Tip:  Before going to court on a child support matter, if you are the noncustodial parent and you have other children born before the subject child get a written agreement with the previous child(ren)’s mother if there is no court order for child support for them.  That written agreement should conform to the Child Support Standards Act (get a copy from Family Court) required amount of support in order to be considered by the current court. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          In New York family law matters can be heard in either Supreme Court or Family Court depending on whether the parties are married, divorced or never married.  Child custody, child visitation, child support, maintenance (spousal support), domestic violence and paternity cases may be addressed in either court.  However, there are procedural rules that differ in each court.  Lets address each one separately:

          Supreme Court will hear child custody, child visitation, child support, maintenance, domestic violence and in some instances paternity either while a divorce is pending or after a divorce judgment was issued.  Child custody or child visitation will be heard in a divorce action, particularly where the Family Court has not addressed the issue in the past or not has recently heard the case before or while the divorce is pending.  If for instance, a custody petition was initiated in Family Court first and then a divorce action commenced shortly thereafter, the Supreme Court may not hear the issue if it believes that it would be feasible for the case to remain there.  The Supreme Court judge has the discretion to consolidate the custody or visitation case with the divorce action on its own or if either party requests it.  However, the Family Court judge does not have the authority to transfer the custody petition to Supreme Court, in any circumstance.   In either case a law guardian, or attorney for the child and/or forensics expert can be appointed, however the costs and procedure for both differ dramatically in each court.
          With child support and maintenance (spousal support), again if there is a divorce pending in Supreme Court, the judge will hear these issues unless a case is pending or was recently addressed in Family Court.  However, if a child support case is pending in Family Court, the Supreme Court judge must consolidate the actions before that case can be transferred otherwise it remains in Family Court, which happens very often.  Maintenance, or spousal support as it is referred to in Family Court, will be handled differently depending on if it is heard as part of a divorce or as part of a child support case in Family Court.  Maintenance will only be addressed in Supreme Court as part of a divorce, while spousal support may be awarded in Family Court whether there is a divorce pending or not. In addition, maintenance requires the judge to look at several factors, which include the standard of living the parties enjoyed while living together; the health and age of both parties; any skills, training, experience the payee spouse has; etc.  Spousal support, on the other hand, does not necessarily require that the Family Court judge take all of these factors into consideration.  The Family Court judge will normally order spousal support where the payee spouse is unemployed and the payor spouse is employed, and he/she is convinced that extra assistance is needed.  Consequently, because of the more liberal requirements in Family Court, the amount of the awards is typically very disparate.
          Domestic violence cases are also addressed very differently.  In Supreme Court, the judge will generally hear the facts and circumstances of the orders of protections cumulative with the facts of the divorce, as opposed to Family Court where the judge will hear facts concerning the order of protection only (unless there is a child custody/visitation issue).  Furthermore, the order of protection hearing in Family Court may take several months or even years, largely due to the volume of cases since the parties do not have to be married to file a petition as is required in Supreme Court, while that issue is resolved much quicker in Supreme Court.  Further, the Supreme Court judge may provide an order that is substantially longer in duration than a Family Court judge, in extraordinary circumstances (the Supreme Court orders may be as long as 18 years).
          As for paternity, a petition for paternity can only be filed in Family Court, either alone or as part of a child support or child custody/visitation case.  In Supreme Court, the issue of paternity may arise only as a tangential matter, for example when either party is requesting that the judge deviate from the statute for the child support determination.  Because a child born of  a legitimate marriage is presumed to be the legal child of the husband, paternity is rarely addressed in a divorce action.
          It is not uncommon for a party to file any of these petitions in Family Court even while a divorce is pending.  Especially in order of protection situations, parties prefer to go to Family Court because of its convenience and it being “pro se” friendly.  In a divorce action, however, if there is a domestic violence issue and one of the parties wants an order of protection he/she must have their attorney file which is much more technical and cumbersome.  Nonetheless, in many instances the court personnel will inform litigants that they are to proceed to Supreme Court if there is a divorce pending, thereby circumventing the need for a formal application in Supreme Court.  Another procedural difference is that in Family Court, Support Magistrates hear child support, spousal support and paternity cases, while Court Attorney/Referees hear child custody/visitation cases and in some courts orders of protection cases as well. While in Supreme Court  only actual judges hear these cases, they would be the judges that are assigned to the divorce.  Furthermore, in many counties the Integrated Domestic Violence courts will hear all of these issues, and can address domestic violence criminal cases as well as child abuse/neglect cases.  So although one may wish to opt for one court over the other, that choice may not be available if the parties are not married or were never married.

           Feel free to contact my office for your divorce or other family law matters.

          Keeping in the spirit of National Family Month, I am going to address a topic that I get quite a bit of inquiry about.  This week I would like to discuss adoption, not placement or agency adoptions but adoptions by consent, these include those where the children are in the custody of one of their biological parents.  There are circumstances where the parents have never been married and either the custodial parent has married someone else after the birth of the child or has a paramour that is in effect the child’s stepparent because they all live together.  In situations where the parents were married and got divorced, and then the custodial parent subsequently wants another to adopt the child it is much more difficult to do unless the other biological parent consents to the adoption or has abandoned the child. 

         Adoption is the legal process by which an adult takes on the rights and responsibilities for a child that is not biologically his or hers.  Consent from both biological parents is necessary, unless the rights were terminated by the court pursuant to an abuse/neglect proceeding,  the other parent abandoned the child for a period of at least six months (meaning he has not provided any support, has not visited the child or acted in any manner the way a parent would toward the child), the other parent is deceased or the other parent is unknown ( has not signed the acknowledgement of paternity nor has there been an order of filiation issued by Family Court).  Either way the parental rights are given up either voluntarily (or surrendered) or pursuant to court order. Furthermore, a child over the age of 14 years must also consent to the adoption. Although I am discussing adoptions amongst parties that are within a family, unrelated parties can agree to an adoption amongst themselves or an individual can advertise in the newspaper that he/she has an interest in adopting  a child.

         A married or unmarried stepmother or stepfather can adopt, a married person who is separated pursuant to a seperation agreement filed in court can adopt (as long as they have been legally separated for at least 3 years) and a same sex couple can adopt (and although same sex couples’ rights and responsiblities are not the same as heterosexual couples with regards to their relationship , there is no such distinction in adoption of children.) as long as these individuals are at least 18 years old.  Adoptions take place in Family Court or Surrogate’s Court in New York.  They can be very technical with regards to the papers that need to be completed and filed so they typically require the services of an experienced family law attorney.  Once an adoption has been completed in the presence of a judge, it is final, the biological parent cannot change his or her mind (except in circumstances where they request relief from a higher court within a reasonable time after the adoption has taken place), except where the biological parent signed a surrender outside of the court he/she has 45 days from that date to change their mind.  There are no court fees for this type of  adoption but there are attorneys’ fees and other administrative fees involved.

         Once an individual adopts a child, he/she is obligated to adhere to rights and responsibilities for that child even if the he/she is no longer in the relationship with the other parent.  His/her obligation to pay child support continues, he/she may be the subject of an abuse/neglect case and he/she can be sued for child custody and/or visitation as would be the case for a child that is biologically his/hers. Conversely, once a biological parent surrenders his/her parental rights to a child their obligation to provide for that child is also terminated, as well as his/her right to child custody and/or visitation.  In addition, that parent cannot be subjected to abuse/neglect proceedings unless he/she is the actual target of the child abuse petition.

         So for those who want to make the family “whole” again or to provide a home that the child has not had the opportunity to experience, he/she may have the option of having their significant other officially and legally step in the role of “mother” or “father” if these requirements are met.  Children certainly prosper greatly when they are nurtured in a loving two parent home, as opposed to a one parent or dysfunctional home so if your circumstances meet these elements it is certainly worth exploring.

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