Last week I started a discussion about the implications of court-ordered child visitation. My initial entry layed out different situations that constituted violation of child visitation orders.  Although the custodial parent may think what they are doing is rationale, justified and even something within their right, in these particular instances they are violating a judge’s directive.

          This week I will go through each of the scenarios and discuss how the court would probably handle the violating parent and attempt to restore “fairness” or grant redress for the noncustodial parent.  I say “attempt” because in most instances, there is no way to make up for missed time, opportunites to bond or chances to re-store stability between the child and his/her noncustodial parent once any or a combinations of these events occur.

Here are the scenarios and the court’s likely responses:

Scenario 1:  There is a temporary order of visitation that directs the custodial parent to allow the child to telephone his/her noncustodial parent at 6PM Monday thru Friday and that that parent should leave the child alone while talking to the other parent so that the child is the one to decide when to end the conversation.  The custodial parent remains in the room while the child makes the call and influences the child to end the conversation after a few minutes. 

Court’s Response:  Typically, the court would not see this as a grave defiance of its order since the child is actually still having some contact with the other parent.  The court may admonish the custodial parent, at times repeatedly, to allow the child to be alone while talking to the other parent.  But this is hardly the basis for the more extreme forms of punishment.  Since it is a temporary order, however, it does permit the court to get an immediate sense of how the custodial parent will behave in the future. 

Scenario 2:  There is a final order of visitation that orders the custodial parent to not be present when the noncustodial parent comes to pick up the child, that either another family member is to bring the child out to that parent or the child (who is old enough) walks out to the other parent alone, while the custodial watches from the door.  The custodial parent continuously brings the child out to the other parent when there is someone else at home to do it. 

Court’s Response:  Although this is not an extreme defiance of the court’s order, it still warrants a little more than an admonishment by the judge.  When the visitation order specifies that the custodial parent is not to be present, it is more often based on concerns raised by the noncustodial parent or his/her attorney.  These concerns may include the emotional impact on the child because of attachment issues, the safety concern of all or one of the parties because of conflict between the parents or merely to facilitate an easier transition.  Thus, continued violation of this particular order may raise other issues regarding the custodial parent’s real interest and ultimate ability to co-parent. 

Scenario 3:  There is an order of visitation that directs that the child and the noncustodial parent engages in therapeutic visitation at the psychologist’s office once a week.  The custodial parent neglects to bring the child to the scheduled appointments and misses several appointments. 

Court’s Response:  Now this sort of situation is teetering on the edge of being grossly violative.  In this scenario the visits are not taking place and that is a serious problem.  Initially the court will give a firm warning.  However, once those warnings are ignored then there are contempt sanctions that can be and will probably be imposed. The noncustodial parent may face monetary fines, costs (i.e. attorneys’ fees), community service, even incarceration.  Unfortunately, in this case there is an apparent issue with the relationship between child and noncustodial parent, hence the need for therapeutic visits, because otherwise there would be a real threat of change of child custody.   

Scenario 4: There is a temporary order of visitation that states that both parents are to pay 50% each of the costs to have an agency conduct supervised visitation between the child and the noncustodial parent.  The custodial parent refuses to pay his/her share and the agency refuses to monitor any further visits. 

Court’s Response: When only a temporary order is in place it keeps the case on the court’s calendar longer because the visits are not going smoothly, which ultimately defies the objective to increase time between child and noncustodial parent.  The visits should not not occur because of the custodial parent’s failure to pay nor should the progression of the visits be stalled because of this.  So the noncustodial parent can either pay the custodial parent’s share (and seek reimbursement or adjustment) or the court can change visits from supervised to unsupervised day visits. 

Scenario 5: There is an order that the custodial parent is to provide the noncustodial parent with medical information and/or devices for each visit.  The child requires very specific medical attention or treatment and is subject to emergency medical care when he/she does not get such treatment.  The custodial parent intentionally fails to provide the necessary information or device to the noncustodial parent which disrupts the visits by trips to the emergency room. 

Court’s Response:  Here again is another situation where the custodial parent’s ability to parent is called into question.  Depending on what the substance of the information is or the medical treatment required, the willful lack of communication can be a profound threat to the child’s safety.  The court, with a focus on the child’s best interest, will certainly threaten to report or will report, the custodial parent to Child Protective Services as a result of such antics. 

Scenario 6: There is a final order of visitation which includes weekly visits here in New York and the custodial parent relocates to California without the noncustodial parent’s consent or the court’s approval.  The custodial parent does not send the child or bring the child to New York for the weekly visits (it is too costly) so the noncustodial parent can not see the child unless he/she goes to

 Court’s Response:  Here is probably the most egregious forms of violation.  This constitutes a deliberate act of interference with the contact between child and the noncustodial.  Ordering a change of custody is a very likely reaction by the court in this scenario.  However, if the noncustodial is not in the position to assume custody then the court may have the custodial parent pay all travel costs for visits to New York, grant extended visits during vacations and holidays and may even adjust child support in favor of the noncustodial parent.  None of these measures are mutually exlusive with the court’s authority to impose contempt charges, including the most extreme ones. 

Scenario 7: There is a temporary order of visitation granting the noncustodial parent alternate weekend visits and the custodial parent refuses to either make him/herself available for the transfer or bring the children to that parent for the visits. 

Court’s Response:  This, like scenario 6, is one of the most egregious.  However, one difference here is that the order is temporary, which means that the case is still before the court.  The visits are not occurring because of deliberate acts of the custodial parent and this is an explicit violation.  Therefore all of the measures applicable there are certainly justified here. 

Scenario 8: There is a final order of visitation permitting unsupervised and uninterrupted visits between child and noncustodial parent, which denied the custodial parent’s request for supervised visits.  The custodial parent insists that either the other parent visits with the child at his/her home or neighborhood, that he/she accompanies them on their visits, or he/she calls the child incessantly  to get a minute to minute account of where they are or what they are doing.  

Court’s Response:  The court is not inclined to do too much here but modify the order.  The modified order may be more and more specific, i.e. if and when the custodial parent can call during the visits.  This sets the custodial parent up for being subjected to a contempt of court if there is continuous violation once there is a clear violation of the specific instructions.  

Scenario 9: The temporary order of visitation clearly states that when the custodial parent picks up and drops the child off with the noncustodial parent, that his/her paramour is not to be present.  When that parent does the transfer, he/she has their significant other present more often than not. 

Court’s Response: This is another situation where the visits are actually occurring so the violation of that part of the order is not as grave as some of the others.  However, if the paramour’s presence stifles the exchange then the court may consider this a factor in the event the noncustodial parent seeks child custody. 

Scenario 10:  The final order indicates that the custodial parent must provide medical, school, daycare, extracurricular activities, etc. contact information to the noncustodial parent within a reasonable time period.  Several months have gone by and the other parent still has no idea where the child goes to daycare or who the child’s primary care physician is. 

Court’s Response:  Communication between parents, or lack thereof, is an indication of one’s ability to co-parent and thus will be given weight if the noncustodial shall petition for child custody.  However, if that parent has no interest in seeking full child custody, the custodial parent may face contempt by the court. 

          Each of these responses vary by court jurisdiction, the judge, the status of the case and the order, the particular facts of each the case, i.e. history of domestic violence, child abuse/neglect, previous violations, the impact on the child, etc. and whether the parties are pro se or represented by attorneys. The measures imposed may be exhaustive, going from the minor to the more severe in any one scenario.  The judge may start out being lenient but may become more harsh if the violations continue.  Nonetheless, the relief requested by the noncustodial must justify the violative behavior.  For instance, one should not expect that a court would impose contempt of charges and imprison the custodial parent in Scenario 1.  At the same time, however, sparing the custodial parent imprisonment may be the route the court takes, in situations like Scenario 6, when other concerns, like the children’s emotional and psychological well-being are raised.

         All of these scenarios are clear examples of interference, while some are closer to parental alienation.  Parental alienation must be handled somewhat differently by the court, the attorneys and the noncustodial parent because of its implications.  Although interference is a serious enough issue, it does not necessarily require the same efforts by the courts and the use of its resources as in parental alienation.  In either circumstance, if visits are being interrupted, delayed or restricted, the impact on the child and the noncustodial parent warrants the court taken affirmative measures to address this.

         One major issue I have in many of these cases is that the custodial parent knows more often than not, that he/she could get away with this behavior.  They typically push the limits believing  that because they are the custodial parent, they have limitless authority and the “ultimate” right to do whatever they want, including violating the court’s directives.  My challenge is helping to prepare my client, the noncustodial parent, for the most profound option, petitioning for child custody.  I know that every one of my clients is not in the position, emotionally, psychologically, financially, to take custody of their child.   However, it is somewhat defeating when we continuously go to court making the same complaints and the court only “slaps the wrist” of the custodial parent.  Furthermore, it is frustrating to know that an act that may initially appear to be “trivial” by the court, may be an indication of something much more serious.   Nevertheless I make my formal requests and I do so consistently.  

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

          I have and will continuously support the position the legislators have, that both biological parents rights to have visitation with their children is as fundamental as any of the rights bestowed upon us by the U.S. Constitution.  Unless exercising those rights would be detrimental to the child, i.e. where there is child abuse or domestic violence, thereby defying what is in the best interests of that child, visits with one’s children should not be interfered with by anyone, including the other parent.  Statistics show that children prosper a lot more when they have two nurturing parents involved their lives, as opposed to having contact with only one parent.  However, there are still an immeasurable number of petitions for child visitation and petitions for violation of visitation being filed everyday in family courts. 

          This is the first part of a two-part entry on the range of legal consequences that may be imposed by the court when a child visitation order issued by the court is consciously and deliberately violated by the custodial parent.  And although this happens more often than a layperson may imagine, there are custodial parents, from all walks of life, who blatantly disregards a court’s directive.  Their reasoning typically ranges from their insistence on getting even with the noncustodial parent, their being caught up on satisfying their own personal and selfish wants or simply their knowing that they can get away with it.

          The Family Court Act, the Domestic Relations Law and other applicable provisions clearly establishes a number of penalties that the may be imposed when  court ordered child visitation is being intentionally violated by the custodial parent.  However, in this entry I would like to address what actually constitutes a violation.  Violations are can consist of behavior from interfering with a telephone visit to outright denial of visits by relocating out of state without consent or a court order.  The visitation order can be temporary one (while the case is still pending) or final one or issued by Family Court or part of a divorce in Supreme Court.

 Here are examples of violative behavior:

          Scenario 1:  There is a temporary order of visitation that directs the custodial parent to allow the child to telephone his/her noncustodial parent at 6PM Monday thru Friday and that that parent should leave the child alone while talking to the other parent so that the child is the one to decide when to end the conversation.  The custodial parent remains in the room while the child makes the call and influences the child to end the conversation after a few minutes.

          Scenario 2:  There is a final order of visitation that orders the custodial parent to not be present when the noncustodial parent comes to pick up the child, that either another family member is to bring the child out to that parent or the child (who is old enough) walks out to the other parent alone, while the custodial watches from the door.  The custodial parent continuously brings the child out to the other parent when there is someone else at home to do it.

           Scenario 3:  There is an order of visitation that directs that the child and the noncustodial parent engages in therapeutic visitation at the psychologist’s office once a week.  The custodial parent neglects to bring the child to the scheduled appointments and misses several appointments.

          Scenario 4: There is a temporary order of visitation that states that both parents are to pay 50% each of the costs to have an agency conduct supervised visitation between the child and the noncustodial parent.  The custodial parent refuses to pay his/her share and the agency refuses to monitor any further visits.

          Scenario 5: There is an order that the custodial parent is to provide the noncustodial parent with medical information and/or devices for each visit.  The child requires very specific medical attention or treatment and is subject to emergency medical care when he/she does not get such treatment.  The custodial parent intentionally fails to provide the necessary information or device to the noncustodial parent which disrupts the visits by trips to the emergency room.

          Scenario 6: There is a final order of visitation which includes weekly visits here in New York and the custodial parent relocates to California without the noncustodial parent’s consent or the court’s approval.  The custodial parent does not send the child or bring the child to New York for the weekly visits (it is too costly) so the noncustodial parent can not see the child unless he/she goes to California.

          Scenario 7: There is a temporary order of visitation granting the noncustodial parent alternate weekend visits and the custodial parent refuses to either make him/herself available for the transfer or bring the children to that parent for the visits.

          Scenario 8: There is a final order of visitation permitting unsupervised and uninterrupted visits between child and noncustodial parent, which denied the custodial parent’s request for supervised visits.  The custodial parent insists that either the other parent visits with the child at his/her home or neighborhood, that he/she accompanies them on their visits, or he/she calls the child incessantly  to get a minute to minute account of where they are or what they are doing.

          Scenario 9: The temporary order of visitation clearly states that when the custodial parent picks up and drops the child off with the noncustodial parent, that his/her paramour is not to be present.  When that parent does the transfer, he/she has their significant other present more often than not.

          Scenario 10:  The final order indicates that the custodial parent must provide medical, school, daycare, extracurricular activities, etc. contact information to the noncustodial parent within a reasonable time period.  Several months have gone by and the other parent still has no idea where the child goes to daycare or who the child’s primary care physician is.

          These are some of the examples of outright violation of the court’s order.  In each of these scenarios either parent filed a petition for child custody, sole or joint and/or for child visitation.  As a result, the court felt that it was in the best interest to grant custody, visitation and some specific directives with either order, that either parent must abide by.  Either way, the court order must clearly delineate the conditions and directives that must be adhered to before the non-violating parent may avail him/herself of many if not all of the legal consequences.

          The list of penalties include the court allowing more visitation or access, visits going from supervised to unsupervised, the entertainment of modification petition requesting a change of custody, suspension of child support, monetary sanctions, imprisonment and attorneys’ fees.  However, the punishment typically must fit the “crime”.  So in other words, in Scenario 1, for example, the court may not necessarily entertain a change in custody because the custodial parent continuously tells the child when to hang up the phone.  The interference in the noncustodial parent’s visit must prejudice his/her significantly to warrant such a consequence and in that scenario the other parent still has some contact.  Conversely, however, a petition for a change in custody where the custodial parent willfully violates  the court order will considered as a factor when deciding what is in the child’s best interest.

          I have represented either parent or child in each of these scenarios and can discuss further what the courts do and how these are handled based on practice, procedure and the law.  Next week I will discuss the penalty likely imposed by the courts in each scenario.

          Feel free to contact my office to discuss your child visitation, child vustody or other family law matter with me.

This day is set out to spread the word about Parental Alienation.  Parents all over the country will be showing up at Family Courts at 10:00 A.M. with pictures, letters and protest in support of this very widespread and understated epidemic.  Parents are encouraged to be vociferous in telling their stories, contacting their politicians, educators, social service workers, mental health professionals and the media. 

Since I recently devoted an entire month of blog entries to this issue I will only provide tips for dealing with parental alienation here.

Tips for parents facing Parental Alienation: 

1. Try to establish a  parenting plan that sticks to a plan and minimizes stress on the child.  

2. Go to court only if reasonable resolutions are impossible with the other parent.

3. Try to deal with the child with patience, understanding and a firm hand.  Do not tolerate disrespectful behavior but do not scold the child harshly.

4. Talk with the child in an age appropriate manner, explaining the affects the changes has on everyone’s lives. 

5. Alllow the child to explore his/her imaginations, interests, ideas, etc.  Build child’s self-esteem, while teaching/learning (and having fun) is a mutual process.

6. Stay abreast of the child’s life, and staying involved in school and athletic/ hobbies/ cultural/artistic interests. Volunteer in church, school, etc.  However, be careful not to overstep or overreach. 

7. Develop support with people who can influence children’s positive recognition of who you are and what you are all experiencing.  Encourage relationship between extended family members and child.

8. Do research in effort to understand developmental stage of children and attachment needs/separation- normal anxiety issues complicates child’s approach-avoidance response to separation/attachment and independence/dependence.  Recognize and accept limitations in how relationship is expressed with limited or awkward affection and emotional withdrawal/outbursts.

9. Practice non-confrontational ways to hone in on listening skills with children and others. Practice peacemaking solutions.
10. Hold other parent accountable in consistently documenting behavior and consulting with your attorney (who should get the law guardian or attorney for the child involved).

11. Know your rights and insist that they are not violated (particularly in court).

12. Maximize use of parenting coordinator, if available by the court.  Inquire about outside agencies.  ecessary appointed by the court, with arbitration/mediation power.
13. Find a therapist familiar with PA/PAS cases and legal process and suggest to court if applicable.  Explore Individual therapy for parents to cope with learning and taking responsibility for the individual/family problems in past.
14. Maintain some sort of  independent communication if possible using cell phone, instant messaging, letters, and photographs, gifts, etc. for any occasion.
15. Never blame children.

          Can 432 children be removed in New York without “actual” proof of child abuse?  Well that depends.  In Texas history, in U.S. history for that matter, it has never occurred.  In today’s climate where children are still suffering immeasurable harm and irreparable damage as a result of physical, sexual and emotional abuse, the states’ agencies have a very challenging responsibility even when abuse is a mere suspicion.  Most, if not all, players in the field of child protective services are encouraged to err on the side of caution.  This means that even a telephone call from an anonymous caller alleging any sort of child abuse will usually result in child protective services taking action.
          However, the question is not if the agency should act.  The issue becomes how far should the authorities go and if the means justifies the ends.  In New York, as in many other states, the standard for “emergency” removal is if the children are in “imminent danger” or “serious harm” to their life or health if they are to remain in the home.  There is a mandated procedure that Child Protective Services (“CPS”) or Administration for Children’s Services (“ACS”) must follow when there are reports of child abuse/neglect.  The procedure is that once the agency receives a report of child abuse/neglect, they have 24 hours to investigate.  Not all reports are true, since it is not only teachers, doctors, social workers, etc. that report alleged abuse.  Family members, neighbors, etc. also report allegations of abuse and their intentions are necessarily the protection of the child.  In that, the agency must go to the home, speak to the parents (or persons legally responsible), the children, school personnel, doctors, mental health professionals, etc. in an effort to determine if there is any merit to the allegations.  If the agency is convinced that there was in fact child abuse/neglect, then they can either a)  offer the family services and allow the child to remain in the home; b)  they can have the parent voluntarily place the child with a relative or foster care until the circumstances warrants a return to the home; c)  they can have the parent get an order of protection, in domestic violence cases, against another and allow the child to remain in the home; d)  they can remove the child and then file a petition in court or e)  they can file a petition in court and then ask for removal.
          Here we will discuss the most extreme case, where the child is immediately removed from the home, either before or after filing of the petition.  Before the child is removed the agency must make every reasonable effort to avoid removal, which is why in some instances services are first offered to the family and then the child is removed.  If the judge is convinced that there is “imminent risk” if the child remains with the parents or persons legally responsible, then he/she may order removal.  There are several factors the judge will consider when making this determination.  These factors include: history of the family, prior allegations of abuse/neglect, criminal history of either parent, just to name a few.  There are instances, however, where the child is removed from the home before the judge even hears the allegations.  In this scenario, the agency must file a petition in court within 24 hours of removal and provide written notice to the parents to appear in court on the next business day.  It is at this point that the judge will determine if removal was necessary, or if “imminent danger” existed warranting the removal. 
          Once the child is removed, the parent or person legally responsible has the right to appear in court and request a 1028 hearing.  The purpose of this hearing is to have the agency present the evidence they have justifying the removal.  The parents will then have the opportunity to challenge the evidence and make a request that the child be returned.  If the judge is not convinced by the evidence presented that the child is in imminent danger, he/she can direct that the child be returned to the home while the case itself proceeds to either trial or settlement.  As a precautionary measure, however, the judge can order that ACS monitor the family while the child is at home, which typically requires a caseworker working with the family to ensure that services are offered and complied with.

          The 1028 is the crucial moment for determining if emergency removal was justified.  At this hearing, the caseworkers, mental health professionals, parents, children may all be called as witnesses to justify removal or discredit the allegations of abuse or neglect.  In each case, the witnesses bearing the most “credible” evidence supporting the abuse allegations would be the ones testifying.  The burden is on the agency to prove by “preponderance of the evidence” that child abuse or neglect did in fact occur.  And although third-party or “hearsay” testimony is not admissible in court for its truth, hearsay is admissible in child abuse/neglect cases for the purposes of proving “imminent danger”.  Consequently, someone with firsthand knowledge or who was given firsthand knowledge can testify on behalf of the agency, about the occurrence of abuse/neglect for at this stage.
          So in essence, if the removal of 432 children had occurred in New York, based on an anonymous tip via telephone, unless someone else can testify that based on their own knowledge those allegations have merit, there could be no justification for the court not returning the children. A lot of what a judge decides to do is determined by the social or legal climate surrounding the case.  What the Texas authorities based their finding on was the fact that there were several young girls who had children, which infers that they were either physically and/or statutorily raped.  However, that is not necessarily the case.  Here, for instance, if the father of that child is not older than 17 years or the young mother was married with their parents’ consent, then the presumption of rape, constituting child abuse, can be rebutted.  The difficulty is that in sexual abuse cases, the children are typically the only witnesses.  Thus, any statements made by the child out of court may be admissible, even if it is not “corroborated” by other supporting evidence, for the purpose of removal.  Corroboration evidence may be provided in different forms, expert testimony of those who conducted interviews or behavioral assessments of the alleged victims or medical testimony, both were used in the Texas case.  As an aside, the Fourth Amendment protection against unreasonable search and seizure does not apply in Family Court, warrantless searches or lack of probable cause does not invalidate the removal.

         As an advocate, attorney and law guardian I do ethically, morally and professionally believe that the authorities must err on the side of caution in child abuse cases.   However, I also believe that individuals’ rights need to be regarded and not infringed upon without due process. The children and their families should have been afforded a case by case analysis instead of being subjected to a collective effort by the agency.

          Feel free to contact my office for a free consultation to discuss your child abuse/neglect case or any other family law matter.

         The most extreme forms of child abuse are physical abuse and sexual abuse.  Unlike other forms of child abuse or neglect, which may be a mere instance of ignorance, physical and sexual abuse are typically forms of aggression, hatred, power, control, disrespect, etc.  These most complex types of abuse are highly charged in Family court because of the criminal component, the impact on child custody and visitation and the social stigma associated with it. 

         A parent can inflict physical or emotional harm intentionally, recklessly or negligently but not accidentally.  The injury, however, must be a serious disfigurement, protracted impairment of physical or emotional health or protracted loss, impairment of bodily organ function or creates a substantial risk of such injury or death. Failure to act can also lead to a finding of child abuse. For instance, less serious injuries can often arise to the level of physical abuse when the condition was left untreated and becomes life threatening.  Or when the parent allows another to commit child abuse or neglect against their child, this too can lead to a finding of child abuse.  Proving such abuse usually takes the testimony of expert witness, which at times creates problems when it comes down to a battle of the experts.

          Emotional abuse is a form of child abuse when physical harm that is not as serious, causes long term emotional impairment by causing or creating a substantial risk of protracted impairment of emotional health.  Although corporal punishment is legal and not necessarily considered child abuse, the repeated use of corporal punishment can arise to the level of abuse.

          Sexual abuse is obviously when a parent allows or permits or encourages a child to engage in sexual acts or acts of sodomy.  This is most difficult because it has to be the child that corroborates the sexual abuse.  Sometimes children are afraid, have inconsistencies in their stories, experience emotional and psychological trauma or have pressures from family, all of which makes their testimony somewhat unreliable. 

         Treatment of child abuse victims and perpetrators in these instances is a lot more in-depth and intensive.  Once the parent has had allegations of such abuse lodged against them, the tone of every instance of the case (and related cases) becomes subject to higher scrutiny.  Intensive therapy, individual counseling, psychiatric evaluations and testing, prevention classes, orders of protection, restricted or limited child visitation are amongst the many devices implemented to safeguard the child from future harm.  And although rehabilitation is often the aim, these objectives do little to address actual prevention. 

          Awareness is a key element.  Getting the word and getting educated on the signs of abuse can minimize the proliferation of child abuse.

          Feel free to contact me to discuss your child abuse, child neglect or other family law case.

           In 1983, both the House and the Senate supported a proclamation naming April as Child Abuse Prevention Month.  This effort was a culmination of efforts of the U.S. Dept of Health and Human Services, Administration for Families and Children and  to bring awareness to the rampant and systemic tragedy of child abuse.  Although initiated by the federal government, many state and local government, social service providers and advocates also joined in the proliferation of awareness of the issue.

          As an advocate, law guardian, attorney and a human being, I believe that a huge cause of child abuse is ignorance.  Ignorance arises as a result cultural  beliefs, generational traits or merely oblivion.  Child abuse can easily be misconstrued as physical and/or sexual abuse.  However, child abuse and child neglect encompasses educational, health care even mental health issues.  Given that, I would like to discuss the legal definition of child abuse ( which I will address next week) and neglect as prescribed by Family Court Act, Article Ten.

Child Neglect Provisions: 

                        1.                  Impairment of Physical, Mental or Emotional Conditio: 

Defined as a state of “substantially diminished psychological or intellectual functioning in relation to such things as ability to think, misbehavior or habitual truancy.  The petitioner must show that these impairments were caused or at imminent risk of harm as a result of the parent(s) or caregivers neglect.  This is typically proven by caseworkers, school faculty, family or anyone else who observes the child regularly.

                        2.                  Failure to Supply Adequate Food, Clothing or Shelter: 

Requires proof that the child were deprived of food, shelther or clothing, despite the parent(s) or caregivers financial ability to do so.  No harm need be proven; it is assumed that it is not safe to deprive children of these most basic necessities.

                        3.                  Failure to Supply Adequate Education: 

Failing to provide adequate education includes not sending the child to school or not cooperating with the school in regards to planning for the child.  Proof must be provided that the parent(s)’s conduct resulted in impairment or imminent danger of harm to the child’s physical, mental or emotional condition, including impact on the child’s education, Home schooling is acceptable if it meets the Education Law requirements.  Truancy for a teenager poses other issues, that may provide a legitimate excuse for the parent(s).

4. Failure to Provide Adequate Health Care:

A showing that a parent failed to provide medical, dental or surgical care, although financially able to do so, can lead to a finding of neglect.  When it is obvious or should be obvious that a child needs medical attention, parent(s) should make efforts to obtain assistance from the appropriate medical provider.  Failure to get or maintain immunization , to get psychiatric/psychological or services for a special needs child are also included. 

                        5.         Misuse of Drugs or Alcohol: 

                        A parent failing to exercise a “minimum degree of care” in providing supervision or guardianshiop by misusing drugs or alcohol to the point they lose self-control may be subjected to a neglect finding.  The misuse must “substantially impair” a caretaker’s ability to function.  However, there is a caveat that a person who is voluntarily and regularly participating in a recognized rehabilitation program is not a “prima facie” case for neglect, there must be proof that the child’s physical, mental or emotional condition has been or is in imminent danger of being impaired.  Mere possession of drugs is not necessarily proof of misuse but if those drugs are within the child’s reach, may support a finding of neglect.  Use of drugs during pregnancy is not typically enough, but evidence of use by the presence of drugs in the newborn’s system is.

                        6.                  Abandonment: 

                         Leaving a child or failing to communicate with the child or agency where the child is being provided care or is in fostercare for a period of at least six months may result in a neglect finding.

                        7.          Mental Illness: 

                         A parent’s mental illness coupled with a showing of actual or potential harm to a child may support a finding of neglect.  Failure to accept treatment may also support such a finding.   An expert would need to provide the proof of mental illness.

                  8.                The “Catchall” Provision:

                          Includes a parent’s failure to exercise a “minimum degree of care” in providing proper supervision        or guardianship by committing “any other act of a similarly serious nature that is similar to the inflicting or allowing the infliction of harm or the risk of harm” which requires assistance of the court.   This provision is the one that can cause the most confusion when there are good intended parents who are candidly oblivious of their neglect.  Cases indicate that this includes leaving a child unattended in the home, outside of the home,  in the care of someone else who is inappropriate to provide care, failing to provide contact information when leaving the child with a caretaker and related incidents.  Domestic violence falls under this provision, where even victims who allow continued abuse after a thorough analysis of the circumstances surrounding the continued abuse are  explored.

Awareness is the key to prevention.  Legislative measures, judicial intervention, social agencies and community based programs are all essential in providing awareness by disseminating information as well as addressing underlying social issues that often causes child abuse.   A focus on family often times minimizes instances of Article Ten cases being brought.  The depth to which we can all contribute is endless.

Feel free to contact my office to discuss your child abuse or family law case.

          In New York there is no court proceeding to declare a minor emancipated.  Emancipation of a minor, typically a minor between the ages of 16 and 18, is determined by acts of the minor. The minor must be living separate and apart from their parents (or legal guardian), not living in foster care, not receiving any financial support from their parents or legal guardians and not in the custody and control of their parents or legal guardians.  Although emancipation may determined by these factors for some purposes, declaring emancipation of a minor child for child support requires court intervention. 

          In child support cases, emancipation is not automatic when these factors (or similar factors) exist.  The court will look at the “totality of the circumstances” to determine if the child’s behavior shows an intention to relinquish their parents’ control and support and the noncustodial parent can prove that the child is physically, mentally and financially able to pursue life on their own.  Pursuant to the Family Court Act, a minor is entitled to child support until the age of 21 years old.  Emancipation for child support purposes may be found when the minor child, a child less than 21 years, either:
                  a) marries
                  b) becomes gainfully employed full-time
                  c) enlists in the U. S. armed services
                  d) voluntary abandons the parents home and/or refuses to abide the

                                   reasonable rules of their parents
                  e) completes 4 academic years of college
                  f) permanently resides outside of the parents’ home

          When the minor child marries, he/she may be considered emancipated if they leave the parents’ home and the spouse provide all of the basic needs for that minor.  If, however, the child marries and still resides in the minor’s parents’ home, relying on the parents providing food, shelter, medical, etc. the minor may still be considered a dependent entitled to receive financial support from the noncustodial parent, unless the spouse of the minor lives in the home too.

          Being employed full-time does not automatically absolve the noncustodial parent of his/her obligation to pay child support.  If the minor child works full-time but either earns less than the self support reserve, which is 135% of the federal poverty guidelines, does not get medical or health insurance coverage or still relies on financial support to cover basic living expenses then he/she may still be entitled to financial support from both parents.  Even if the minor lives apart from the parents, if he/she relies on some financial support from their parents, they may not be considered emancipated.  Conversely, living in the home while working full-time does not prevent emancipation, particularly where the minor contributes to the household including paying rent.

          Enlisting in the U.S. armed services typically terminates the noncustodial parent’s obligation to pay child support, except in rare circumstances.  If while the minor child is enlisted food, clothing, shelter, etc. are required while the minor is on inactive duty,  if these necessities must be provided for by the parents then the minor child becomes dependent, therefore entitled to child support.

          Where the child abandons the home, voluntarily and unjustifiably, emancipation may occur.  In situations where the child refuses to live by the custodial parent’s rules, refuses to foster or maintain a relationship with the noncustodial parent, leaves the home without permission or consent and refuses to return, a finding of emancipation may be determined and child support terminated.  Although these cases are rare, there are instances where the court will terminate an order of support for that child.

          Choosing to live outside of the parents’ home and maintaining a household with no contribution from the parents, even where the minor child gets contributions from other family members, roommates, paramours, etc, may constitute a finding of emancipation, justifying a termination of child support.

          Although these instances are clearly outlined in the Child Support Standards Act as to what constitutes emancipation, there are circumstances where emancipation should be declared outside of these particular scenarios.  First, in situations where a minor child  becomes pregnant or fathers a child, this responsibility should not be bourne by the noncustodial parent.  However, in New York the courts may order the noncustodial to continue to provide child support for the minor child if the custodial parent can prove that he/she still provides for that child’s basic needs.  Next, a minor child who has dropped out of high school and refuses to do anything productive with their life should be forced to get a job to provide for his/her own personal and living expenses.  Even a minor child who has graduated high school but has no interest in attending college or trade school, he/she should be forced to obtain full-time employment to provide for him/herself.  However, in both of these situations the child is still considered a dependent of the parents, and remains entitled to child support.  Further, a child who works part-time but pays rent or contributes to the household expenses in the custodial parent’s home should obviate financial contribution from the noncustodial parent.

          Either way the noncustodial parent has the obligation to petition the court to modify the child support order to reflect the change in circumstances.  Even if the court does not agree that the child is emancipated, since none of the delineated scenarios are automatic, it may still find cause to deviate from the Child Support Standards Act and lower the current support obligation based on the circumstances.  However, in cases where the court does agree that the minor child has become emancipated, that determination can change at any time the circumstances change warranting a reinstatement of the child support obligation.

          The key is to maintain some communication with the child and others in the child’s life.  Expecting the custodial parent to be forthcoming about the changes in living arrangements, employment status, etc. may be expecting too much.

           Please feel free to contact for a consultation on your child support, child custody or other family law case.
 

          Infedility seems to be rampant these days, serving the basis for at least half of the divorces I handle here in New York.  The most recent highly publicized example is the Elliot Spitzer scandal, his trysts are adulterous affairs.  Being unfaithful to a spouse is becoming much easier mainly depletion of social mores and technology.  The internet, particularly, makes cheating on a loved one very attractive with the plethora of websites, chat rooms, etc.  To some people, cheating is the mere fact of having an online emotional bond with another person, while to others visiting porn sites is crossing the line.  Either way, to most of us having a sexual tryst with another certainly meets the test, qualifying as a breach of trust.

         Although adultery is one of the legal grounds for divorce in New York, it is definitely not commonly used.  Not even in the most egregious cases do attorneys use adultery as a grounds, mainly because of the difficulty of proving it in court.  Adultery is defined as “the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant”.  (DRL 170)  Although this may sound quite simplistic, proving it in court is not.  The plaintiff has the burden of proving that the “material” allegations in the complaint are true.  This means that the facts must be “corroborated” or proven by someone other than the betrayed spouse, his/her testimony is not permitted.  Nor can the defendant spouse “consent” to the grounds of adultery, not even by not appearing in the action or not denying the allegations in the “answer” to the divorce complaint.  The plaintiff spouse still needs to prove his/her case regardless of defendant’s spouse admission or acquiescence to the allegations of adultery.  And since affairs are not often public obtaining direct evidence to prove it is very rare.  Circumstantial evidence is commonly the means to prove adultery, but even in these instances the plaintiff spouse must still show opportunity, intent and inclination.  So, for instance, a private investigator, the lover, etc. testifying to the adultery is usually not enough.

          Further, there are “affirmative defenses” to adultery, which means that the defendant spouse must present a case, as a defense, to defeat the claim of adultery.  Affirmative defenses must be raised in the defendant spouse’s answering papers.  These defenses are:
                  • The betrayed spouse caused or consented to the adultery
                  • The betrayed spouse has forgiven for the adultery
                  • More than 5 years has passed since the discovery of the adultery
                  • The betrayed spouse has also committed adultery
          An alternative, the grounds for divorce is cruel and inhuman treatment is much more successful.  Cruel and inhuman treatment requires a showing of emotional abuse which psychologically, emotionally or physically affects the betrayed spouse.  In that respect, a cheating spouse flaunting the affair or admitting to it is a clear example of emotional abuse.  All cruel and inhuman requires is that the plaintiff spouse shows that on at least three occasions within five years of the petition filing, the defendant spouse behaved in a manner that was humiliating and/or embarassing to the other spouse causing emotional or psychological pain.

          So if Silda Spitzer decided to sue for divorce on the grounds of adultery, she may very well have a chance.  She does not need the prostitute, she can merely rely on the information the public was provided.

          Please feel free to contact my office to discuss your divorce or family law case.