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.

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

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

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

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

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

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

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

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

          Last week I started a discussion about the implications of court-ordered child visitation. My initial entry layed out different situations that constituted violation of child visitation orders.  Although the custodial parent may think what they are doing is rationale, justified and even something within their right, in these particular instances they are violating a judge’s directive.

          This week I will go through each of the scenarios and discuss how the court would probably handle the violating parent and attempt to restore “fairness” or grant redress for the noncustodial parent.  I say “attempt” because in most instances, there is no way to make up for missed time, opportunites to bond or chances to re-store stability between the child and his/her noncustodial parent once any or a combinations of these events occur.

Here are the scenarios and the court’s likely responses:

Scenario 1:  There is a temporary order of visitation that directs the custodial parent to allow the child to telephone his/her noncustodial parent at 6PM Monday thru Friday and that that parent should leave the child alone while talking to the other parent so that the child is the one to decide when to end the conversation.  The custodial parent remains in the room while the child makes the call and influences the child to end the conversation after a few minutes. 

Court’s Response:  Typically, the court would not see this as a grave defiance of its order since the child is actually still having some contact with the other parent.  The court may admonish the custodial parent, at times repeatedly, to allow the child to be alone while talking to the other parent.  But this is hardly the basis for the more extreme forms of punishment.  Since it is a temporary order, however, it does permit the court to get an immediate sense of how the custodial parent will behave in the future. 

Scenario 2:  There is a final order of visitation that orders the custodial parent to not be present when the noncustodial parent comes to pick up the child, that either another family member is to bring the child out to that parent or the child (who is old enough) walks out to the other parent alone, while the custodial watches from the door.  The custodial parent continuously brings the child out to the other parent when there is someone else at home to do it. 

Court’s Response:  Although this is not an extreme defiance of the court’s order, it still warrants a little more than an admonishment by the judge.  When the visitation order specifies that the custodial parent is not to be present, it is more often based on concerns raised by the noncustodial parent or his/her attorney.  These concerns may include the emotional impact on the child because of attachment issues, the safety concern of all or one of the parties because of conflict between the parents or merely to facilitate an easier transition.  Thus, continued violation of this particular order may raise other issues regarding the custodial parent’s real interest and ultimate ability to co-parent. 

Scenario 3:  There is an order of visitation that directs that the child and the noncustodial parent engages in therapeutic visitation at the psychologist’s office once a week.  The custodial parent neglects to bring the child to the scheduled appointments and misses several appointments. 

Court’s Response:  Now this sort of situation is teetering on the edge of being grossly violative.  In this scenario the visits are not taking place and that is a serious problem.  Initially the court will give a firm warning.  However, once those warnings are ignored then there are contempt sanctions that can be and will probably be imposed. The noncustodial parent may face monetary fines, costs (i.e. attorneys’ fees), community service, even incarceration.  Unfortunately, in this case there is an apparent issue with the relationship between child and noncustodial parent, hence the need for therapeutic visits, because otherwise there would be a real threat of change of child custody.   

Scenario 4: There is a temporary order of visitation that states that both parents are to pay 50% each of the costs to have an agency conduct supervised visitation between the child and the noncustodial parent.  The custodial parent refuses to pay his/her share and the agency refuses to monitor any further visits. 

Court’s Response: When only a temporary order is in place it keeps the case on the court’s calendar longer because the visits are not going smoothly, which ultimately defies the objective to increase time between child and noncustodial parent.  The visits should not not occur because of the custodial parent’s failure to pay nor should the progression of the visits be stalled because of this.  So the noncustodial parent can either pay the custodial parent’s share (and seek reimbursement or adjustment) or the court can change visits from supervised to unsupervised day visits. 

Scenario 5: There is an order that the custodial parent is to provide the noncustodial parent with medical information and/or devices for each visit.  The child requires very specific medical attention or treatment and is subject to emergency medical care when he/she does not get such treatment.  The custodial parent intentionally fails to provide the necessary information or device to the noncustodial parent which disrupts the visits by trips to the emergency room. 

Court’s Response:  Here again is another situation where the custodial parent’s ability to parent is called into question.  Depending on what the substance of the information is or the medical treatment required, the willful lack of communication can be a profound threat to the child’s safety.  The court, with a focus on the child’s best interest, will certainly threaten to report or will report, the custodial parent to Child Protective Services as a result of such antics. 

Scenario 6: There is a final order of visitation which includes weekly visits here in New York and the custodial parent relocates to California without the noncustodial parent’s consent or the court’s approval.  The custodial parent does not send the child or bring the child to New York for the weekly visits (it is too costly) so the noncustodial parent can not see the child unless he/she goes to

 Court’s Response:  Here is probably the most egregious forms of violation.  This constitutes a deliberate act of interference with the contact between child and the noncustodial.  Ordering a change of custody is a very likely reaction by the court in this scenario.  However, if the noncustodial is not in the position to assume custody then the court may have the custodial parent pay all travel costs for visits to New York, grant extended visits during vacations and holidays and may even adjust child support in favor of the noncustodial parent.  None of these measures are mutually exlusive with the court’s authority to impose contempt charges, including the most extreme ones. 

Scenario 7: There is a temporary order of visitation granting the noncustodial parent alternate weekend visits and the custodial parent refuses to either make him/herself available for the transfer or bring the children to that parent for the visits. 

Court’s Response:  This, like scenario 6, is one of the most egregious.  However, one difference here is that the order is temporary, which means that the case is still before the court.  The visits are not occurring because of deliberate acts of the custodial parent and this is an explicit violation.  Therefore all of the measures applicable there are certainly justified here. 

Scenario 8: There is a final order of visitation permitting unsupervised and uninterrupted visits between child and noncustodial parent, which denied the custodial parent’s request for supervised visits.  The custodial parent insists that either the other parent visits with the child at his/her home or neighborhood, that he/she accompanies them on their visits, or he/she calls the child incessantly  to get a minute to minute account of where they are or what they are doing.  

Court’s Response:  The court is not inclined to do too much here but modify the order.  The modified order may be more and more specific, i.e. if and when the custodial parent can call during the visits.  This sets the custodial parent up for being subjected to a contempt of court if there is continuous violation once there is a clear violation of the specific instructions.  

Scenario 9: The temporary order of visitation clearly states that when the custodial parent picks up and drops the child off with the noncustodial parent, that his/her paramour is not to be present.  When that parent does the transfer, he/she has their significant other present more often than not. 

Court’s Response: This is another situation where the visits are actually occurring so the violation of that part of the order is not as grave as some of the others.  However, if the paramour’s presence stifles the exchange then the court may consider this a factor in the event the noncustodial parent seeks child custody. 

Scenario 10:  The final order indicates that the custodial parent must provide medical, school, daycare, extracurricular activities, etc. contact information to the noncustodial parent within a reasonable time period.  Several months have gone by and the other parent still has no idea where the child goes to daycare or who the child’s primary care physician is. 

Court’s Response:  Communication between parents, or lack thereof, is an indication of one’s ability to co-parent and thus will be given weight if the noncustodial shall petition for child custody.  However, if that parent has no interest in seeking full child custody, the custodial parent may face contempt by the court. 

          Each of these responses vary by court jurisdiction, the judge, the status of the case and the order, the particular facts of each the case, i.e. history of domestic violence, child abuse/neglect, previous violations, the impact on the child, etc. and whether the parties are pro se or represented by attorneys. The measures imposed may be exhaustive, going from the minor to the more severe in any one scenario.  The judge may start out being lenient but may become more harsh if the violations continue.  Nonetheless, the relief requested by the noncustodial must justify the violative behavior.  For instance, one should not expect that a court would impose contempt of charges and imprison the custodial parent in Scenario 1.  At the same time, however, sparing the custodial parent imprisonment may be the route the court takes, in situations like Scenario 6, when other concerns, like the children’s emotional and psychological well-being are raised.

         All of these scenarios are clear examples of interference, while some are closer to parental alienation.  Parental alienation must be handled somewhat differently by the court, the attorneys and the noncustodial parent because of its implications.  Although interference is a serious enough issue, it does not necessarily require the same efforts by the courts and the use of its resources as in parental alienation.  In either circumstance, if visits are being interrupted, delayed or restricted, the impact on the child and the noncustodial parent warrants the court taken affirmative measures to address this.

         One major issue I have in many of these cases is that the custodial parent knows more often than not, that he/she could get away with this behavior.  They typically push the limits believing  that because they are the custodial parent, they have limitless authority and the “ultimate” right to do whatever they want, including violating the court’s directives.  My challenge is helping to prepare my client, the noncustodial parent, for the most profound option, petitioning for child custody.  I know that every one of my clients is not in the position, emotionally, psychologically, financially, to take custody of their child.   However, it is somewhat defeating when we continuously go to court making the same complaints and the court only “slaps the wrist” of the custodial parent.  Furthermore, it is frustrating to know that an act that may initially appear to be “trivial” by the court, may be an indication of something much more serious.   Nevertheless I make my formal requests and I do so consistently.  

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

          I have and will continuously support the position the legislators have, that both biological parents rights to have visitation with their children is as fundamental as any of the rights bestowed upon us by the U.S. Constitution.  Unless exercising those rights would be detrimental to the child, i.e. where there is child abuse or domestic violence, thereby defying what is in the best interests of that child, visits with one’s children should not be interfered with by anyone, including the other parent.  Statistics show that children prosper a lot more when they have two nurturing parents involved their lives, as opposed to having contact with only one parent.  However, there are still an immeasurable number of petitions for child visitation and petitions for violation of visitation being filed everyday in family courts. 

          This is the first part of a two-part entry on the range of legal consequences that may be imposed by the court when a child visitation order issued by the court is consciously and deliberately violated by the custodial parent.  And although this happens more often than a layperson may imagine, there are custodial parents, from all walks of life, who blatantly disregards a court’s directive.  Their reasoning typically ranges from their insistence on getting even with the noncustodial parent, their being caught up on satisfying their own personal and selfish wants or simply their knowing that they can get away with it.

          The Family Court Act, the Domestic Relations Law and other applicable provisions clearly establishes a number of penalties that the may be imposed when  court ordered child visitation is being intentionally violated by the custodial parent.  However, in this entry I would like to address what actually constitutes a violation.  Violations are can consist of behavior from interfering with a telephone visit to outright denial of visits by relocating out of state without consent or a court order.  The visitation order can be temporary one (while the case is still pending) or final one or issued by Family Court or part of a divorce in Supreme Court.

 Here are examples of violative behavior:

          Scenario 1:  There is a temporary order of visitation that directs the custodial parent to allow the child to telephone his/her noncustodial parent at 6PM Monday thru Friday and that that parent should leave the child alone while talking to the other parent so that the child is the one to decide when to end the conversation.  The custodial parent remains in the room while the child makes the call and influences the child to end the conversation after a few minutes.

          Scenario 2:  There is a final order of visitation that orders the custodial parent to not be present when the noncustodial parent comes to pick up the child, that either another family member is to bring the child out to that parent or the child (who is old enough) walks out to the other parent alone, while the custodial watches from the door.  The custodial parent continuously brings the child out to the other parent when there is someone else at home to do it.

           Scenario 3:  There is an order of visitation that directs that the child and the noncustodial parent engages in therapeutic visitation at the psychologist’s office once a week.  The custodial parent neglects to bring the child to the scheduled appointments and misses several appointments.

          Scenario 4: There is a temporary order of visitation that states that both parents are to pay 50% each of the costs to have an agency conduct supervised visitation between the child and the noncustodial parent.  The custodial parent refuses to pay his/her share and the agency refuses to monitor any further visits.

          Scenario 5: There is an order that the custodial parent is to provide the noncustodial parent with medical information and/or devices for each visit.  The child requires very specific medical attention or treatment and is subject to emergency medical care when he/she does not get such treatment.  The custodial parent intentionally fails to provide the necessary information or device to the noncustodial parent which disrupts the visits by trips to the emergency room.

          Scenario 6: There is a final order of visitation which includes weekly visits here in New York and the custodial parent relocates to California without the noncustodial parent’s consent or the court’s approval.  The custodial parent does not send the child or bring the child to New York for the weekly visits (it is too costly) so the noncustodial parent can not see the child unless he/she goes to California.

          Scenario 7: There is a temporary order of visitation granting the noncustodial parent alternate weekend visits and the custodial parent refuses to either make him/herself available for the transfer or bring the children to that parent for the visits.

          Scenario 8: There is a final order of visitation permitting unsupervised and uninterrupted visits between child and noncustodial parent, which denied the custodial parent’s request for supervised visits.  The custodial parent insists that either the other parent visits with the child at his/her home or neighborhood, that he/she accompanies them on their visits, or he/she calls the child incessantly  to get a minute to minute account of where they are or what they are doing.

          Scenario 9: The temporary order of visitation clearly states that when the custodial parent picks up and drops the child off with the noncustodial parent, that his/her paramour is not to be present.  When that parent does the transfer, he/she has their significant other present more often than not.

          Scenario 10:  The final order indicates that the custodial parent must provide medical, school, daycare, extracurricular activities, etc. contact information to the noncustodial parent within a reasonable time period.  Several months have gone by and the other parent still has no idea where the child goes to daycare or who the child’s primary care physician is.

          These are some of the examples of outright violation of the court’s order.  In each of these scenarios either parent filed a petition for child custody, sole or joint and/or for child visitation.  As a result, the court felt that it was in the best interest to grant custody, visitation and some specific directives with either order, that either parent must abide by.  Either way, the court order must clearly delineate the conditions and directives that must be adhered to before the non-violating parent may avail him/herself of many if not all of the legal consequences.

          The list of penalties include the court allowing more visitation or access, visits going from supervised to unsupervised, the entertainment of modification petition requesting a change of custody, suspension of child support, monetary sanctions, imprisonment and attorneys’ fees.  However, the punishment typically must fit the “crime”.  So in other words, in Scenario 1, for example, the court may not necessarily entertain a change in custody because the custodial parent continuously tells the child when to hang up the phone.  The interference in the noncustodial parent’s visit must prejudice his/her significantly to warrant such a consequence and in that scenario the other parent still has some contact.  Conversely, however, a petition for a change in custody where the custodial parent willfully violates  the court order will considered as a factor when deciding what is in the child’s best interest.

          I have represented either parent or child in each of these scenarios and can discuss further what the courts do and how these are handled based on practice, procedure and the law.  Next week I will discuss the penalty likely imposed by the courts in each scenario.

          Feel free to contact my office to discuss your child visitation, child vustody or other family law matter with me.

This day is set out to spread the word about Parental Alienation.  Parents all over the country will be showing up at Family Courts at 10:00 A.M. with pictures, letters and protest in support of this very widespread and understated epidemic.  Parents are encouraged to be vociferous in telling their stories, contacting their politicians, educators, social service workers, mental health professionals and the media. 

Since I recently devoted an entire month of blog entries to this issue I will only provide tips for dealing with parental alienation here.

Tips for parents facing Parental Alienation: 

1. Try to establish a  parenting plan that sticks to a plan and minimizes stress on the child.  

2. Go to court only if reasonable resolutions are impossible with the other parent.

3. Try to deal with the child with patience, understanding and a firm hand.  Do not tolerate disrespectful behavior but do not scold the child harshly.

4. Talk with the child in an age appropriate manner, explaining the affects the changes has on everyone’s lives. 

5. Alllow the child to explore his/her imaginations, interests, ideas, etc.  Build child’s self-esteem, while teaching/learning (and having fun) is a mutual process.

6. Stay abreast of the child’s life, and staying involved in school and athletic/ hobbies/ cultural/artistic interests. Volunteer in church, school, etc.  However, be careful not to overstep or overreach. 

7. Develop support with people who can influence children’s positive recognition of who you are and what you are all experiencing.  Encourage relationship between extended family members and child.

8. Do research in effort to understand developmental stage of children and attachment needs/separation- normal anxiety issues complicates child’s approach-avoidance response to separation/attachment and independence/dependence.  Recognize and accept limitations in how relationship is expressed with limited or awkward affection and emotional withdrawal/outbursts.

9. Practice non-confrontational ways to hone in on listening skills with children and others. Practice peacemaking solutions.
10. Hold other parent accountable in consistently documenting behavior and consulting with your attorney (who should get the law guardian or attorney for the child involved).

11. Know your rights and insist that they are not violated (particularly in court).

12. Maximize use of parenting coordinator, if available by the court.  Inquire about outside agencies.  ecessary appointed by the court, with arbitration/mediation power.
13. Find a therapist familiar with PA/PAS cases and legal process and suggest to court if applicable.  Explore Individual therapy for parents to cope with learning and taking responsibility for the individual/family problems in past.
14. Maintain some sort of  independent communication if possible using cell phone, instant messaging, letters, and photographs, gifts, etc. for any occasion.
15. Never blame children.