We all know that the nation is facing a severe foreclosure crisis,  New York is no different.  Although New York’s reported rate of foreclosure has not reached the level of foreclosures nationwide, it is reported to be 34% more than a year ago.  This is a problem for all involved but is particularly a problem for couples that are divorcing and hope to start life anew with their property’s sale proceeds. 

          In a contested divorce, where the parties have issues to resolve like child custody, property distribution, etc., what happens with the marital home is quite often a major dilemma.  Many people come into the marriage either with no property, property they acquired prior to the marriage or property they own with someone else and then they acquire property with their new spouse.  It is quite typical for married couples to purchase a home together, mainly with the objective of raising their family in it.  Of course property acquisition is not limited to residential property, nor is it limited to the parties’ marital home.  However, in many working class and middle income areas this is the norm. Marriages that last a couple of years or a couple of decades, distribution property upon divorce can be disappointing particularly in this market. I want to take a look at how the property is distributed in contested divorce situations.

          First, the parties must ensure that the mortgage is current.  This is particularly an issue where one party is responsible for paying the entire mortgage while the other party either is a homemaker or covers other expenses as part of their economic agreement. If the mortgage is not current due to the responsible party’s willful failure to pay then either party can request the court to demand that he or she continues to pay the mortgage while the divorce is pending.  Once a judge directs payment, noncompliance can subject that party to contempt of the court penalties, which are as extreme as incarceration.  The problem occurs where delinquency is not deliberate. 

          Next, it is essential to obtain the outstanding mortgage balance.  This may not be possible if only one of the parties happens to be on the mortgage and/or the note.  Therefore, oral or written authorization must be obtained from the other party to speak to the lender.   In addition, determining if there are any other liens against the property should certainly be done.  It is not uncommon for real property to have outstanding tax liens, building code violation liens, parking violation liens, etc. levied against the property.  It is very important to  get as much information regarding these liens as possible and to verify their accuracy.  This is important because if one party is responsible for such liens then the other party may want relieved of any obligations to pay these.

          Next, it is very important to get an idea of what the property is worth.  This may need to be done several times since the market fluctuates and contested divorces can take up to several years to conclude.  And although property appraisers are trained to do this, unlike a few years ago this is not necessary .  Nowadays, one can go to the plethora of websites to get this information. It is advisable to get a few quotes from a number of resources to narrow the margin as to value.  Furthermore, getting a realtor to do this is also not required,  but is certainly very useful it is not too burdensome to do.

          Once the liens have been ascertained and the value determined then the parties have an idea of what the sale proceeds will be.  This is very important because in contested divorces this will help to resolve all other property issues, child support and in some cases child custody.

          New York is an “equitable distribution” state which means that although property acquired during the marriage is subjected to distribution amongst the parties, that distribution is not automatically 50-50%.  The court will examine several factors to determine how much of the proceeds each party should get, if any.  For instance, a husband that was the “breadwinner” for the family and spent a disproportionate amount of the family’s assets on things that did not benefit the family may get less than 50% of the proceeds, out of fairness. Conversely, a homemaker wife that never worked or provided any financial contributions to the family may get less than 50% of the proceeds.  In either of these examples, most courts will look at several other factors when making this determination but for the purpose of this article I have simplified the scenarios.

         Then there are situations where “separate property” was used to acquire the marital property and in equity that party should be compensated. Or one party may prefer to take other property and waive any interest in the sale proceeds in exchange.  Or the court can allow the custodial parent to remain in the marital home until the parties’ youngest child reaches the age of 18, while the noncustodial defers his/her interest until that time comes.  In this case, the custodial parent can be directed to pay all of the carrying charges for the home or direct the noncustodial parent to pay all or some of those charges.  Either way, the noncustodial parent must walk away without the benefit of that part of the parties property, which in some cases is quite a load to bear.  This raises other concerns because several things can happen to deprive the noncustodial party of his interest, even in the future.  If the custodial parent is ordered to pay the costs of the home, he or she can encounter problems that make that impossible.  Should that party buy the other out? Should the house be sold? Should the noncustodial have to pay and if so should that entitle him or her to occupy the home?  Or should the house go into foreclosure?

          That is the dilemma, especially now because of the state of affairs..  There are many individuals that are unable to maintain mortgage payments regardless of which scenarios plays out. Whether it be deliberate or uncontrollable, the fact still remains that many people are losing out on what is in many cases, the only asset they have.  The parties can amicably agree to place the home on the market but still face foreclosure.  The mortgage payments must still be paid and homes are staying on the market a lot longer than previously.  There are times when the parties have resolved their other issues in the contested divorce and have moved on with their lives but for this one last hump.  And for many this causes even more of a financial burden because maintaining the mortgage depletes the little resources left from the divorce, if any were received.

          There is no easy answer to this dilemma.  What many are doing is reaching out to the mortgage companies to find other resolutions.  Unfortunately, many of those options do not offer any solution to the financial burdens many splitting parties face.  Alternatively, many file for bankruptcy, which offers some relief, depending on the parties particular needs. Nonetheless, there is no straightforward or concrete way to undo the harm.  It is just the unfortunate climate many have to deal with with no real relief in sight.

          Please feel free to contact my office to discuss your contested divorce or other family law matters.

     Last week I recognized National Family Month by writing about joint custody which is essentially keeping families intact.  The gist was not necessarily keeping families intact logistically but more in a theoretical sense.  Focusing on the importance of “intact families” has always been one of the main objectives of my practice, and consequently all of my entries, and thus that entry, nor this one, are any different.  My definition of intact family is where the focus is on the child or children, not the parents as individuals.  If both parents keep the emotional, psychological, intellectual and developmental well-being of the child as their paramount concern, then the family will inevitably remain cohesive regardless of the living arrangements.  Even in some cases that had a history of high-conflict, redirecting the focus can be beneficial.  This week I would like to discuss one of the tools I think is underutilized, underemphasized and underestimated in its effectiveness.  Parenting education programs is certainly the way of the future as far as conflict resolution in child custody, child visitation and divorce cases is concerned.  However, since the concept is still a relatively new one in New York, more has to be done to disseminate more information about these valuable resources.  In the last decade, parent education programs have soared in numbers throughout the country.  However, the Chief Judge of New York has just implemented a statewide initiative in 2005 that emphasizes the impact of divorcing or separating families on children.  And although New York has only recently allowed courts to order parents to attend parent education programs (except where there is a history of domestic violence), there are still many judges who will not even make referrals unless an inquiry is made by one of the parties’ or their attorneys.  However, other professionals, i.e. mental health workers, lawyers, agencies, etc. can make referrals to these programs while parents can voluntarily choose to attend.

     It is no surprise, either by some of the previous entries or by other available resources, that divorce or separation has negative affects on children behaviorally, psychologically and emotionally.  However, what may be insightful is the fact that there are methods that can minimize or eradicate these affects by incorporating preventive and intervention measures.  Most parenting education programs focus on such skills as teaching parents how to help their children cope with the dissolution/separation, how to minimize damage to their children from conflict, how to make responsible decisions regarding the children; showing parents how to foster parent-child relationships, encouraging them to co-parent and educating them on effective ways to resolve conflict.  With this as the agenda children are more likely to communicate more openly about their feelings, acquire effective methods of problem-solving, become more resilient and have more self-confidence.  Studies of families that have participated indicate that parents felt that they would not need to litigate their child custody or visitation issues in the future, were better able to deal with their children during the most sensitive times and were able to maintain or improve the parent-child relationship.

     New York has the New York State Parent Education & Awareness Program.  There are several providers throughout the state that are certified by this initiative.  Most of the programs are comprised of one or two sessions, ranging from 4-6 hours per week and are affordable (the cost being no more than $100).  They are usually led by judges, lawyers, mental health professionals who all have experience in child custody and visitation.  Some of the programs also address the impact of domestic violence on child custody and visitation.  The family court in some counties have their own programs, for instance the New York City Family Court P.A.C.T. in New York County, while others are run by agencies, i.e. Catholic Charities, Diocese of Brooklyn and Queens.  Either way, the programs all have common components which include the psychological issues and the legal issues associated with child custody and visitation. 

     In my experience, I have yet to have a judge order the parties to participate in a parenting education course, even in the cases that showed some potential for resolution through the program.  And although many may still question the effectiveness of them, mainly due to  the disparity in the results of various studies’, participation certainly cannot hurt.  I personally make recommendations to my clients to either read some helpful materials or to participate in actual programs in an effort to impart some knowledge of how to help make the process somewhat easier.

Please feel free to contact my office to discuss your child custody or visitation case.

          Part of May and  part of June, is National Family Month. The objective of recognizing this period between Mother’s Day and Father’s Day is to build a nation of confident kids and healthier families. The celebration was created by KidsPeace to raise awareness and underscore the importance of family — kids, mothers, fathers, relatives and caregivers — and to encourage supporting one another. National Family Month is an opportunity for families to enjoy special time together, to foster and renew relationships, identify or discover needs and to remind everyone of the importance of family involvement in raising healthy, confident kids for America’s future.  My focus this week is on joint custody as a means to highlight the importance of family.  Despite the fact that family can be defined based on where one receives love, support and guidance, I wanted to take this time to specifically address joint child custody.

          The soaring of single family households has set off debates in social policy discussions and political agendas in the past few decades.  Numerous studies show that children raised in single parent households are more likely to fall behind academically, become drug/alcohol abusers, are more likely to become sociopaths, amongst being infirmed with many other social ills.  However, there is documented research that indicates that there are just as many children of high-conflict families that tend to have adjustment issues and therefore wind up becoming substance abusers, delinquents and academic failures where both parents are in the home.  The one inference that can be drawn from all or most of these studies, as well as many similar studies, is that children are more likely to excel and to become productive members of society when conflict among the parents is at a minimum or non-existent, in any family setting.  Thus, the main argument against joint child custody seems to be circular.
         This happens to be the major debate amongst anti-joint child custody advocates across the nation.  Currently there are 37 states plus Washington D.C. that have either a presumption of joint custody or a strong preference for joint child custody, while many other states has had proposed legislation for either.  And although there some antagonists who say that joint child custody should not be presumed or preferred under any circumstance, even in situations where the only disagreement between the parents is with regards to a parenting time schedule, in many of these presumption or preference states the children fare a lot better than those that do not.  These children are more likely to transition from divorce or separation much more smoothly than those in sole custody arrangements.  In fact, recent data has shown that the divorce rate in joint child custody states is significantly lower than other states. Although there is little dispute of the deleterious affect of high conflict on children, how one assesses the conflict, addresses it and prevents it all affect the overall family structure no matter what the family dynamics.    So the critics’ concern that instability, tension and dissension makes joint child custody impossible and impractical does not necessarily have merit.  Dissolving or disrupting the family is not necessarily the way to address these issues.  As the supporters suggest, some continuity, maintaining a relationship with both parents and respecting both parents’ rights to raise their family should be the norm and not the exception. Conflict is usually a sign of some underlying issue, that can be resolved by other means which are not necessarily mutually exclusive with joint child custody.   I do agree that there are some families that are incapable of functioning normally no matter what.  However, I believe that families should be given a lot more authority and resources to work it out amongst themselves.
          There are some states that enacted legislation which presumes or prefers joint child custody.  New York is not one of them. In fact New York will only order joint child custody if the parties agree or even if they do agree, if there is no history of domestic violence or breakdown of communication.  Let me define joint child custody under New York law.  Joint custody can be specified in two different terms a) joint legal custody and b) joint physical custody.  Joint legal custody is the joint decision making regarding the educational, religious and major medical issues.  The day-to-day decisions are usually left up to the custodial parent.  This means that decisions regarding whether the child should attend private school as opposed to public school, for instance, will be made by both parents not just the parent the child resides with.  While joint physical custody, on the other hand,  is the sharing of the decision making and the actual living arrangements.  The child spends an equal amount of time residing with both parents.  In this situation, all of the decisions are made by both parents since the child usually spends part of the school week at one parent’s home and the other part and the other parent’s home.  This scenario is not as common as joint legal custody, particularly because it requires both parent’s maintaining living space for the child, dual set of personal belongings, liberal communication, etc.  And although in New York joint physical custody does not absolve either parent of their responsibility of paying child support, there are instances where neither party pays the other child support. 
          I recently went to the American Bar Association & American Psychological Association’s Joint Conference on Child Custody where the future of joint child custody was addressed.  The one point that seemed to prevail amongst the mental health professionals with a position on joint child custody was that the legal system is not necessarily the answer.  In high conflict cases or not, the need for parenting education, parenting coordinators, mediators (or conflict resolution) mental health services has a greater potential for making joint child custody work.  I do agree that attorneys, judges, etc. oftentimes only serve to exacerbate the problem.  Although there are some instances where the parents need court-ordered services to help guide them, a lot of times the person most suitable to make decisions about their family is that person who is on the frontline.

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

          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.