Divorce

Published on: July 30, 2012

Court Decides Custody in Light of Abuse Allegations

by Stephen Bilkis

Child visitation issues in divorce actions are reliant upon the agreement of the parents, cooperation from the children, and decisions of the courts. A New York Family Lawyer said the court of New York strives to enhance the relationships of the children with their parents. However, it is not always possible for everyone involved in the situation to continue to foster a positive relationship with each other.

Many factors affect the outcome of custody decisions in the courts of New York. When a custody issue is shadowed by domestic violence, it can be even more difficult to ensure that the children continue to have a good relationship with both of their parents. When domestic violence issues are involved, the rights of the parents to have visitation with the children becomes secondary to what the court determines is in the best interest of the child. If the child would be endangered by contact with the abusive parent, then any positive benefits from visitation would be countered by the negative effects of the contact with the abuser.

This is especially true when the courts have ordered that the abuser is prevented from contacting the child or the other parent because of a protective order issued by the court. When the court determines that a protective order is necessary to protect the family members, it changes all of the rules. A New York Criminal Lawyer said protective orders are necessary to ensure the safety of family members when one or more of the parents have been charged with offenses related to domestic violence. Offenses that are included in most domestic violence laws include but in most cases are not limited to offenses related to physical assaults, such as simple assault, aggravated assault, and assaults against minors or the elderly. They include offenses related to battery, such as simple battery, aggravated battery, and battery against minors or the elderly. Some states have laws against criminal trespass that include property damage that is less than $500 in value, or going onto a property without the consent of the owner or remaining on a property without the consent of the owner. There are numerous other offenses that relate to domestic violence such as stalking, aggravated stalking, harassment, harassing phone calls, and other offenses that are used in domestic situations to instill fear in the other members of the family.

Published on: July 29, 2012

Family Court Decides Jurisdiction Issue

by Stephen Bilkis

Child custody and visitation issues in divorce actions are traumatic events in the lives of the parents and the children who are affected by the court’s decisions. Many people panic when they file for divorce and fear the loss of custody of their children. When parents panic and make bad decisions as they relate to custody issues, they can adversely affect the outcome of their custody dispute. A New York Family Lawyer said that rather than panic and remove the children from the state, it is always better to discuss your options with a qualified attorney who can fight for your rights legally. When parents abduct their children to avoid losing custody of them, they just about guarantee that they will lose custody of the child.

In June of 1979, a New York woman panicked during a divorce action and absconded with her son to Arizona. The lived in hiding in Arizona until they were discovered in 1981 and the child was returned to New York and placed in the sole custody of his father. At that point, the father filed a petition to have sole custody of the child and restrict any visitation that the mother would have no visitation with the child because he fears that she will attempt to kidnap the boy again. The court Special Term declined to modify the judgment of divorce to prevent the mother from visiting with the boy. A Nassau County Family Lawyer said the father made a motion to the Supreme Court to modify the decree. The mother countered that motion with her own motion to prevent a modification of the decree.

The court discovered that the mother had filed a motion with the Family court in Arizona. The first decision that became necessary was which court would have jurisdiction over the dispute. The New York Family Court had first declined to make any modification to the motion for a divorce decree because they felt that Arizona should have the jurisdiction over the custody dispute and that New York would be an inconvenient location to try the case. The Supreme Court disagreed. They contend that it was inappropriate for the New York Family Court to deny hearing the case and modifying the divorce decree. The original documents had been prepared in New York. New York was the registered home state of the child. The child had only been removed from New York during an illegal action. Therefore, Arizona courts should never have had any type of jurisdiction over the case at all.

Published on: July 27, 2012

Father Contends Child Support Not Being Used for Child

by Stephen Bilkis

New York Family Court can become creative when it must deal with diverse personalities in divorce decrees. This is especially true when the divorce decree includes a custody issue with the parents of minor children. There are almost as many options for customizing custody decrees as there are people who must be governed by them.

A New York Family Lawyer said sometimes, parents are not happy with the choices that the courts make for them in regard to the custody arrangement prepared by the courts. When that happens, one or both of the parents can become belligerent about the inaction of the orders. It becomes the court’s duty to enforce the decree and the custody orders that are attached to it. When one or both of the parents of a minor child do not comply with the court orders, the courts will issue penalties that can be quite harsh.

In one case from New York, a mother was not being compliant about allowing her ex-husband the visitation that the court had ordered for him. After she failed to present the child for visitation on several occasions, the court ordered that she would have to deal with the consequences. The court ordered that one half of her child support payments from her ex-husband would have to go into an escrow account with her attorney. A Nassau County Family Lawyer said that money would then be used solely for the purpose of enhancing the relationship between the father and the child. In order for her to obtain funds from that escrow account, she would have to present an accounting to the court.

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.

Published on: July 21, 2012

Court Discusses Custody Decision

by Stephen Bilkis

In order for a court to modify any order previously enacted by that court or another, the petitioner/complainant is responsible to demonstrate that there has been a significant change in circumstances that would warrant the court to take action to modify the agreement. A significant change is something more than just a desire to change the circumstances of the decree. For instance, if a custodial parent is arrested, it may be important to modify the elements of the decree to change the primary custody location to the non-custodial parent who is not incarcerated.

A New York Family Lawyer said there are many situations that can provoke a change in the circumstances enough to warrant a finding to change the decree. The most common changes are those in residences. When two parents share custody of a child and they both reside in close proximity, things usually go fairly smoothly. However, if one of those parents move to a different state, the other parent is likely to file for a change in the original decree based on a significant change in circumstances. Sharing custody of a child locally is easy. Sharing custody of a child from different states can often pose a financial hardship to the parents involved in a significant manner. It then falls to the court to determine what if any changes need to be made to the original divorce decree to accommodate the changes in life situations.

When a custodial parent loses a job and source of income so that they are unable or unwilling to support the child on their own, the family may resort to a change in the custody arrangement through the court system in order for the child to reside with the parent who is most capable of caring for them. Severe illness of one parent can also be taken into consideration as a change of situation significant enough to cause the court to act on changing the original court ordered decree.

Published on: July 20, 2012

visitation

by Stephen Bilkis

Divorce creates many situations within a family that cause difficulties. In New York, the goal of the court system is to ensure that the children do not suffer because of the conflict between the parents. A New York Family Lawyer said no matter how much a court system may attempt to ensure that the children do not suffer from the stresses of the parents, it is impossible to achieve this goal entirely. In many cases, the parents do not stay in New York and one may move to a different jurisdiction. When this happens, the parents along with the court must decide if they are in a position to continue to handle the court issues of visitation and support through the New York court system.

One case from 1999, concerned the ongoing issues of a family going back more than ten years before the case was discussed in New York Family Court. The couple were married in Buffalo, New York on June 21, 1987. In 1988 and 1990, they brought two children into their marriage. The couple resided in New York City and Long Island while they both attended college. Toward the end of their marriage, they moved to Hamilton, Massachusetts. They were separated on December 21, 1993, and divorced in 1995. The couple agreed that the children would live with their mother in the family home in Massachusetts and the father moved to a townhouse near the home. In 1995, the mother moved to Buffalo, New York with the two children. The couple agreed that the Massachusetts Family Court would continue to have jurisdiction over the divorce decree and the continuing issues of visitation and support with the children. However, as both parents moved on with new families of their own, additional issues have arisen.

The final divorce decree created in Massachusetts allowed that the children were the full custody of the mother with the father being allowed liberal visitation. However, the father remarried and began a new life with his new wife and stepdaughter in Ipswich, Massachusetts. The mother met a man in New York and later moved with him and the two children from her previous marriage to Oregon. The father at that time filed for the children to rejoin him in Massachusetts. The issue of the court became a situation in which the father stated that he was being expected to spend too much money visiting the children in Oregon, or having the children flown out to visit him in Massachusetts. A Queens Family Lawyer said the case was brought before the New York Family Court in which they agreed with the father and ordered that the child support payments that the father was ordered by the Massachusetts Court to make, should be put into a separate banking account and used to pay for the expenses of visitation and plane fare. The mother filed an appeal.

Published on: June 28, 2012

Court Discusses the Rights of a Non-Marital Parent

by Stephen Bilkis

On October 15, 1999, a child was born between the petitioner mother and respondent father. The respondent father acknowledged his paternity and his name was placed on child’s birth certificate. A New York Family Lawyer said the respondent visited regularly and contributed to the child’s support for 18 months. However, the parties never married or lived together because respondent has a family of his own. Accordingly, in the spring 2001, the parties’ relationship ended, although respondent continued to call the petitioner to discuss the child during the months that followed. During the years that follow, respondent father did not visit nor give support to the child.

The mother then met and married her current husband. The mother moved out of her apartment but submitted a change of address notification form to the United States Post Office. She changed her home telephone number but kept the same cell phone number, the same job, the same work address and the same telephone number at work. The mother notified her landlord about her move.

Thereafter, the respondent father received a notice from the petitioner mother’s intent for stepparent adoption. Respondent father filed a petition seeking visitation rights and opposed the adoption. In his petition, respondent alleged that he did everything for the child. On 2006, the petitioner mother and her husband filed a stepparent adoption.

Published on: June 27, 2012

Court Decides Child Custody Arrangement

by Stephen Bilkis

The Domestic Relations Law sec. 240(1) provides that the trial court’s award of child custody must be made as justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child, noting that in all cases there shall be no prima facie right to the custody of the child in either parent. However, a New York Family Lawyer said an appellate court would be seriously remiss if it allowed a custody determination to stand where it lacked a sound and substantial basis in the record and, indeed, was contrary to the weight of the credible evidence.

The plaintiff wife and defendant husband were married in 1974 while attending nursing school and medical school, respectively. During their marriage, they had twin daughters whose custody has been the subject of this action. The record established that in 1982, the husband established his private practice in pediatrics and his income grew steadily thereafter. The wife in 1983 became a nurse investigator for a law firm which entails more flexible hours.

During the trial, the court requested psychiatric evaluation of all family members, as well as the evaluation by the Nassau County Probation Department. A New York Criminal Lawyer said the evaluation specifically recommended that the wife be granted custody of children. However, the Supreme Court awarded the twin daughter’s custody to the defendant husband. The Court concluded that the wife has been more or less a ‘remote control’ mother, having an interest in her children’s welfare, but leaving the actual rearing, at this point in their lives, to the father and a housekeeper. The Supreme Court based its findings with the record that reveals that the wife’s hours spent in pursuit of a career outside the home are decidedly fewer and more flexible than those spent by the husband.

Published on: June 26, 2012

Ex-Wife Seeks to Relocate Children to Different State

by Stephen Bilkis

On this proceeding, a husband filed an appeal from an order of the court upon a motion by the wife for permission to relocate with the child to the State of Virginia and his motion to enjoin her relocation and to change custody, however, denied his application for an in-camera interview between the court and the child. A New York Family Lawyer said the man also appealed from the orders of the same court which denied his motion to enjoin the former wife from relocating with the child and for the transfer of child custody to him. He also appealed for the granted motion of the court for his wife for permission to relocate and the awarded custody of the child to the mother and from the awarded counsel fees and expenses to the wife.

The parties were married and filed for their divorced. They had one son and their separation agreement provided for joint custody with each having physical custody of the child during alternating weeks, until the child’s fifth birthday or until he enters kindergarten. Thereafter and for the next three years, the mother was to have weekday custody of the child during the school year and the father was to have custody every weekend. A Nassau County Family Lawyer said that after the child’s eighth birthday or when he entered the third grade, the custody arrangement would be reversed in which the father would have weekday custody during the school year and the mother having custody on the weekends. During the summers, the parent with weekday custody would have custody on the weekends and vice versa.

Moreover, the separation agreement also provided that in the event that such a move becomes necessary, either parent shall have the absolute right to relocate out of New York State to another geographical area, including, but not limited to Boston or Washington, so long as the new residence of that parent is within a one hour direct flight time to or from New York, exclusive of ground travel, plus one hour of ground travel to or from each airport and the residence of each parent, without causing a modification of the custody provisions.