In observance of October as Domestic Violence Awareness month, I have listed a set of laws that were passed this year specifically aimed at those victimized by domestic abusers.  Although New York’s legislators have made some strides, there is still a very long way to go.  Out of more than a couple dozen bills presented to the legislative body, these are the ones that actually passed both the Assembly and the Senate.  Here is the list:           

          Expanding Family Court Orders of Protection Allows all victims of domestic violence the right to seek a civil order of protection through the state Family Court System. Previously only married parties, parties with a child in common, or those related by blood or marriage were able to go to Family Court for a civil order of protection.  This amendment now avails those who merely had a relationship, whether they lived together or not, to go to Family Court.  (A.11707)          

         Merit Time for Domestic Violence Survivors Allows domestic violence survivors incarcerated for committing crimes against an abuser, as a direct result of the abuse suffered, to earn merit time and participate in temporary and early release programs.  Prior to this new law, only non-violent offenders were able to participate in temporary release programs.  This law serves to enable convicted and incarcerated defendants who suffered from domestic abuse the opportunity to rejoin society a lot sooner than other violent offenders. (A.6150)            

       Crime Victim’s Award This bill would help reduce financial hardships for crime victims by defining “necessary court appearances.” The bill would allow victims to be reimbursed for the transportation costs they incur while appearing in court proceedings related to the prosecution of their attackers. The crime victim compensation was previously narrowed to certain out of pocket expenses, i.e. medical costs, cost of repair or replacement up to $500, cost for residing in a domestic violence shelter, loss of income and cost of attorneys fees before the board up to $1,000.  Now transportation costs to court are included so this is no longer a deterrent for a victim to cooperate with the District Attorney’s office in prosecuting their abuser/attacker.   (A.6675)            

        Banning Plastic Knuckles This law adds plastic knuckles to the list of illegal and dangerous weapons. This broadens the list of weapons that causes serious physical injury. This law makes it possible to charge the abuser with possession of a dangerous weapon in addition to assault, battery, manslaughter or murder.  (A.10522)                  

          Orders of Protection and Gun Ownership Requires a judge, who is presiding over a criminal or family court proceeding, to inquire as to the possession of a firearm by a defendant under an order of protection. Although many judges inquired whether the alleged offender possessed any firearms, all too often many overlooked this important query.  Now this inquisition is mandatory.  (A.1497)    

      Creating a Criminal Penalty For Obstructing A Call for Emergency Assistance This law establishes that an act to intentionally prevent a person from making a call for emergency assistance is a crime. The measure is aimed at preventing domestic violence. This is now a misdemeanor crime, where previously it might have been considered when there were other charges against the abuser.  (A.614)

It is our duty to our family, friends, colleagues, neighbors who suffer at the hands of their abusers, whether it be physical, emotional or economic abuse to become active and remain proactive in affecting change.  This means keeping abreast of the bills being presented and contacting our local and state officials to ensure that all that can be done is in fact done to save these victims.

Feel free to contact my office to discuss your domestic violence case or any other family law issue.

          I wanted to get the word out about this very important workshop that is being  sponsored by the Real Dads Network.   This program is a comprehensive program focusing on the issues that many unemployed and underemployed dads are facing.  This topic is very important because as many of you know from reading my blogs, non-payment or inconsistent payments of child support can have some very dire consequences.  And given the unfortunate circumstance of not being able to hire an attorney, many pro se fathers wind up being incarcerated for a period, losing their job, their home, etc.  This program will provide some very vital information and resources for fathers, young and old, on where and how to seek help when faced with these tough issues.

                  Here is the information:

                 Dads Embracing Fatherhood (DEF) Fatherhood Initiative program “Where Attitude Counts”!

                        Contact person: Theresa Dobie at 718-302-2057 ext. 202

                        Start date: Thursday, October 16, 2008, 6-9 pm and every  following Thursday for 10 weeks at the same time. Location: 790 Broadway, 2nd floor, Brooklyn, NY.

                        Incentives Provided: intensive case counseling, court advocacy, education on child support & Family Court system, relationship workshops, financial literacy workshop, family mediation and parenting workshops, money stipends totaling $250.00, carfare allowance and dinner provision for each workshop.

                      Requirements: Be unemployed or under-employed at the time of enrollment, have a current child support order, age limit 45 and under, must provide documentation for all requirements, able to commit to 10 week workshop schedule.

  For those of you that attend, please contact me directly to let me know how it helped.

          In keeping with the tone heightened by Alec Baldwin’s recent campaign to bring awareness to the plight of parental alienation, I decided to address recent legislation signed into law in New York this month concerning child custody and visitation and the impact of parental alienation.
   
          It is no secret that one the factors, amongst the several, the courts consider in making a determination in child custody cases is whether the parent seeking custody has abused or neglected the child.  However, the mere allegation of child abuse or child neglect or the existence of a report with the statewide central registry is not necessarily enough to substantiate a claim of child abuse or neglect and is viewed differently in child custody cases.  The adversarial parent may report false claims as a deliberate move to bolster his or her position in a custody proceeding.  As a result, the law states that an admissible report made to the central registry must have allegations that were investigated, noted as a reported allegation that is supported by some “credible evidence” and must be marked as an “indicated” finding.  This is to minimize the adversarial parent’s ability to benefit from entering into evidence of an “unfounded” finding or false claims of child abuse or neglect that they reported merely to sabotage the other parent’s case.

         On the other hand, a false allegation of child abuse or neglect is also a factor considered in custody proceedings by the court when making the determination of “the best interests of the child”.  However, this factor is not the sole factor and therefore may not be determinative of which parent is the more “fit” parent.  As a matter of fact, there have been several instances where not only the judge and the law guardian downplayed the profound effect false allegations of child abuse has on children, but I have seen court appointed experts recommend that custody be awarded to the parent who blatantly used manipulation and conniving tactics to create a wedge between their child and the other parent, totally disregarding what this does to the child.

         Interference with a child’s relationship with the other parent is also a factor given some weight in child custody proceedings.  Courts typically view a parent who consistently and deliberately interferes with the child’s visitation with the other parent as a strong indication that that parent is “unfit”, holding that such behavior is wholly antithetical to what is in the best interests of the child.  Nonetheless, courts do vary as to how they address a parent who willfully interferes with parent-child visitation, imposing sanctions ranging from ordering additional visits to civil contempt of court charges, depending on the circumstances of the particular case.

          Unfortunately, there are still plenty of naysayers who believe that parental alienation does not exist, that it is just propaganda.  These disillusioned folks believe that parents conveniently made up this theory to create some sort of “footing” in an arena where they would normally not have a chance.  They also believe that spreading such a notion only hurts children, causing parents who have legitimate concerns of child abuse or neglect to remain reticent, thereby perpetuating the abuse.  NYS Assemblyman Bing was the original supporter of the bill, which was signed into law on September 4, 2008.  This is the new amendment to Domestic Relations Law Section 240 which reads as follows:

       “…If a parent makes a good faith allegation  based  on  a reasonable  belief  supported  by  facts that the child is the victim of  child abuse, child neglect, or the effects of domestic violence, and  if that  parent  acts  lawfully  and  in  good  faith  in  response to that reasonable belief to protect the child or seek treatment for the  child, then that parent shall not be deprived of custody, visitation or contact with  the  child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable  actions  taken  based  on  that belief.  If  an  allegation  that  a  child  is abused is supported by a preponderance of the  evidence,  then  the  court  shall  consider  such evidence  of  abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to  that child…”
         The justification behind this law was that the reality of losing a child in a custody proceeding merely based on an allegation of child abuse would have a “chilling effect” and can lead to continued abuse.  The law seeks to impart fairness to contested child custody proceedings to parents who would otherwise be penalized for reporting child abuse even if there was no proof.  In practical terms, this law is superfluous because a recent review of courts’ decisions in child custody proceedings in New York show that judges are still reluctant to order custody or a change in custody based solely or primarily on the fact that there were false allegations of child abuse or neglect.  Even in cases where the court appointed experts indicate that there are concerns of the emotional or psychological impact of such capricious antics, judges will go to the extreme to find that same parent the more “fit” parent and award custody to him or her.  I have witnessed judges employ a myriad of tactics to justify the levity or lack of emphasis on the existence of parental alienation or interference in many cases. And whether it is because they don’t believe it is as serious as some make it out to be, they have their own biases about the mother as custodial parent as opposed to the father, etc.  the fact still remains that it is often ignored.  Furthermore, a new law that only serves to give the courts another means of justifying their decision to downplay the presence of parental alienation and its impact on parent-child relationships is certainly something we could all do without.

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

          Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their “habitual residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.

           Oftentimes I am asked about jurisdiction when either parent  and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order.  Although there are many instances where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but then something happened to spark a modification or enforcement in the current custody order. 

           New York, as well as many other states) has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”) in 1999, which became effective in 2002.  This statute aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state  to avoid another state’s jurisdiction.  The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question of jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions for custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state.  These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent);  or where the child is in New York and there are concerns of abuse or neglect .  These are all scenarios that warrant the application of the UCCJEA.

          The UCCJEA sets forth alternative methods of asserting jurisdiction, which are :  1)  where it is in the best interests of the child based on the “significant connections”  to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.  Let’s take a look at each of these:

           Scenario 1:  This section only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

         Scenario 2:    This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed.  In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced (by the child protective services) that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

          Scenario 3:  This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists).  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from NY, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

         Scenario 4:  This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction). 

         When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

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

          There are areas of law that are esoteric in that they have very particularized principles, rules and laws that apply to only to that specialty.  It is often said that the area of family law encompasses a myriad of disciplines and therefore requires, at the very least, a basic understanding of many different principles in several areas of law.  One of those disciplines is criminal law, which certainly overlaps, if not collides in many instances, with family law.  Criminal law is one of those practices that require some understanding of its ramifications on the highly sensitive and very volatile area of family law.  I would like to address how the penal law statute, and the criminal procedure laws, apply in Family Court (and in Supreme Court in divorces) and thus impacts the overall outcomes.

          First, family offense proceedings, cases where the party is seeking an order of protection, is certainly one area where the criminal component comes into play. A party related by blood, marriage or consanguinity can get a civil order of protection in Family Court, and in Supreme Court if the parties are spouses in the middle of a divorce.  The order proscribes one from coming within a specified distance of another (including children) and/or from harassing, assauting, menacing, etc. that other party.  In addition, those circumstances, where the accused has caused some physical injury or serious physical injury, may also lead to an arrest of that party and is in fact very likely.  In the event there is an arrest, even though the Criminal Court may issue an order of protection, the Family Court may also issue an order based on the same set of circumstances (although the duration of the respective orders differ).  Although all Family Court cases do not warrant a companion criminal case, the court can certainly direct a litigant to the District Attorney’s office, the police or civilian agency if a criminal investigation is justified.  Conversely, however, a similar case that ends up in an arrest will not necessarily be directed to Family Court for a “civil” order of protection but the victim may certainly go to Family Court, particularly where there are children involved.

          Next, child abuse or neglect cases often have a criminal component, involving one or both of the parents or “persons legally responsible”.  Where a parent causes physical injury, serious physical injury or the threat of either, he or she subjects him or herself to possibility of a criminal charge of assault (physical or sexual), endangering the welfare of a minor or other related criminal charge.  In these cases, the police, as a “mandated reporter” must refer the case to the child protective agency.  If, however, the case gets to the agency first, the agency may refer the case to the District Attorney’s office for criminal investigation and/or prosecution.  Depending on the nature of the facts and circumstances, the case may definitely have both a Family Court and Criminal Court component comcomitantly.  The outcomes of both differ significantly, a criminal case subjects one to incarceration, probation, fines, etc, while a abuse or neglect case in Family Court may result in supervision by the agency, the child being placed in foster care and/or termination of parental rights (in addition to a whole host of services being provided to the family to ameliorate the initial problems).

          In child support cases, there is also the possibility of the application of the criminal statute.  Although there is a penal law section that is applicable to cases for non-payment of child support, these cases are rarely prosecuted.  Nonetheless, there are instances where incarceration may be imposed for a non-custodial parent who has been found to be “willful” in not making child support payments.  The penal law makes it a misdeamor or felony crime for failure to pay child support depending on the amount owed.  Although it is rare that parties are prosecuted on the state level for not paying child support, the law  remain on the book.  On the other hand, there is a provision in the Family Court Act that authorizes a judge to impose a period of incarceration of up to six months for a party’s failure to pay for no justified reason, although this is not considered penal in nature. 
 

          There are advantages and disadvantages to pursuing a case in Family Court as opposed to Criminal Court and vice versa.  These distinctions are based primarily on the different procedures, standards of proof, applicable provisions, etc. that are particular in each court. For example, in criminal cases the burden of proof is on the prosecution and the standard of proof is “beyond a reasonable doubt”.  This means that the prosecutor must prove that the party (defendant) accused of committing the crime did in fact commit the crime, by proving every element of the crime.  They must do this by putting on a case where there is not just a “reasonable” doubt but a doubt beyond what a reasonable person would have.  While in Family Court cases, either the agency ( CPS/ACS or Corporation Counsel) or the other party has the burden of proving that the party petitioned (respondent) did in fact commit the act alleged  The standard of proof in these cases is either a “preponderance of the evidence” or “clear and convincing evidence”, depending on the phase of the case. Additionally, other rules of evidence, i.e. hearsay, differ in their application, as well as the use and application of constitutional provisions. The penal law, criminal procedure law, the civil practice rules, as well as some administrative codes apply to criminal cases, while the Family Court Act, Social Service Law, Mental Hygiene Law, civil practice rules apply to family law cases.  Although some of these principles overlap, their applicability to the different cases determine the manner in which they govern, which ultimately affects the outcome of the case. 

          Of course there are sections of the penal law that apply regardless of which court the parties are in or the type of case.  Perjury, which is lying under oath; filing a false report/claim; forgery; contempt (although civil contempt is more likely); illegal possession of an official document are all criminal charges that may result from a case in Family Court or any other court for that matter. Since Family Court judges have no jurisdiction to proceed on a Criminal Court case and the power to prosecute is within the District Attorney’s office, if there has been a crime committed in a family law case, that court must refer the case for prosecution.  The discretion to prosecute lies with the District Attorney’s office, so merely referring a case to the office does not guarantee a criminal investigation or prosecution.  Family law issues that arise in Criminal Court do not necessarily need to be referred to the child protective agencies but certainly do not go unnoticed.  In other words, criminal cases that raises some issues of abuse or neglect or child support violations will certainly be addressed by the court but more often than not was already brought to the agency’s attention.  Again, since police officers are “mandated reporters”, they will call the agency at the time of an arrest therefore giving the agency the opportunity at the outset to file a petition.

          New York has established a courtroom specifically designed to handle the intersection of criminal and family law, where there is domestic violence.  The Integrated Domestic Violence Part’s main objective is to mainstream the overlapping issues, ensure  consistent rulings & outcomes and to provide trained workers to address the cornucopia of issues involved in these cases.  And although it certainly helps to have one judge hear all of the issues, both criminal and family law, there are times when a different set of issues result in the end.

           Feel free to contact us to discuss your criminal or family law case.

         Despite our very lax moral standards today, married parents are still treated differently from  never married parents in Family Court, Supreme Court and Criminal Court in New York, based on traditional values.  Depending on whom you ask, the distinction can be viewed as beneficial in outcome to either parent and favorable with respect to treatment by the courts. 

         Of course divorce only applies to married individuals so that is the only way any other related issues arising out of the marriage can be heard in Supreme Court.  Although once the parties are actually divorced, child support, alimony (maintenance), property distribution may be heard in Supreme Court.  However, there are limits to this, where a violation , contempt or modification of some property issue, arising out of the divorce judgment, is part of the application to that court and where the divorce judgment specifically states that the Supreme Court has “exclusive” jurisdiction.  Otherwise, the issues of child support, child custody/visitation will be heard in Family Court once the parties are no longer married.

         In paternity cases, there is a “presumption of legitimacy” which is the assumption that a child born out of a legal marriage is a child of the parties.  This presumption can be rebutted by either party but may be difficult if there is no other identifiable person conceding paternity.  Particularly for child support, a father’s claim that he is not the father, despite the fact that the parties were married at the time of conception, will not automatically absolve the father of his obligation to support the child.  The courts can deny his application based on the theory of “estoppel“.

         In child support cases paternity must be established before the petition can be heard by the court.  However, again where the parties are married or were married at the time of conception, the court will assume that the husband is the father.  Also, with respect to married parties where only the mother is the biological parent, the stepparent may be obligated to pay child support if he has been providing support for the child during the marriage.  This would not be the case if the parties were just living together, a paramour has no financial obligation to the child of his partner even if he has done so in the past.

         Spousal support may be requested in Family Court when the parties are married.   If there is a divorce pending however, the court will try to direct the parties to address this issue in Supreme Court as part of the divorce. 

         In child custody or visitation cases, the fact that the parties were married, assuming they lived together, will help the court to determine the relationship between the parents and child, the involvement of both parents with the child, the environment maintained with both parents being present, the standard of living enjoyed by the child with both parents in the home-amongst a host of other factors.  Since married parties are viewed as much more focused and able to provide a stable environment, they are given the benefit of starting out of level playing field.  This however, is not the case when there is a history of domestic violence or child abuse.  There is no distinction where parties are or were married but one of the parents is the stepparent.  Stepparents have no rights to petition for custody or visitation of their stepchild.

         In adoption proceedings, again if the parties were married or are married, he must consent to terminate or surrender his legal rights.   And unlike cases where the father has abandoned the child, a father that was married to the mother at the time of conception must be put on notice and given the opportunity to consent or object.

          In guardianships, where the parties are married but one is the biological parent, the other being the stepparent and the other biological parent is deceased the stepparent may petition for guardianship only.  While if the parties were not married, the stepparent would have no “standing” to petition the court for either custody or guardianship since the child has one biological parent still living.

         In name change cases, if the child was conceived out of a legal marriage, the court will not permit the changing of the child’s name if the other parent does not consent.  Particularly where the mother wants to change the child’s name from the father’s name to someone else’s name, the court will require a showing of being in the child’s best interest.  There are exceptions, for instance in cases of domestic violence or child abuse/neglect.  A child born out of a legal marriage will more than likely have his fahter’s name (even if the child is not biologically his), whereas non-married parents must sign an Acknowledgement of Paternity to have the father’s name or add his name  to the birth certificate or to be considered the “putative” father.  The former will negate the need for the court to establish paternity in child support or child custody matters, while the latter will not.

        In juvenile delinquency or PINS cases, an integral part of the court process is the investigation conducted by the Department of Probation.  Their job is to assess the child’s home environment, academics and psychological/emotional issues involved with the family.  Again, the fact that the parents are or were married gives the court the impression that there is or was stability in the home and will use this to determine what the disposition should be if the case actually makes it to this stage.

          In domestic violence situations, an order of protection may be filed in Family Court where the parties are related by blood, consangjity or marriage or has a child in common.  However, where the parties are married and order of protection may be obtained in Supreme Court as part of a divorce action.

          Procedurally, there is no need for registering with the Putative Father Registry if you were married to the mother at the time of conception.  This registry serves the purpose of putting the non-married father (where paternity has not been established) on notice of the child being the subject of adoption, termination of parental rights and/or foster care.

         Filing any type of petition in Family Court will require a copy of the divorce judgment where the parties were married.  The court will request the status of the marriage if there is no divorce.

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

          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.

          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.

          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.