Custody

Published on: August 19, 2012

Court Looks at Jurisdictional Issue

by Stephen Bilkis

A man married a physician in June 1985 in New York. They have one child who was born on July 1990 in New York. In June 1991, the man commenced a divorce proceeding, also in New York, which was settled on the record before the trial court in July 1991.

A New York Family Lawyer said that on December 1992, the parties executed a settlement agreement, the terms of which were incorporated by reference, but not merged into, a subsequent judgment of divorce. The settlement agreement provided that it is expressly understood and agreed that so long as one of the parties is a resident of the State of New York, the Supreme Court of the State of New York shall retain personal jurisdiction of the parties, of the child, and of the case, for all purposes.

Earlier in 1992, while the divorce was pending, the woman had moved to Louisiana and had sought, unsuccessfully, to have jurisdiction over the matter transferred to that state. Pursuant to the divorce judgment, the woman was granted sole legal and physical child custody, and the man was granted specified visitation.

Published on: August 18, 2012

Father Moves to Modify Custody Arrangement

by Stephen Bilkis

The parties were married in May 1998. They have a minor child who was born in the United States in January 2003. Both parties are enlisted members of the United States Army currently on active duty at the same army base located in the Republic of Korea, where they have been stationed since September 2003. On or about October 24, 2005, the father commenced the instant divorce action. A New York Family Lawyer said prior to commencement of the divorce action, the parties executed a marital separation agreement which was negotiated and prepared by their respective Judge Advocate General (JAG) attorneys. With respect to child custody, the agreement states that the custody of the minor child shall be shared jointly. The couple agrees that although the child may reside with the wife, both parties shall exercise joint care and control of the child and both parents may visit said minor at any and all reasonable times and places. The Non-Custodial Parent will provide 72 (seventy-two) hours notice before visitation. If less than 72 (seventy-two) hours notice is provided, the Custodial Parent will permit visitation if she/he is able to reasonably accommodate such visitation. The couple represents and agrees that the welfare of the child shall be the major factor governing all aspects of child custody and visitation rights and it is further understood that nothing shall constitute an abandonment of the said child by either of the parties. The couple agrees to consult one another with regard to any and all major decisions affecting the health, education and welfare in the best interests of said child.

The wife is the Custodial Parent. The husband is the Non-Custodial Parent. The Custodial Parent agrees to consult with the Non-Custodial Parent on such matters as major medical treatments and selection of schools for the child to promote the best interests of the child. A New York Custody Lawyer said the Custodial Parent shall exercise final determination over the matters.

The separation agreement also provides that the Non-Custodial Parent shall have the privilege, during visitation periods, to take the child home or on outings and excursions and with the Custodial Parent’s prior consent, can visit the child in their home. The couple also agreed to be flexible in their visitation arrangement, to endeavor to resolve all visitation conflicts in good faith and to make all reasonable efforts to accommodate the schedule of the other parent. Moreover, failure to reach mutual accord on a requested adjustment shall not constitute justification for the Wife or Husband to delay delivery of the child beyond the above schedule. With regard to potential visitation disputes, the couple reserved the right to petition a court of competent jurisdiction to resolve the issue with the goal of maximizing the time with both parents in order to carry out the intent of equal shared child custody; provided, however, that no modification will be implemented unless both parties agree or a court of competent jurisdiction so orders.

Published on: August 14, 2012

Court Decides Issues Need to be Bifurcated

by Stephen Bilkis

This is a divorce proceeding being held in front of the Supreme Court of the State of New York located in Westchester County. The defendant in the matter is Thomas Hannigan and the plaintiff in the case is Barbara Hannigan.

Case Background

A New York Family Lawyer said the plaintiff and the defendant are respectively 44 and 43 years old and have three children together. The children are 18, 13, and 11 years old. The couple was married on the fifteenth of June, 1985. The plaintiffs have begun this matrimonial action on the 20th of June, 2005. The main issue in this dispute is how the marital property of the couple is going to be distributed. The marital property includes a substantial amount of real property that they own as tenants by the entirety, the money that is located in a bank account that is only in the name of the plaintiff, and the value of the business owned by the defendant and the value of the plaintiff’s nursing degree and nursing license.

Published on: August 10, 2012

Parent Requests to Take Child Out of State

by Stephen Bilkis

The problems that arise when a family is divorced are endless. Not only do the parents separate and create new homes, but the children have to divide their time between two parents. When a divorce is finalized, a visitation schedule is created. A New York Family Lawyer said parents are required to create a visitation schedule and the courts ensure that the parents remain in compliance with the orders of the court. However, life is rarely a stagnant existence. Changes occur in every person’s life that can affect the application of a visitation schedule.

One of the most common changes to affect a parent’s life involves having to move to another state. Whether a person has to relocate for business, or personal reasons, if that person is divorced with children, the visitation schedule will have to be reviewed by the court. In fact, if the parent who is moving to another state is the primary custodial parent, it can even affect the move. A primary custodial parent must apply to the state of New York family court for permission to move with the child. The courts of New York strive to ensure that the best interests of the child or children is the most important issue that must be addressed.

When the non-custodial parent objects to the move, things can get even more complex. In one case that was heard before the New York State Supreme Court of Nassau County on October 26, 1998, a mother was transferred to a different state and applied to the court for permission to take her child with her. A New York Custody Lawyer said her ex-husband objected and countered the motion with one of his own. His motion was to have primary custody of the child transferred to him and a new visitation arrangement drawn up so that the mother could have limited visitation. On January 29, 1998, the mother’s request to move with the child to the state of Florida was denied. The mother had to fight for ten months to have her case heard on appeal. Ten months is a very long time when your job and your ability to keep your child is at stake. Finally in October, the Supreme Court of Nassau County prepared to hear her appeal of the trial court’s decision to deny her request to move with the child to Florida.

Published on: August 7, 2012

For Custody, Court Looks at Welfare of Children First

by Stephen Bilkis

Jurisdiction is an important issue in child custody hearings. Often the parents of the child live in different court jurisdictions, or even different states. The courts must work with the parents to determine which court system will have jurisdiction over the matters that are involved in each case. In one Suffolk County case, the parents’ divorce was finalized in the Nassau County Family Court in 2002. A New York Family Lawyer said the following that action, the mother was granted primary custody of the child of the union. She relocated to Suffolk County.

Since the time that the divorce was finalized and the mother moved to Suffolk County, the Suffolk County Family Court has handled at least one motion to adjust the visitation schedule that the couple had in place to manage the visitation of the child. In 2008, the father of the child made a motion to the Nassau County Family Court to change primary custody over to him. The mother filed a cross-motion to deny the father’s motion and to have all jurisdiction over future motions transferred to the Suffolk County Family Court. A New York Custody Lawyer said the mother maintains that the father has moved to Suffolk County in the years since the divorce was finalized. That means that at the time of this particular motion, the mother, father, and the child are all living in Suffolk County and no one is living in Nassau County.

The Supreme Court reviewed the motions and determined that the proper venue of any motions in this case would be the Suffolk County Family Court. They contend that since all concerned parties are living in Suffolk County, it only makes sense that the court system to handle their case should also be Suffolk County. The court also appointed a Law Guardian for the child.

Published on: August 5, 2012

A Child’s Relationship with Both Parents Important in Custody Issues

by Stephen Bilkis

Whenever a couple faces a divorce, they must also face custody decisions that involve the children of the marriage. A New York Family Lawyer said the love that a parent has for their child is the greatest love that exists on this planet. To require that the time that they spend with that child be split with another person is heart wrenching. This is especially true if the child is very small. It is not natural for a parent to spend time away from their child. Emotions run high and people who at one time loved one another enough to create a child, become mortal enemies in the quest to have all of the time that they can get with that child. Child custody disputes change people forever.

The court system of New York recognizes this problem. They strive to ensure that the welfare and security of the child is the most important consideration. The court appoints an attorney for the child or children that serves as a buffer for the children and the court. This attorney listens to the child and addresses his or her concerns during the custody hearing. It is the objective of the court to ensure that the children are considered. If the parent that the child is spending most of the time with is not given primary custody, it can have devastating effects on the psyche of the child. Toward this goal, the court strives to create an environment where the child’s life and lifestyle is altered as little as possible by the decision of their parents to obtain a divorce.

The court system also strives to ensure that the child is encouraged to maintain a nurturing relationship with the non-custodial parent as well. A New York Custody Lawyer studies in recent years have demonstrated that children who are not allowed to foster a nurturing relationship with both parents whether divorced or not, do not have the benefits that are afforded to other children. When one parent is so bitter toward the other parent that they wage war on them through the children, the courts of New York will step in to remove custody from that parent. In the courts of New York, the custodial parent is entrusted with the difficult task of acting like an adult when it comes to handling the relationships of the child and the other parent. It is a sorry affair when a parent attempts to turn the child against the other parent in a divorce. A divorce is an action that is taken by the parents usually based only on the relationship that the parents have with each other.

Published on: August 2, 2012

The Administration for Children’s Services (ACS) filed an abuse petition

by Stephen Bilkis

The Administration for Children’s Services (ACS) filed an abuse petition, pursuant to Family Court Act against the respondent mother and the person legally responsible for the subject children, respondent R., with regard to the children of the respondent mother.

A New York Family Lawyer said ACS alleged in their petition that a fifteen-month-old child was in the care and custody of respondent R. and that the toddler was returned to the respondent mother with two black eyes and swelling to his forehead. It was alleged that the toddler and his eleven-year-old sibling left Brooklyn with respondent R. to go to his home in New Jersey for the weekend. Later that same day, the younger child was brought to the hospital and was pronounced dead on arrival. Significantly, despite her brother and sister accompanying her to New Jersey when she learned of her child’s death, respondent mother chose to spend the night with respondent R. in his home, with eleven-year-old Sheila who was present at the time of Angel’s death, knowing R. was a suspect for the homicide of her son that day.

ACS further alleged that despite knowing of these injuries and even documenting these injuries with a camera on her cell phone, the respondent mother failed to seek any medical attention. A New York Custody Lawyer said the ACS effectuated an emergency removal of the surviving children upon the death of the toddler. Subsequently, respondent mother gave birth to another baby. ACS sought for the child’s custody. A New York Custody Lawyer said the Court determined that the temporary removal of the infant was necessary to avoid imminent risk to this child’s life and health.

Published on: July 31, 2012

The Administration for Children’s Services (ACS) filed an abuse petition

by Stephen Bilkis

The Administration for Children’s Services (ACS) filed an abuse petition, pursuant to Family Court Act against the respondent mother and the person legally responsible for the subject children, respondent R., with regard to the children of the respondent mother.

A New York Family Lawyer said that ACS alleged in their petition that a fifteen-month-old child was in the care and custody of respondent R. and that the toddler was returned to the respondent mother with two black eyes and swelling to his forehead. It was alleged that the toddler and his eleven-year-old sibling left Brooklyn with respondent R. to go to his home in New Jersey for the weekend. Later that same day, the younger child was brought to the hospital and was pronounced dead on arrival.

Significantly, a New York Custody Lawyer said that despite her brother and sister accompanying her to New Jersey when she learned of her child’s death, respondent mother chose to spend the night with respondent R. in his home, with eleven-year-old Sheila who was present at the time of Angel’s death, knowing R. was a suspect for the homicide of her son that day.

Published on: July 25, 2012

Father Petitions Court to Take Child Out of the Country

by Stephen Bilkis

When child custody issues involve a parent who is not native to the United States, the court is forced to deal with additional issues that are not common among domestic cases. Many countries do not respect divorce proceeding rulings from outside of their borders. A New York Custody Lawyer said that means that it is unfortunately fairly common for one parent to abscond with a child to a different country. It becomes very difficult for the other parent to regain visitation with that child when they have been taken overseas. In order to prevent this type of parental abduction, courts work to create reciprocal agreements with other countries. However, not all countries are willing to comply.

Patriarchal countries are often non- compliant when faced with the concept that the mother of a child has a right to the child against the will of the father. In cases of that nature, it can become almost impossible for the mother to obtain the child. For this reason, some mothers will actively take steps to prevent a father from a patriarchal country from removing the child from the United States. In one case of this type, the mother refused repeatedly to obtain a passport for her minor child to accompany her father outside of the United States. A New York Family Lawyer said the father made an application to the court to have the mother obtain a passport for the child and to enable him to take the child back to his homeland to meet his family overseas. There is no other implication that the father might be a threat to abscond with the child.

However, it is important to ask why the mother was resistant to the notion of the father taking the child overseas. The mother is more familiar with the ability of the father to abscond with the child than the court is. A Nassau County Family Lawyer said he must assume that she presented more evidence about her concern for allowing the father to take the child overseas than is recorded in the documents of the case. However, one must also assume that the court heard both sides of the argument and was able to review the risk involved that the father will not return to the jurisdiction with the child.

Published on: July 22, 2012

Court Considers Special Needs of Infant in Custody Battle

by Stephen Bilkis

The New York child custody laws are designed to ensure that the rights of the children are protected as related to visitation and custody. In general, a parent is not restricted from visitation with their children as long as they have not harmed the children or have been found to be an unfit parent based on some other action or neglect on their part. Even in most cases of child neglect, the court will typically encourage visitation between the children and the parents so that a positive relationship can be fostered between them.

When a divorce decree determines which parent that a child will reside with most of the time, they take into account many different factors. Among these factors, are how old the child is and the relationship that the child has with each parent. Historically, a very young child has been determined to be better off with its mother. However, in some cases, where the mother has been determined to be unfit, even a very young baby may be given over to the custody of its father to receive better care. The court makes these determinations based upon what is best for the child and not necessarily what is best for the parents. A New York Family Lawyer said the court places the needs of the child paramount to the needs of the parent. In one case, a father was granted full custody of a very small baby in the course of a divorce decree. The mother appealed the custody appointment because she was a fit mother and there was no legal reason to prevent her from being with her baby.

The courts reviewed the case and discovered that she was correct. It is not clear what the circumstances were that caused the initial trial court to find that the infant would be better off with her father, but the Supreme Court determined that the original trial court was in error. There was no evidence presented that demonstrated that the mother was unfit to handle the role of parenthood. Further, it is usually important to keep a mother and very young infant together for the welfare of the infant. An NYC Family Lawyer said the original trial court was from a foreign court and the Supreme Court who overturned the verdict determined that they had erred in their judgment of the situation. A child of tender years needs to be with its mother.