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.

          Recently a Family Court judge in Nassau County ruled in favor of rapper 50 Cent’s request to have his child support payment lowered from $25,000 per month.   The judge, after a hearing on the issue, lowered his child support obligation from $25,000 to $6,500 per month.  This ruling willl more than likely be appealed but has certainly given many noncustodial parents some satisfaction in knowing that there are some courts that at will listen to their plight. 

          In New York, child support is determined by combining the parents’ income up to $80,000 and applying a mathematic formula to that amount (less FICA taxes, NYC or Yonkers income taxes, child support paid for another child pursuant to court order or written agreement or alimony/maintenance paid to a prior spouse or the custodial parent).  The key is that the mathematical formula must be applied on the combined parental income up to $80,000.  The court has discretion to apply the formula to combined income over $80,000, if it chooses to use the formula on income above the cap it must give specific reasons for so doing in its decision.  When the court decides to deviate from the mathematical formula on combined income above the cap, they must base this decision on several factors.   These factors include:

                  a) the financial resources of both parents and the child
                  b) the physical/emotional health of the child, any special needs
                  c) the standard of living the child would have had if the parties were still living together
                  d) the tax consequences to the parties
                  e) the non-monetary contributions of the parties towards the care of the child
                  f) educational needs of either parent
                 g) the substantial differences in both parents’ gross income
                 h) needs of other children under the care of the noncustodial parent (limited to    instances  where the financial resources available to those children is less than what is available to the child)
                 i) extraordinary expenses of the noncustodial parent in making visitation or having extended visitation
                 j) and any other factor the court deems relevant

          Once a child support order is entered by the court, either using the mathematical formula or deviation based on these factors, the order can be modified either upward or downward.  A downward modification petition (which is what 50 Cent requested) requires a showing of “substantial change in circumstances”.  Typically when a downward modification petition is sought, the noncustodial parent is making the request because of a loss of employment or reduction in income.  Having a new or second family is generally not a legitimate basis for a downward modification petition.  Nonetheless, even in cases where there is a loss of employment of loss of partial income the courts will scrutinize the noncustodial parent to determine if the change in employment status was involuntary and will require that the parent make every effort to find commensurate work and/or income.  So in other words, merely going in to inform the court that one was recently laid off from his/her job or demoted with less pay is not sufficient, the court can either order the party to seek another job with similar pay or get an additional job so that the income from the two jobs make up the previous salary.  Where the change was due to issues such as lack of job performance, absenteeism, drug/alcohol abuse, etc., these are all considered “voluntary” for the purposes of a downward modification petition. The court can “impute” income to the noncustodial parent where he/she has a profession, license/certification, trade/skill or college degree.   The court assumes that a noncustodial parent with any of these credentials have a particular earning potential based on what the average salary is for that particular field or industry.  So even if the noncustodial says he/she is unemployed, with these credentials he/she will more than likely have their modification petition denied based on their earning potential.  Prevailing on a downward modification petition, on the other hand, based on loss of employment or income requires a showing that the change in circumstances was “involuntary”.  Involuntary change in circumstances more often results from a permanent or temporary disability, being laid off as an unskilled laborer due to no fault of the noncustodial parent or severe economic slowdown.  And even where this is the case, the court will make every attempt to get the noncustodial parent to find another job or to acquire some employable skills through job training.

          Just as the noncustodial parent can seek a downward modification, the custodial parent can seek an upward modification (which is what 50 Cent’s son’s mother did).  The requirements for filing an upward modification also include a showing of a “change in circumstances”.  Proving a change in circumstances means that the petitioner must show that the child’s needs have increased, the cost of living has increased to the point where it impacts the cost of raising the child, the change in the current and prior lifestyle of the child and that the noncustodial parent’s income or assets has increased substantially.  The mere fact that the noncustodial parent’s income or assets have increased is not sufficient unless it is coupled with supporting proof that the child’s needs have increased.  However, there are instances where the court will increase child support without showing that the noncustodial parent’s income increased, where a significant amount of time has passed since the initial order of support was entered.  For instance, the court will more than likely increase the amount of support in a case where the child support order was first entered when the child was 3 years old and the custodial parent has not gone back to court until the child turned 13 years old.  The court assumes that a teenager’s needs are a lot more than that of a 3 year old. 

          It is much more difficult to have the court grant an upward modification than it is to grant a downward modification petition.  For whatever reason, courts are partial to providing more support for a child than taking any of it away. In 50 Cent’s case, the court more than likely took into consideration some of the factors previously discussed. It is public information that 50 Cent’s income increased drastically in the past few years than from when he first came onto the scene.  And although 50 Cent clearly did not meet any of the criteria for a downward modification petition, he was able to convince the court that his son’s needs were currently being met, that his mother’s cost of living has not increased and that the standard of living he had previously could be met based on the new amount.  One other very important factor I believe he was able to prove to the court was the current child visitation schedule, the fact that he spends a substantial amount of time with his son and provides for his son outside of the child support obligation.

          So a word of caution, do not expect the same treatment that 50 Cent received.  Although it is quite refreshing to see that all judges are not so inclined to automatically deny the downward modification based on an insurmountable obstacle, it is somewhat bothersome that it was done in a one case where such an outcome would probably not have caused a dent in his pockets.

Feel free to contact my office for a consultation on your child support, child custody, child visitation cases. 

          March has been declared Ethics Awareness Month.  Although it started out as  a weeklong acknowledgement, by professionals in the financial industry back in 1990, it has since evolved.  Today is has been broadened to the entire month of March and to other industries acknowledging it.

          It is very challenging in family law, divorce law and criminal law cases to adhere to some of the ethical obligations attorneys are required to.  In New York, our rules are somewhat are nationwide standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, sometimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  Particularly as the attorney for the child, there are too many times when my initial reaction is to do what is “right” as opposed to what is “ethical”.  However, because I took an oath that must be upheld, I always internalize my initial reaction and do what is “ethical”.  Here I want to explore some of the practical instances where both of these principles collide, particularly in representing the parents.

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

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

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

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

          In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications.  However, ethically speaking an attorney can in no way participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission. 

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

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

Feel free to contact my office to discuss your case.