It is advisable to get as much information beforehand about the judge your case will be heard by.   Before the scheduled court appearance visit the courthouse to ask questions about the judge, the attorneys, etc. so that you have some idea of his or her practices, tendencies, beliefs, etc.  And if possible, consult with an attorney that has experience with your sort of case and the particular judge.

          It is no secret that fathers and mothers are treated very differently in the courts, whether that be Family Court or Criminal Court, judges, lawyers, social service workers, etc. all have their biases about either or both parents.  Consequently, the outcome of a case with same or similar facts may render a very different result depending on the particular position either parent takes.  There are statistics on the number of cases where sole custody is awarded to fathers, joint custody to both parents and sole custody to mothers, but nothing is up to date.  However, it is blatantly obvious that there is still some gender biases in awards of child support to custodial fathers, sole custody awarded to mothers and orders of protections issued to both. 

          Let us first take a look at fathers petitioning the courts for sole custody of their children.  Many studies, articles and statistical data indicate that approximately 10%-20% of fathers are awarded sole custody of their children.  However, this number fluctuates drastically depending on whom is asked.  Women’s rights groups and domestic violence prevention advocates will indicate that there are more fathers getting sole custody of their children, including those that have been accused of child abuse and domestic violence, than the data reports.  However, many fathers’ rights organizations report that only a small percentage of men are awarded sole custody, even in cases where women have been guilty of parental alienation and falsely reporting child abuse or domestic violence.  However, what is certainly not debated is the change or shift in the paradigm since the 1960’s. Up until the 1970’s, the courts consistently ruled in favor of mothers when it came to child custody, under the “tender years doctrine”. This was a judicial presumption that gave custody to mothers since they were considered the nurturers and the primary caretakers, and thus much more suitable for custody of young children than fathers.  This antiquated thinking was based on the pre-women’s movement belief that women were inferior to men, mainly capable of only tending to the home and family.  It was the second wave of the women’s movement, where the focus was on the inequality of laws and cultural inequalities, that somewhat served as the impetus for the “best interest of the child” standard in lieu of the “tender years doctrine”.  This transformation made it where it was no longer an “inherent” right of women to have custody. 

         Today, there are several factors the court will consider when applying the “best interest of the child” standard in child custody cases (along with all other cases involving children in family law).  And although one very important factor considered is the parent that was the primary caretaker, there is still gender bias in these cases.  The courts will not necessarily automatically ignore a father’s request for custody when he has been the primary caretaker, but there are many times when extra attention will be paid to “rehabilitating” the mother so that she has a fighting chance.  I have seen instances where the judge will give the mother every opportunity to prove herself by directing that she goes to parenting class ( or therapy even), by suggesting that she become more involved in the child’s life, etc.  While if it were the mother that was the primary caretaker and the father requesting custody, the courts will usually try to dissuade or discourage him from proceeding on a custody petition.  Oftentimes, court personnel, lawyers and mental health professionals will also attempt to influence the father this way.

         In child support cases, prejudices of the courts also come into play.  Although I have firsthand knowledge on the number of child support petitions filed by custodial fathers, as compared to those filed by custodial mothers, few will ever admit that there is a disparity based on bias.  For instance, more often than not, the custodial father will forego pursuing child support, while it is almost unheard of for a custodial mother put off seeking child support.  Since there is still a huge gap in the earning potential between men and women, the fact that child support is not sought by custodial fathers typically does not compromise their child’s standard of living as much as if it were the other way around.  Nonetheless, when the petitioners are fathers the courts generally take the noncustodial mother’s earnings as what is reported by her, as opposed to requesting that they prove what they can earn.    Furthermore, women and men may have the same job title or position, but the court will impute earnings for each using the same criteria differently.  In addition, women violators are not sanctioned as harshly as men who violate their child support orders.  And although fathers do in fact account for more than half of the payors of child support, the proportion of violators amongst gender may be near to or slightly less than equal.

         Many believe that having a women to represent fathers makes a huge difference.  And in many respects I think that there is some validity to that.  However, in cases where the judge is pretty fair in his or her decisions, a competent attorney is all that matters.

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

During the 1980’s and 1990’s it was common for many babies to leave the hospital without being named and now many of these children (or young adults) still have birth certificates that indicate “Baby boy Doe”.  In these instances it is always advisable to have the birth certificate changely almost immediately.  However, many did not and are now faced with the imminent need to have a complete birth certificate.  In that case a court order is necessary because many hospitals do not have the records for these births ( as well as the Dept. of Health) and thus a change in name is required by obtaining a court order. 

          I am often asked about name changing for children when the biological father abandoned their child, when there is a step-father who takes care of a child, when the wrong father has been named on the child’s birth certificate, among many other situations where there is such an interest.  Although the laws in New York on name changing is pretty lax for an adult, it is a bit more stringent when it comes to a child.   The main reason is because the courts want to ensure that when the parent or guardian is seeking to change the child’s name to the name of someone other than a biological or adoptive parent that it is in the child’s best interest to do so. 

         In New York, a parent or guardian can change the name of a minor by either filing a paternity petition (if paternity has not been established) or a name change petition in Family Court.  Name changes can be filed in Family Court for children up to the age of 18 by the parent or guardian and from 18 years to 21 years old by the individual him or herself.  Anyone older than 21 years must file in either Civil Court or Supreme Court (where filing fees apply and the rules differ a little bit.). 

          Where the parents were not married and the name change request is for the child to have the biological father’s last name, or that of another person, paternity must be established first.  Establishing paternity means either having the biological father sign an Acknowledgement of Paternity or by filing a paternity petition in Family Court.  It is much quicker and easier to have an Acknowledgement of Paternity signed since this is a form provided by the Dept.of Social Services.  If a paternity petition is filed in court, the biological father must consent to paternity to expedite the order of filiation being issued by the court, otherwise the matter will be prolonged by a trial being held to determine paternity before proceeding to the name change.  Once an order of filiation is issued, it will be sent to the Dept. of Health and Mental Hygiene (”DOHMH”), which will approve the order and then send it back to Family Court.  Family Court will then have both parents complete and sign a form consenting to the name change, subsequently the form will be sent to the Dept of Health which will then issue the new birth certificate within 10 weeks (typically).

         Where the parents were not married and one parent is requesting that the child’s name be changed to a step-parent’s last name, or someone other than the biological parent, consent of the biological parent may be necessary, this is the case whether the child had the biological father’s last name or not.  First the step-parent will have to submit an affidavit acknowledging that he understands that this is not equivalent to an adoption and that there are no legal rights of parent-child.  When the petition is filed, the biological father must be put on notice, giving him the opportunity to object.  If he objects he must inform the court of his objections and his reasons.  If the objections are reasonable, the court will deny the name change.   However, the mere fact that the biological father objects does not necessarily mean that the court will not approve the name change.  If the parent or guardian seeking the change has a substantial reason why the name change should be granted, and the court finds that it is in the child’s best interest, the petition may in fact be granted.  In situations where the biological father has abandoned the child, not providing any support, not visiting or making any other contact with the child for a period of at least six (6) months (consecutively), then the court can grant the petition.  Also, in cases where there has been serious domestic violence or repeated child abuse by that parent, the court will more than likely allow the name change. 

         Filing a petition for a name change is not to be confused with correcting a name or adding a first or middle name to a child’s birth certificate.  If all that is needed in a correction, this can be done by contacting the DOHMH directly.  However, if there is a problem with locating the hospital records, if the child was not born in New York or for some other reason birth records cannot be located, a court order may be necessary, which requires that a name change petition be filed.    
          In situations where the biological father agrees to a surrender, a termination of his parental rights or consents to a name change, this certainly speeds up the process.  Proof of either must be provided along with proof of paternity, in the methods mentioned, unless the parents were married at the time of the birth.  Randomly changing your child’s name is not a matter of making the request, biological parents have rights unless those rights were terminated or surrendered and the court is aware of this.  I often recommend that the party seeking the change approach the other parent with their intention beforehand in an effort to obtain consent.  Assurances may have to be made that some obligations of that parent may be waived in exchange for the name change.

         Changing the child’s name does not absolve the other parent of his/her obligation to pay child support nor does it abrogate their right to seek custody or visitation.  Conversely, the step-parent may be held responsible for child support for the child that has legally assumed his name but may be denied custody or visitation of that child in the event of a divorce or separation from the child’s biological parent.

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

It is always better to seek out the help offered by the agencies throughout the state than to do nothing when you are dealing with an uncontrollable child.  If you have custody, guardianship or are otherwise responsible for that child, sending him or her to live with someone is not going to absolve you of your legal responsibility.   

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

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

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

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

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

If you are a non-parent seeking custody, be mindful of the fact that if your petition fails that the dissidence may occur as a result of the filing.  Unless you are almost certain of prevailing, try to foster a open and honest level of communication so that legitimate concerns about child rearing can be addressed directly with that parent.  Because subsequently filing a visitation petition may also be futile if  the natural parent has discord for you, because visitation rights of a non-parent are not inherent as parents’ and thus, any violations of court ordered visitation will be trivialized by most courts. 

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

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

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

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

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

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