There is usually some hidden agenda in publishing most of these studies/surveys, hence the disparity in the results.   In addition, many of these reports have an interest in disseminating information that promotes their own platform.  My aim here is to highlight how New York laws, courts, law enforcement and social agencies differs in their message by how they favor either a married couple or a cohabitating one.  Let’s take a look at the laws that apply to couples, to keep it simple I will focus on heterosexual couples.  Both childless couples and couples with children, are subject to laws pertaining housing, criminal, family law, elder and consumer law on the state level, there are federal laws that broaden the areas of law to immigration, bankruptcy and tax law.  The manner in which these laws affect couples differ depending on their marital status, which includes divorce but we will not spend too much time on that category.

     Criminal laws like domestic violence, fraud, sexual assault and harassment vary in their application based on the marital status of the parties.  In New York, domestic violence infractions, which include harassment, menacing, assault/battery and contempt, in substance may be brought against parties whether married or not.  However, the penalties for these crimes vary depending on their status.   For instance, if there is a final Order of Protection issues at the disposition of the criminal case, there may be stipulations or conditions included which take into account the fact that the parties are married.  Restrictions, which are typically more broad when the parties are married, may permit contact between the parties in very specific circumstances while cohabiting parties may not be given such consideration.  In fact, if a Family Court Order of Protection arose out of the domestic violence incident, up until recently cohabitating parties were prohibited from obtaining such Order if they did not have a child in common.

     In family law matters, such as child support, child custody or child visitation, being married versus merely cohabitating also results in varying treatment.  For the most part, family law issues are dealt with in Supreme Court (only if the parties are divorcing or were recently divorced) or in Family Court (although married parties may have their family law case heard here, cohabitating parties must have their case heard in this venue).   Let’s take child support, if the parties are married and the child is born while the parties are married, there is a presumption that the child is of the marriage and therefore the financial responsibility of the married parties.  Conversely, there is no such presumption where the parties merely cohabitate, the custodial parent has the burden of proving paternity (unless there is a valid acknowledgement of paternity).  In child custody cases, although there is no explicit difference in how the courts treat parties that are married as opposed to those cohabitating, some judges, attorneys and forensic experts, will give much more careful scrutiny to both parties when the family is more intact, and hence married.  Specifically, the judge may consider the fact that both parents may intend to stick around for the long haul when they are married, and therefore factor the impact of having two active or present parents in making the child custody determination.  A cohabitating parent may not get such significant consideration, with the assumption being that since he or she made no commitment that their future intentions are more elusive.  This is typically the same thinking with regards to child visitation, with a much more profound difference being in a situation where the non-custodial parent is the party that is married as opposed to cohabitating.  In that case, the court will most definitely weigh the fact that the non-custodial parent is married, giving less weight to him or her if they are cohabitating. 

   Wills, power of attorney or deeds also differ in effect when the parties are married.  These documents, in New York, are developed separately and specifically with regards to parties’ marital status.  The inchaote rights, tax implications and possessory interests under each of these legal documents will differ based on if the parties are married at the time of their drafting. 

     Although it may be legally beneficial for some to marry, for others cohabitating is preferred as a matter of economic convenience.

Feel free to contact my office for a free telephone consultation.

All fifty states have adopted the International Child Custody Jurisdiction Enforcement Act, and some including New York has adopted the revised Uniform Child Custody Jurisdiction Enforcement Act, (”UCCJEA“) in 1999.  This Act makes the initial state or the child’s “home state” or “residing state” the state that has initial and exclusive jurisdiction to determine child custody, even in international cases.

The International Parental Kidnapping Crime Act (”IPKCA“), makes it a crime for the removal or retention of a child from the U.S. with intent to obstruct lawful exercise of parental rights.  While the Parental Kidnapping Prevention Act (”PKPA“) states that other states are to give “full faith and credit” to the initial state’s child custody order and thus they are to enforce and not to modify that state’s order.  The difference is that the PKPA does not apply to international child custody cases.

The Hague Convention on the Civil Aspects of International Child Abduction (”Hague Abduction Convention“), adopted by member countries, offers an expeditious remedy of return of the child to the country of habitual residence so that authorities in that State may adjudicate the custody dispute between the parties.  International Child Abduction Remedies Act (”ICARA“) is the statute that implements the Convention, allowing a Hague case to be brought in the state or federal court where the child is located.  Unlike the other statutes, the Hague does not provide for jurisdiction to hear custody matters. If return of the child to another Contracting State is not required by the Hague, then power to hear custody case will be determined under that state’s own jurisdictional rules. As of May 2007, the Hague Convention is in effect between the United States and: Argentina, Australia, Austria, Bahamas, Belgium, Belize, Bosnia & Herzegovina, Brazil, Bulgaria, Burkino Faso, Canada, Chile, China (Hong Kong Special Admin. Region 1) Macau, Colombia, Croatia, Czech Republic, Cyprus, Denmark. Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Former Yugoslav Republic Of Macedonia, Malta, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Peru, Poland, Portugal, Romania, Serbia, Slovak Republic, Slovenia, South Africa, Spain, St. Kitts and Nevis, Sweden, Switzerland, Turkey, United Kingdom, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, Montserrat, Uruguay, Venezuela, Yugoslavia, and the Federal Republic of Zimbabwe.  (There is currently Congressional efforts being made to get Japan to join since they are of the few countries that awards only “sole” custody and that is typically to the mother.)

So what does this all mean, in short?   If there is a child custody order issued from Supreme Court (as part of a divorce) or Family Court and the non-custodial parent kidnaps the child to another state then the UCCJA and the PKPA may both apply.  The UCCJA is superseded by the PKPA in some instances, i.e. where “emergency” situations exist which requires the state where the child is currently located to exercise jurisdiction in some instances.  Conversely, there are cases where the UCCJA applies and the PKPA does not, where the child custody order was issued by a foreign country.  If there was no child custody order issued by any state  then the PKPA is invoked and states that only the “home state” has jurisdiction. Or if there is a child custody case pending in another state, the court in the current state cannot have jurisdiction unless the initial court stays the proceedings, declines or in some way stops exercising jurisdiction.   However, if there is a child custody order the PKPA may still apply, the difference is that under the PKPA  international orders, orders that are not actually custody orders, and orders that are invalid under the PKPA’s own set of rules do not have to be enforced under the PKPA. Neither of these statutes actually give any court to determine custody, procedurally or substantively.  The Hague would only be invoked when the abduction is to another country, whether or not there is a child custody order.  The Hague applies even the parent that did the abducting has an order for custody from the new country.

In New York, one would petition the Family Court for enforcement or modification of a child custody order under the UCCJA based on it being the child’s “home state” or based on temporary or “emergency”jurisdiction.  A case under Hague would require a petition be filed in federal court.

A full analysis of the international, national and state laws with regards to child custody, abduction and/or kidnapping requires a lengthy discussion.  If you need additional information please feel free to contact my office directly.

     New York the agency responsible for collection of child support, the Office of Temporary and Disability Assistance, Division of Child Support Enforcement in conjuntion with the Child Support Enforcement Unit, have authority to implement administrative proceedings to collect outstanding child support and arrears.  This means that these agencies can go after the child support obligor without going to court.  These actions include:

When the agency is not successful in obtaining the arrears then they can actually file a violation petition to the court and seek an order of enforcement.  If the court renders such an order, then mandatory money judgments for past-due payments can be imposed; the noncustodial parent can be directed to enter into a work program; a hearing may take place to suspend state issued professional, business or occupational licenses; or the child support obligor can be sentenced to probation or even jail.

     However, federal law states that “a passport, except for direct return to the United States, shall not be issued in any case in which the Secretary of State determines or is informed by competent authority that the applicant has been certified by the Secretary of Health and Human Services…to be in arrears of child support in an amount exceeding $2,500.oo”. Another provision further states that the Secretary of State “may revoke, restrict, or limit a passport issued previously to such individual.”  So anyone with arrears in an amount more than $2,500.00 will not be eligible to receive or renew a U.S. passport and can only change eligibility once the arrears balance is paid down, at least to an amount under $2,500.00, or has made acceptable arrangements to pay.  Previously, the amount was $5,000.00 but that was changed as of October 2006. 

     New York, as does every other state, is required to notify the Department of Health and Human Services of those child support obligors who have an arrears balance of $2,500 or more.  So once an individual applies for a passport, Passport Services will screen them by checking the list to see if they are in fact in arrears.  If the individidual is denied they will be notified by mail.  If payment is made or acceptable payment arrangements are made, either before or during that time, then the individual should wait at least four (4) weeks to allow the system to be updated.  Furthermore, it is always wise to check with the agency to determine if the entire balance of arrears should be paid and/or if payment arrangements will suffice because there is always the potential for arbitrary application of the procedural rules.

Feel free to contact me for a free phone or email consultation.

It’s been a long hiatus for my blog entries due to a series of life events that kept me occupied and unable to make new entries.  However, that’s over and I have exciting information, updates and changes that I want to share with you all and look forward to reconnecting.  There has been a plethora of topics flooding the media, legal issues that have become more rampant and changes that affect the outcome of pending and future legal cases.  My focus is to keep my readers informed by making frequent entries and providing that forum to discuss many of these topics.

Stay tuned and informed by visiting frequently.

Tracey A. Bloodsaw, Esq.

          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.

                  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.

         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.