instances when going to court to file a PINS is imperative.  For instance, if the teenager has the tendency to leave home for days at a time without permission or informing his or her parents of their whereabouts, continuously refuses to go to school, engages in activities that are harmful to others or their property or merely refuses to follow rules within the home, parents should not hesitate to seek the court’s assistance.  As a parent, the legal responsible to provide food, shelter, education and medical attention is non-transferable.  In other words, if a child under the age of 18 years chooses to leave the home without provocation (undoubtedly with provocation) the parent or person legally responsible for that child may be charged child neglect for failing to provide shelter.  Similarly, a teenager who is consistently truant may serve as the basis of a child neglect petition being brought against his or her parent for educational neglect.  Thus, in either instance filing a PINS petition first, before ACS or DSS actually files a child abuse or neglect petition, would only support the parent’s defense of not being responsible for their child’s actions or behavior.  However, even after filing a PINS petition, the court can determine that the parent or other person legally responsible is part of the teenager’s problem and can file a child abuse or neglect case against that parent. A parent can not acquiesce when they are faced with a troublesome teen.  In fact, his or her responsibility to act is crucial to all parties involved.    The alternative being court intervention being imposed involuntarily, by  either a child abuse or neglect case or a juvenile delinquency case.

         It would be remiss for me to not mention that some families have had little or no success in dealing with their troubled teenager through a PINS.  However, it certainly has provided some much needed guidance to families that were on the brink of destruction and therefore is worthy of exploring.  I always suggest that parents try to explore every referral provided and to exercise every option available in an effort to cope with these most trying years.    Because when you look at the alternative, not taking any action, the end results may be much more traumatic. 

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

          My entries have repeatedly stated that parents’ rights to their children is as fundamental as any other right in the U.S. Constitution.  Visitation, specifically, is not only a right of each parent but a shared right with the child.  However, there are circumstances where, given the standard “in the best interests of the child”, neither parent is “fit” and custody to a nonparent is justified.  I would like to address the circumstances where a nonparent has “standing” and has a viable position in seeking child custody.

          In New York, as in most other states, parents’ rights are superior to any other person with regards to custody and visitation of their child.  Unless the parents abandoned the child, are both unfit, surrendered the child, have been persistently neglectful of the child or where  other “extraordinary circumstances” exist, a non-parent has no legititmate basis to sue for custody. As for visitation, non-parents may petition the court for visitation if they are a grandparent or sibling of the child only.  Even in these situations, that right is not automatic.  If the non-parent is the grandparent, then he or she must also have “standing”, which means that  either or both parents of the child must be deceased and a showing that conditions exist where equity would see fit to intervene.  The latter is typically interpreted by the courts to mean that there must have been some constant and continuous contact between the grandparent and the child to warrant such an intervention by the court.  In circumstances where it is a sibling petitioning for visitation, only a showing of conditions that exist where equity would see fit to intervene is necessary.  Once “standing” is established in either case, a hearing will be held to determine if such visitation is in the “best interests of the child”.

          A non-parent child custody petition is a lot more in depth because of the finality of such a proceeding, unless the child is in custody of DSS (or ACS in New York City) for child abuse or neglect, grandparents may seek custody from the agency on a less stringent basis.  In New York, the analysis for non-parent child custody case is determined by Bennett v. Jeffreys.  This case is seminal in setting forth the two-part test that is used in Family Court and Supreme Court for these sort of cases.  It explicitly states that unlike a custody case between natural parents, the “best interests of the child” standard is not even addressed unless the petitioner is able to get beyond the first part, which is proving that “extraordinary circumstances” exist.  In this case a fifteen year old mother allowed a family friend to raise her child for approximately eight years.  Despite the fact that the Family Court decided to award custody to the non-parent, based on the time the child spent with the family friend and the psychologist’s testimony that a return to the mother would be traumatic, the Appellate Division reversed.  The Appellate court basically reasoned that a natural parent’s right to custody of their child is tantamount to any other person.  The highest court, the New York Court of Appeals, agreed that “extraordinary circumstances” existed,  given the length of time of the separation of the child from her natural mother as well as other factors that were established. However, it stated that the presence of these factors only met the first part of the test, it did not on its face prove that it would be in the child’s best interest to award custody to the non-parent. The highest court’s concern was that the lower courts failed to make a determination of what is in the best interest of the child, which included looking into the background of the non-parent and her “fitness” as a parent despite the “extraordinary circumstances”.

         The tough question often arises when trying to ascertain if there exists “extraordinary circumstances”.  This concept is strictly construed by the courts and will require a clear and unequivocal showing of unfitness, a clear intention to surrender parental rights, a lack of interest in the child and relinquishment of custody to the non-parent and a persistent pattern of neglect. In petitions alleging abandonment, for instance, the petitioner must show that there has been no contact or financial support from the natural parent for a period of at least six months before the filing of the petition.  And although this may seem obvious, there are courts that do not consider a sporadic birthday card or phone call from parent to child as abandonment if done within the prior six months.  As for the persistent neglect finding, the petitioner must prove to the court that the natural parent has continuously failed to provide for the child, which includes basic necessities like food, shelter and clothing; failed to plan for the child’s future; or continuously subjects the child to misconduct; or physical, mental or emotional impairment (as defined by Social Services Law Section 384-b(4).  Again, an occasional lapse in judgment does not warrant depriving a parent of their right to custody of their child in favor of a non-parent.

         As a law guardian, an advocate and mere humanitarian, nothing is more important to me than a child having a family that harbors concern for that child’s well being and shows that concern by seeking the court’s assistance in such cases.  It is a major task to take on one’s family by going so far as seeking judicial intervention when they believe a loved one is being improperly cared for by their natural parent.  However, the flip side of that is that although we may not agree with our loved ones’ parenting skills or ability, choosing this route which infringes on the parent’s right, may be considered extreme.  Because of the potential chasm that will be created within the family, it is advisable to be absolutely sure that such a petition as a substantial chance of prevailing. 

          Feel free to contact my office to discuss your custody or visitation cases.

          So you are starting life anew, with a new spouse or paramour, more children or change in custodial arrangements.  With either of these changes, you may have taken on the responsibility of a new family and more expenses and with your partner’s salary may have additional income coming into the home (or at least the opportunity to pool resources).  But your prior responsibilities still exist, particularly your children, which include expenses and other obligations associated with them.  Whether the old and new obligations overlap or remain separate is determined by legal principles and statutes in New York. Child support, child custody or visitation, paternity and child abuse are all subject to principles of law that affect both pre-existing and new found responsibilities that accompany a change in the family unit.

         Let’s first take a look at child support, the financial obligation for the pre-existing child or children takes precedence over any new or afterborn children as far as the courts are concerned.  Additionally, the child support obligation imposed upon the noncustodial parent may or may not be impacted by his/her new spouse’s income.  Where there is a child support obligation for a child or children that existed beforehand, the court must take into account the amount of the court ordered obligation or obligation by agreement (which meets the legal requirements of the statute).  If there is no such court order or agreement for child support, in cases where the parties have a verbal arrangement instead, then the court is under no obligation to consider the noncustodial parent’s children that were born beforehand.  However, if the noncustodial parent has other children and he is the custodial parent for those children, then the court will consider the financial obligations imposed on that parent for those children when calculating “adjusted gross” income.  If there is access to other sources of income, by means of a new spouse or live in paramour or he receives child support from those children’s other parent, then that income will be used to determine if the current child support obligation should be reduced (which requires the court deviating from the statutory guidelines).  Pursuant to the Family Court Act, if the amount of income available to the noncustodial parent’s afterborn children , who live with the noncustodial parent and his/her spouse, is less than the amount that would be available for the first born children, then the court will reduce the amount of child support obligation because the household income of the noncustodial parent should not be less than the income available to the first born children .  The Financial Disclosure Affidavit requires that the noncustodial parent provides income and expense information for both him/herself and their spouse or paramour.  This information is to help the court determine if it should deviate from the Child Support Standards Act, at the request of either party, which will be based on the availability of income and/or assets of the noncustodial parent (which includes that other person’s income). 

EXAMPLE: The noncustodial father is currently being sued for child support for a 12 year old son from a previous relationship.  He and his current wife’s income (and tax returns) will be requested automatically, even though only his income will be used to calculate child support. However, he requests that he not be required to pay the obligatory 17% (the percentage required for one child), on income of $40,000, because he currently has an IRS tax obligation of $16,000 where he is repaying $600 per month.  But he has access to additional income, his wife earns $56,000.  Consequently, her income is covering the family’s expenses because his is limited by the tax repayment.  Therefore, the court may actually decide to take this into account and adjust the father’s child support obligation downward based on this, in addition to several other factors. 

          Next, take child custody or visitation, the existence of a new family (or family member) may affect the factors used to determine the “best interests of the child”.  More specifically, the stability of the home (new), the flexibility in schedule and availability of the custodial parent’s spouse to take care of the children and the positive influences of the new and/or additional family members can all support a favorable child custody determination. In cases where neither parent is a drug or alcohol abuser, is incarcerated, is a child abuser or domestic violence perpetrator, there will be a test of “fit” vs. “fit”.  This means that the court will determine which parent is more “fit”, since each will be presumed to be “fit” given the fact that neither parent exhibits any of these patent indicators of “unfitness” in a custody case.  In this circumstance, indicators of a more stable and loving home environment certainly prevails, particularly where an intact family has been established.  For this reason, a new spouse will be interviewed and scrutinized, particularly where the relationship between the spouse and the child has not quite developed yet.  The homestudy, conducted by ACS or the Probation Department will include a background check (which will include an SCR check for abuse or neglect findings) of the new spouse as well as an interview with that individual.  Additionally, the forensics evaluation will either conduct in person interviews or make some contact with the new spouse in an effort to determine the spouse’s ability to provide a nurturing environment for the child (both assessments will be done of the spouse or paramour in custody and visitation cases).  And although the courts cannot dictate who the parties actually choose to live with, the courts can certainly determine which parent shall have custody based on each of their choice in partners. Stepchildren being present in the home will  also be considered as a factor if those children have emotional, psychological or physical issues that may affect the other children.  Conversely, a noncustodial parent may have legitimate concerns with his child’s new stepparent and/or step-siblings.  If these concerns raised are legitimate and adversely affect his/her child’s emotional or psychological well-being, this can certainly tip the scales in favor of the noncustodial parent where he or she is seeking custody (and will assuredly be considered in visitation cases as well).  In guardianship cases too, the new spouse or paramour (or any adult living in the home) will be investigated (and fingerprinted) to ascertain if they are able to provide a safe environment for the upbringing of a child.

         Paternity is also an area where the existence of previous relationships affects the outcome of the court case.  However, in this particular circumstance, it is the relationship itself that matters, not the existence of additional children or a new spouse/paramour.  Specifically, if the parties were married at the time a child was conceived, New York law requires that the court  presumes legitimacy of that child.  Based on principles in public policy, a man and woman legitimately married are assumed to be the natural parents of children born of that marriage.  Therefore, in a situation where the father wants to challenge paternity once the relationship dissolves, he may be precluded from proceeding with the case based on this presumption of legitimacy.  Therefore, any real concerns that the wife conceived a child with another man while married must be resolved outside of court (except in rare circumstances where the natural father cooperates and participates in the proceeding).

         And lastly, in child abuse or neglect cases, the presence of existing or new families certainly weigh into the outcome depending on the phase of the court proceeding.  A parent or “person legally responsible” may be held responsible for physical, emotional or psychological injury or the risk of such injury to a child and/or his/her siblings.  So if a parent, foster parent, stepparent or adoptive parent is the target of a child abuse or neglect proceeding, any child brought into the subject home while a case is pending or after there has been a “finding”, that new or additional child may become  part of the court or child protective proceeding as well.  These sorts of cases are considered “derivative” because the afterborn child or child who moved into the home after a child abuse or neglect case has commenced, may be put in “immediate danger” as a result of the abuse or neglect the first child was subjected to. Regardless of the rehabilitative services provided, the removal of the dangerous situation or abuser or the circumstances that may make it illogical for the new child to suffer the same abuse, that child may still be the subject of a new child protective case after the fact. At the same token, a new spouse or paramour may be subjected to the same investigation as is the case in a child custody matter, since that person’s ability to provide a safe environment for children is a very important factor.  

          This day and age, it is inevitable that children and families will be subjected to several changes in its family structure.  With the divorce rate steadily climbing, the number of out of wedlock children soaring since the 1960’s and the influx of immigrants, the family unit can go through several transformations or restructuring before the children reach the age of majority.  In that, it is essential to stay abreast of the implications and responsibilities placed upon the old family, as well as the new, so that informed decisions can be made surrounding all of these important issues.    

Please feel free to contact my office to discuss your family law issues.

          In child custody and visitation cases there are several factors the courts will use to determine what is in “the best interests of the child”.  The parties are the primary source of information with regards to the weight the judge will give to each of these factors.  However, due to the highly charged nature, and thus, skewed view of the facts, the courts do not rely solely on the parties’ account of details the courts employ other entities and professionals to help them in this most delicate decision.  So, for instance, to gain insight into the home environment of each of the parties, the courts will employ the Dept. of Probation, or its equivalent, to conduct a homestudy.  A homestudy consists of an agency worker going out to each party’s home to check for safety, habitability and adequacy of the home.  The worker will check ther sleeping space, whether safe conditions exist, if there is adequate food, etc.  The worker will also interview each occupant that lives in the home, in addition to the parent  in an effort to get a insightful picture of how the child lives or would live if he or she were ordered to live or visit with either parent.

         Another major tool used  in the child custody litigation is the forensics evaluation.  Forensics is the utilization of a psychologist, psychiatrist or social worker to make an assessment and give testimony with respect to custody and visitation.  The court will first determine if forensics is needed, which will be based on the particular circumstances of the case.  This is crucial because without an expert’s opinion, the court can make a determination about custody and visitation on information provided mainly by the parties, and other sources that do not supplant the parties’ accounts accurately.  Although the authority to order forensics examination is granted by Section 251 of the Family Court Act, caselaw indicates that that decision is within the sound discretion of the court.  For example, where the court believes that there is no issue with respect to the emotional health or mental state of either parent or the child, it may rely on other evidence provided by the parties and their witnesses to make its ruling.  So although either party may request that forensics be conducted, if the court is not convinced that this evidence is necessary in helping it to reach a custody or visitation determination,  they may deny such a request. On the other hand, it has been held to be “reversible error” by the appellate courts,  where the court refuses to order forensics where custody was changed/modified without a hearing, where there were patent issues of abuse, neglect, domestic violence or other  psychological and emotional concerns, where there was parental alienation or where the child resists visitation (without justification).  In any of these circumstances either party, by his or her attorney, and the attorney for the child (the law guardian) may request forensics either orally or formally (by motion).  The latter method is preferred, this way, if the court still denies the request there is a record for appeal.

           Even in cases where an expert conducts an evaluation, his or her recommendation is not determinative of who will be awarded custody or if visitation will be granted.  The opinion of the expert is, in essence, but one factor of many to consider in the court’s decision as to what is in the best interest of the child.  The court will typically use the information gathered by the expert to help it to get a more comprehensive picture of all of the circumstances in the case, not to allow the expert to make the ultimate decision. The evaluation typically involves an interview with each party, an interview with the child, an observation of the child with each parent, contacting the school, physicians, treatwing mental health experts, family, friends and other relevant players in the child’s life.  He or she will also, administer psychological testing to either or both parents, and in some instances the child. Furthermore, some will make home visits and make other visits deemed necessary to make a more complete assessment.  The expert chosen to conduct the evaluation will be based on issues or concerns raised by either parent and/or the attorney for the child.  So for instance, in a case where the attorney for the child believes that there are some alienation issues, a psychologist may be employed to do the evaluation.  If the custody or visitation case is more of just a “fit vs. fit” test, a social worker may be suitable to conduct the evaluation.

         The evaluation may take up to several weeks, and some cases, several months to complete for a number of reasons. The interviews may need several sessions to accommodate all parties’ schedule, the testing may need time to conduct and complete, interviewing the collateral contacts, i.e. family, friends, etc. may be time consuming.  In fact, it is not uncommon for more than one evaluation to be conducted if the custody litigation takes several years, which is does occasionally occur.  It is because of this reason that some courts wish to forego forensics, their rationale being that prolonging child custody or visitation cases only serves to perpetuate conflict within families.  However, some courts merely want to expedite the process in an effort to address more protracted cases.

          In any case, where either parent is insistent that some serious concerns be uncovered, confirmed, explored it is advisable to implore the court to have forensics done.  Although the costs for these evaluations may be bourne by either or both parties, it can be deal closer for the parent who really wants to highlight the inability or instability of the other parent being a nurturing or loving parent.

          Feel free to contact my office to discuss your child custody or visitation, or other family law case.

TIP:  Forensics is very important when there is a sensitive issue you want to have addressed, if finances are an issue ask the court to direct that the state or the city picks up your portion of the forensics costs.

          Everyone has the right to be present or at least be put on notice of a court matter, especially where their rights as parents are affected.  This means that in child support, child custody, child visitation, paternity, child abuse/neglect, domestic violence and divorce matters, the other party (typically the parent and/or spouse) has the right to be notified that the other party has commenced a proceeding in Family or Supreme Court.  If that party chooses not to appear ( and default) then that is their prerogative, but they still have the right to be made aware of the case.  This rule applies to everyone, even parents that have not paid child support, that have not visited with the child or visited sporadically or the parent that has abused and/or neglected their child.  This is because everyone has the opportunity to be heard and being present to defend or advocate one’s position is the only way to exercise that opportunity.

          In New York serving the other party, particularly in family law or divorce cases, is governed by the Civil Practice Rules, the Domestic Relations Law and the Family Court Act.  The rules for serving the other party differ slightly, depending on the type of case and the particular court the case is being heard in.  In all of the cases, the party must be served  “personally”, that is by hand delivering the documents to that person, unless the court permits other methods.  If the party being served chooses to let the documents fall to the ground or throws them away in front of the process server, they are considered served.

         In child support, child custody or visitation and paternity cases the other party, typically called the respondent in Family Court, must be served at least eight (8) days before the scheduled court appearance.  If there is an order of protection included in the papers however, the respondent must be served at least 24 hours before the scheduled court appearance.  In divorces, however, the other party, typically referred to as the defendant, must be served within 120 days of the filing of the initial divorce papers in Supreme Court.  There is an exception for “orders to show cause”, which is a request for emergency relief while the case is pending.  The judge will determine when and how the other party should be served in these instances.

          Any person, other than a party to the case,  over the age of 18 can serve the other party.  They can serve the other party on any day of the week except Sundays or holidays, unless there is an order of protection included.  Orders of protections can be served by the local police and sheriff (although the sheriff will also serve parties in other cases for a fee).  Process servers also serve parties for a fee and are typically used in cases where there is no one else to do it or the party is difficult to locate or cannot be located within the vicinity.

         Difficulty typically arises when the respondent or defendant is unavailable for service, either deliberately or by happenstance.  If this is the case and the court date approaches without service being “effected”, then the petitioner can either request more time (in Family Court) or ask for permission to use “substituted service”.  If the case is in Supreme Court, then a formal application, which is done by filing a motion, must be made to request  more time for service or for “substituted service”.  The courts will usually grant more time when proof of efforts made have been provided.  In addition, the respondent or defendant can “accept” service by appearing in court, acknowledging that he or she was not actually served (or was served improperly) and accepting the papers while in court.  The other party accepting service only serves to expedite the case, obviating the need to adjourn the case or for a hearing on the issue, so that the respondent or defendant can be served properly.  However, in cases where the other party is not so cooperative and refuses to accept service, avoids service or their whereabouts are unknown, a request for “substituted service” must be made.  There are instances, nonetheless, where there is a dispute as to whether service was done or done correctly, in which case either party can request a hearing on the issue.  This hearing places the burden on the petitioner or plaintiff,  to prove that he or she did in fact have someone properly serve the court papers. If a process server was used, then he or she will more than likely be called to testify about the circumstances of serving the documents. This only delays the case and although beneficial in some cases, it generally serves little purpose in getting to the substantive issues in the actual case. Substituted service, on the other hand,  is service by means other than personal service, e.g. by giving the papers to someone else at the respondent’s home or work, by mailing them, by posting them on the door of the party’s last known address or by placing an ad in the local newspaper (which is usually what is required in divorce actions ), either way the court must give permission and will give specific instructions as to which method is allowed.

         Once service is completed, the party serving the papers must complete the affidavit of service, must have it notarized and the petitioner must bring it to court as proof of service (in divorce actions it is submitted to the court with the final documents).  The affidavit of service merely states who was served, when  and where that party was served, gives a description of the person served and details what he or she was actually served with.  It also includes the name and address  of the person who served the papers and that person’s signature is notarized. 

         There is no avoiding this step in the court process.  Unless the other party is dead and the petitioner has proof of their death (with a death certificate), having information about the other party’s whereabouts before filing the petition is highly recommended.  Especially in cases where time is of the essence, for iexample, where the petitioner is filing a petition for sole custody so that he or she can get a passport for their child to travel, having some idea of the other party’s whereabouts is paramount.  Conversely, avoiding service is not an effective means to avoid facing a particular issue because if this is proven then the court may make allowances by permitting the petitioner to serve by means other than personal service.

          Feel free to contact my office for your family law case.