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New York child custody, Manhattan child custody, Brooklyn child custody Lawyer
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Articles on New York Divorce Law


What Happens if I am married and have a case in Family Court?
December 10, 2018

What Happens if you have a case pending in Family Court and one in Supreme Court?

 

Married couples that have filed for relief in Family Court for a family offense, for custody visitation or support often go to Family Court as a first resort.

However, if that case leads to a divorce then one or the other of the attorneys will typically file a Supreme Court action and will have to notify the Family Court at which point the Family Court will encourage the parties to remove the Family Court cases to join in with the Supreme Court divorce case.

The attorneys do this by filing an Order to Show Cause in Supreme Court under the divorce index number asking the Supreme Court to remove and consolidate all actions under the divorce case.

These motions are typically granted for judicial economy purposes. This also benefits the litigants because now they only have to go to one court appearance per adjournment rather then to have to litigate their issues before two separate courts.  Only people who are married can file in both courts.

Unmarried parties with an intimate relationship between themselves must file in Family Court and can do so on all issues that arise other than equitable distribution of property and for a decree of Divorce.

The question often arises as to where to file an action in Family Court and Supreme Court.  In Family Court you can seek relief if the children resided in New York for a term of six months whereas in divorce actions in Supreme Court there are different residence requirements which you must meet. If you do not meet these residence durations requirements set forth in the statute then the Court has the power to dismiss your case and often times will so be sure to ask your attorney about jurisdiction.

For example, and there are several different bases for jurisdiction in Supreme Court, under the law as set forth in DRL Section 230 the husband and wife must have been residents of the State of New York at the time the action is started and the Husband or wife must have been living in New York for at least one year.   Another basis for jurisdiction which must be met before filing in Supreme Court is that the parties were married in New York and one or the other of the parties has been continuously residing in New York for a period of one year as of the date of the filing for the action for divorce.  The third basis is the cause of action occurred in New York and either of the parties was living in New York for one year and the last basis for jurisdiction is that either party has lived in New York for two years.  If you do not have jurisdiction under the above four instances then you can still file in Family Court for immediate relief so long as the children have resided in New York for at least six months and if there are no children you might still be able to file for emergency relief in Family Court.  But Family Court has its own rules and regulations as to when it is appropriate to file in family Court so you should check that before you go file any petition, especially as it pertains to custody because if you have not lived here long enough the Family court can refer you back to the State where you have lived for the longest period of time. Jurisdiction can be complicated so it is advisable to speak to a New York Divorce Lawyer before filing any petition.


 
Family Offense
December 7, 2018

Family Offense Proceedings are difficult because it means filing a petition against a family member or intimate partner when you have been the victim of a crime perpetrated against you.

The results you want to achieve from filing a Family Offense petition is an Order of Protection.  You generally go to Family Court for relief but you can also file for relief in Supreme Court if you are in the middle of a divorce case.

 There are many Order of Protection because the Court may fashion it with its own terms and conditions.

Usually you can go to family court on your own and go to the intake part and fill out a petition.  You will also be asked to fill out a vital statistics form giving the court general information such as your name, address, social security and dates of birth of all those members of the family that are involved in your case.

If you do not have a New York Family Lawyer then you can file the petition on your own with the help of a Family Court Clerk.  You will be seen by the Court immediately and will be asked to explain the circumstances as to why you need an Order of Protection.  Be sure your Family Offense Petition lists the crimes perpetrated upon you with a high level of specificity such as dates, times, injuries sustained and the nature of the offense.  If you have pictures that demonstrate the injuries bring them with you.

If the fear of harm rises to a certain level the Court will usually award your order of Protection that day and adjourn the case so you have an opportunity to serve the perpetrator.  When you come back to court be prepared to bring an Affidavit of Service proving you have served the petition and Order of Protection properly. Next, the court will generally continue the order of protection and give you a court date for a hearing and trial.

You must also realize that you can go to the police and make a police report and if the crime is serious the police will arrest the family member that poses a risk of harm to you

You can have two cases going at the same time and you can also get an Order of Protection from Criminal Court.

 

 

 


 
Can I apply for Custody?
October 29, 2018

Can I apply for child custody?

There are many things you need to know before you can apply for child custody in New York.

For one, a court must have the power to adjudicate your case. We call that “jurisdiction”.  This is a complex idea of law that involves many factors but the initial inquiry is for a judge is where the children have lived for the past six months, and whether there is a prior order of custody in place. As for the six-month rule, if there has been no prior order of any court from another State, then New York would have jurisdiction to hear your case if the children have resided in New York State for the last six months.  If the children were born in New York but are infants under the age of six then New York usually has the power to adjudicate your case.  However, if the parties have permanently moved to another state with the children then the parties can apply for custody in that state.

Custody is neutral gender, in other words, either of the parties may seek custody of their children.  Usually, the court will decide temporarily as to where the children will live until the final determination after a fact-finding hearing or trial.  Usually the lawyers will argue in court that the children should stay with the parent with whom they currently reside except for extenuating circumstances such as unfitness to parent, domestic violence or drug abuse. But a temporary Order does not necessarily mean the court will not order something else after a trial.  That is why the behavior of the litigants is crucial as the case progresses because the court will adjourn the case month to month to see how the children are faring with the parents.   The courts are people so they judge you every time you go to court and may make informal assessments as to how you are doing. One of the things a court looks at is the ability to foster a good relationship with the parent who is not the custodial parent.  Be sure you encourage visits with the other parent unless there is a serious reason why you should not do so. But never act without permission of the court or counsel.  For instance, in that instance, if you learn that one parent is abusing drugs or alcohol tell your attorney so they can make a motion to the court to suspend visits or to make visits supervised pending further investigation. Never let a lot of time go by before you act.

If there is an extant order of custody in favor of a parent and there has been a significant change of circumstances you can apply to modify the present order in your favor.

In making a final Order of  Custody the courts will look to what is in the best interests of the child and will take into consideration things like who is the primary caregiver, how long have the children resided with a particular parent, which parent can best provide for the children’s emotional, medical and educational needs.   While finances do come into play the courts more importantly place emphasis as they should on such factors as which of the parents provide direct care and nurture and guide the children in all aspects of their lives. In some instances, both parents may fit the bill and then a court can order joint custody.

Lastly, there are certain procedures you must follow if the parents were never married.  For instance, if you were never married but you are sure that the child is yours then you should go to Family Court and apply for an Order of Filiation to establish paternity, especially of you were not present at the birth of the child in question and you never signed an acknowledgment of paternity at the hospital.  Only after paternity is established may you apply for child custody in New York.


 
Must I sue for custody?
October 23, 2018

MUST I SUE FOR CUSTODY?

 

Many of my clients do not understand that in order to get a divorce judgment the parties must first settle their issues of child custody.  That means when you commence an action for divorce you must include in the Wherefore clause a request for custody.  In doing so that does not necessarily mean you want exclusive custody but it is a good idea to start with suing for custody in order to protect your rights moving forward.  An alternative might be to sue for joint custody especially where both parties can get along and have no problem with talking about the best interests of the children and making joint decisions.

There are two parts to a custody determination.  The first point of inquiry is decision making and the second point of inquiry is the location where the children will the children reside.

That means that the parties need to decide who will be doing the decision-making as to the children and what will the custodial schedule look like.  The Courts in New York favor joint custody wherever possible but sometimes the acrimonious relationship of the parties poses a problem such that only one party can be awarded custody.

Many parties think that because their spouse agrees to a divorce that they can get an uncontested divorce. That presumption is patently false is the parties do not deal with the issues of custody and child support and spousal support in the body of the Judgment roll.

If you are having problems deciding the above issues then you will most likely have to seek judicial intervention to move the matter forward.  In court the Judge will typically appoint a lawyer for the children and sometimes order psychological evaluations for the children and parties. Parties are cautioned that this can be very expensive but worse, it can cause a lot of stress on the children so if you can solve the issues of custody beforehand, do so. However if there are serious issues of unfitness then it is probably best to ocnduct an investigation.

Many fathers are under the false impression that the Mothers always get custody. This is incorrect because the laws are gender neutral and more and more father s are suing for custody if they feel they are best suited to be the primary caregiver for the children.

 


 
WHAT IS A RJI
October 21, 2018


 

What is a Request for Judicial Intervention?

An RJI is called a Request for Judicial Intervention (UD-13) or (A-11), and it is a request that must be made in a conflictual divorce or an uncontested divorce if you want a judge assigned to a case. Usually a judge is assigned at the beginning of a case if it appears as though your case can not be settled out of court and you need a Judge to help move things along. This is an important form because without it you will not be able to get a judge to sign an application for support or other interim relief.  You or your divorce attorney will file the RJI in the County Clerk’s office and upon payment of a fee the Clerk will send it out for assignment to a Judge.

When you or your lawyer files an RJI for divorce, custody or annulment the case is next assigned to a Judge.

A matrimonial case is considered a special proceeding and that means you will get a judge assigned to the case sooner rather than later.

Once you or your divorce lawyer files the RJI with service of process on your spouse a Judge will be randomly selected to hear your case. You cannot choose which judge you want to hear your case.  However, if there is a conflict of interest the Judge will usually take him or herself off the case.

Upon the filing of the RJI the Court will send you or your lawyer a date to come to court. Usually that occurs in 45 days.  That first court date is called a preliminary conference where the attorneys fill out documents as to financial discovery and the Judge sets up a time line as to what work needs to be done in order to move the case forward.

There are two different RJI forms. One is for an uncontested divorce and one is for a contested divorce.

 


 
Can I sue for Grandparent Visitation?
September 25, 2018

 

GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE

 

Grandparent visitation can be had if certain criteria are met. Thus, in New York grandparents’ rights are limited to certain circumstances where a court might grant visitation with their grandchildren.  This is because the law recognizes that it is the parents and not the grandparents that have the ultimate right to raise their children as they deem fit and that this right is   superior to any third party’s proclaimed right.  In essence that means a court might grant you standing to apply for visitation and will perhaps award it if you can show you have a substantial meaningful relationship with the child or children such that the Court can decide that you have standing to bring the actions.  Only after that determination is made may a Court move on to decide whether or not to grant visitation and will first be charged with weighing a myriad of factors to see if the court believes it is in the best interests of the children to award visitation.  As an aside, and as to standing, please note that you have automatic standing to bring a petition where one or the other parent has died but, in that case, you should know that while you would have automatic standing to apply for visitation that does not necessarily mean you will automatically get it awarded to you.    New York applies a variety of factors and stages before determining grandparent rights.  First, the court must determine if you have standing to be in court in the first place, which requires a showing that equity dictates that the court intervene.  That is usually established by showing the court the nature of your relationship and whether it is long standing and substantial and functioning.  After standing is established the court will apply the best interests test that it employs in all visitation cases. Some of the factors the court considers in a best interest’s analysis is what the child desires, and the position of the attorney for the child. Other factors include the rational objections of the parents to grandparent visitation and whether it is advisable for the child to see their grandparents under certain conditions such as mental illness.  Notice must be given to the parents affected before you go to court on your petition for grandparent visitation.

          In a Second Department case in New York the court held that the grandfather lacked standing to petition for visitation where the children's mother had never frustrated his visitation. There, the court found that Grandfather lacked standing to petition for visitation with his grandchildren, since the children's mother had never frustrated his visitation with them ab initio; rather the mother merely set forth the conditions of the visitation with the grandfather by asking the grandfather to not bring the grandmother along on the visit. Moreover, in another case called Ordona v. Campbell the court held that grandparent visitation needed to be terminated where the grandmother had failed to obey court orders and exhibited a strong animosity toward the Father and the grandmother tried to undermine the father’s relationship with the child.   That said, this should not discourage a grandparent from filing for visitation if the parents are both denying contact with the child after you have formed a positive and substantial bond with the child.  This precept was demonstrated in an interesting New York Third Department case of Monroe v. Monroe, decided in 2017.   There, the court suggested that Grandparents would have the right and standing to bring a petition for visitation if they could establish that they have a long substantive existing relationship with the grandchildren, or in cases where the parents are frustrating their contact with their grandkids. On those facts a court can likely intervene in the interests of the best interests of the child.    Moreover, in another Second Department case in New York the court held that a grandmother had standing to ask for visits with the grandkids where she showed the court that she had a long-standing relationship with the child and where the child's father unexpectedly died.

The lesson to be learned here is that while grandparents do not always have automatic standing to sue for visitation, where equity permits and you can prove your relationship should be continued in the child’s best interests the court might grant it.

 

By: Your Manhattan Custody Lawyer Lisa Beth Older



 

 


 
Do grandparents have visitation rights in New York
September 24, 2018

 

GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE

 


Under certain circumstances the court in a divorce or family court case may, in its sole discretion, allow a grandparent standing to sue for grandparent visitation under certain circumstances.  In other words, the Court may provide for the reasonable visitation rights of the maternal and/or paternal grandparents of any child in circumstances where either or both of the parents of a minor child residing within New York State is or are deceased, or where circumstances show that compelling conditions exist which equity would see fit to intervene.  Thus, and pursuant to law only under those above circumstances may a grandparent or the grandparents of the child apply to the supreme court to be heard on the issue of grandparent visitation by starting a proceeding or by filing for a writ of habeas corpus.  After appropriate notice to the parent having the primary custody, and control of the child, the court may make such orders as furthers the best interest of the child as to grandparent visitation rights. However, the statute merely gives a grandparent standing to sue for visitation if the court finds cause as stated above, and does not presuppose an ultimate right. Rather, even if the court determines the grandparent has standing, the above statute provides that a parent’s decision with respect to grandparent visitation is given presumptive weight such that a grandparent only has standing to sue for visitation when one of the child’s parent has died or when equitable conditions persist and compel judicial intervention in the best interest of the child.
            Thus, a trial court must not presuppose that visitation with a grandparent is warranted but rather must first be concerned with a parent’s wishes as to the issue and thus providing great weight to the strong presumption that the parent’s wishes control.  After that, the Court may consider several other factors in deciding whether it was in the best interests of the child to award grandparent visitation. Some of these considerations would be the attorney for the child’s position, the wishes of the concerned subject child, the reasonableness of the parent’s position against visitation with the grandparent, and other such conditions that would be in furtherance or lack of furtherance to the best interests of the subject child. To conclude, only the death of a minor child’s parent gives automatic standing to sue for grandparent visitation.

          In a Second Department case in New York the court held that the grandfather lacked standing to petition for visitation where the children's mother had never frustrated his visitation. There, the court found that Grandfather lacked standing to petition for visitation with his grandchildren, since the children's mother had never frustrated his visitation with them ab initio; rather the mother merely set forth the conditions of the visitation with the grandfather by asking the grandfather to not bring the grandmother along on the visit. Moreover, in another case called Ordona v. Campbell the court held that grandparent visitation needed to be terminated where the grandmother had failed to obey court orders and exhibited a strong animosity toward the Father and the grandmother tried to undermine the father’s relationship with the child.  

          That said, this should not discourage a grandparent from filing for visitation if the parents are both denying contact with the child after you have formed a positive and substantial bond with the child.  This precept was demonstrated in an interesting New York Third Department case of Monroe v. Monroe, decided in 2017. There,  the court suggested that Grandparents would have the right and standing to bring a petition for visitation if they could establish that they have a long substantive existing relationship with the grandchildren, or in cases where the parents are frustrating their contact with their grandkids. On those facts a court can likely intervene in the interests of the best interests of the child.   

          Moreover, in another Second Department case in New York the court held that a grandmother had standing to ask for visits with the grandkids where she showed the court that she had a long-standing relationship with the child and where the child's father unexpectedly died.

The lesson to be learned here is that while grandparents do not always have automatic standing to sue for visitation, where equity permits and you can prove your relationship should be continued in the child’s best interests the court might grant it.

 

By: Your Manhattan Custody Lawyer Lisa Beth Older

 


 
Who will get custody in New York?
September 23, 2018

What is Child Custody Law in New York?

Child custody law in New York City is complicated and diverse because the Courts have ultimate discretion as to who gets custody of a child. Firsts, the Court has to decide whether it has power to hear and adjudicate your case which can be complicated where the parties live in multiple states. In order for any court to hear your case, absent an emergency, your children will have had to have lived in that State for a consecutive period of six months.

It used to be that Mothers would always get custody, especially if they were the primary caretaker, that is not the state of the law presently. This is because gender of the parents does not determine who gets the children. If child custody has not been formally decided yet, then either of the biological parties may keep the child but it is not wise to alter the pattern of habitation and leave the state with the child using self-help. This is because the State of New York will likely order you to return the child.  Rather, go to court and file a petition for a formal adjudication of custody, and state the facts as to why you are more fit to parent.

What are the factors the court use to determine custody?

The courts use the best interest analysis in determining who gets custody of the children. There are two types of custody one is physical custody where the courts determine the primary residence of the child. The second type involves decision making which is called legal custody the court favor joint legal custody but if the parents cannot get along then the courts will sometimes order sole custody since decisions about children sometimes cannot be made jointly where there is a high level of animosity between the parents,

There is also something called “spheres of custody decision-making, We see this a lot in Manhattan cases, where the courts will divide up the kinds of decisions one parent should make over the other, For example, if one parent has always made good medical choices for the children, they might get final say as to medical decision making whereas if one party is more religious then the other they might be awarded decisions related to religion.

Courts like to continue patterns in the interests of promoting the stability of the child and that factor weighs in heavily in any judicial determination. The courts also want to see who will likely foster a good relationship between the child and other parent, and you could be deemed per se unfit if you alienate the child against the noncustodial parent.   The Court will also consider the child’ stated desire to live with one parent or the other and whether the child has other siblings in the household.  The court will also see who they think is the primary caregiver, who has more time to devote direct care to the child, and who is the parent best able to guide the child through all aspects of the child’s life. The respective financial resources of each parent are also considered but in my experience is not at all determinative. Custody cases are generally determined after a hearing where the parties call witnesses and produce evidence or else settled between the parties by written settlement or stipulation.  Most cases settle out of court before it gets to that point.  

As and for visitation, it must be meaningful and it must occur regularly so the court will frequently award liberal visitation to the parent who is not living with the child.  How much and how frequently the visitation will occur is determined usually after a fact-finding hearing.

Try to get a consultation with a New York custody lawyer before you try to represent yourself in a hearing because custody cases are complex.

 

By: Your Manhattan Custody Lawyer

 

 

 

 

 

 

 

 

 


 
What will a divorce cost and how long will it take?
September 11, 2018

What will a divorce in New York Cost? 

          The most frequently asked question I get from prospective clients is “how much will a divorce cost in New York?”.  The second most frequently asked question is “how long will it take to get a divorce?”. This article will deal with both questions because one question is inextricably tied to the other.  My canned response to these questions is that it always it depends on the case because there are multiple variables that come into play and an attorney can not really guarantee a fee as litigation is hazardous.

          For instance, if the attorney on the other side is aggressive, or if your spouse is unfair, pushy, or just plain vindictive and spiteful, then in order to secure a fair disposition of your case you might have to take your case all the way to a trial or even to an appeal if you do not like the results of the lower court because the lower court erred in its decision.

          But there are statistics on hand that might be able to give you a better prospective as to costs but you can not always rely upon them.  In my experience only, however, typically a divorce that has not too much at stake can be resolved for under $15,000.00, but if there are multiple issues of property distribution, child custody and support then your fee can sky rocket from there. If you are going to trial and your issues entail child custody, and distribution of multiple complicated properties and funds, then expect to add on at least $100,000.00 to your bill for trial preparation and the trial itself, and it could be more.  In a Forbes article in 2006 I read once that divorces that are contested range anywhere from $15,000 to $30,000.

          Then there are the added costs of court expenses such as expert evaluations of real property, pensions and businesses, stenographic costs, and courier fees.

          Lastly, you have the added expenses of court filing fees, such as the purchase of an index number which is $210.00, the RJI fee of $95.00 and payment for the Note of Issue fee.  If you file a motion each filing fee for each of these motions cost $45.00.  To obtain certified copies of any document you will have to pay the clerk of the county by the page, and you will certainly want a certified copy of the divorce Judgment.

          Attorneys charge by the hour, and the number of hours they spend on the case will determine your ultimate fee.  The hourly rate of each attorney depends upon their geographical location and their experience in matrimonial law.  The rates vary dramatically but surveys tend to suggest that the hourly rate of a divorce lawyer in New York spans between $300.00 per hour to as high as $850.00 or $900.00 per hour. Because attorneys charge by the hour, you will tend to find that a Manhattan divorce lawyer charges on the higher end of the spectrum because their overhead is higher than an attorney in a more rural location.

          As to duration, the average divorce case will take under a year to complete but if your spouse is recalcitrant in turning over documents you need to settle your case it could take longer.  Furthermore, if there are children in your family and you have to decide issues of child custody or visitation then these cases tend to be costlier because it takes a lot longer to sort out.

          Another factor is the size of the marital estate. The more money there is to fight over the more attorneys’ fees you can expect to pay because you want a fair and just financial settlement and the way to get there sometimes results in the exchange of not only net worth statements but also back up financial materials that you must either get from your spouse or else subpoena.  These discovery processes take time and money before they are completed. Once this part of your case is completed the attorneys will exchange settlement proposals and argue over the details.

          If nothing can be resolved between counsel then the Court likes to either settle cases through court conference meetings or else send them to trial after nine months and there are judicial guidelines that the courts follow to ensure that your case does not linger. In my experience, most of my cases settle under or about the one-year mark but I have seen cases go as long as three years, or longer. The more issues you can resolve with your spouse the shorter and less costly your divorce will become because there will be less attorney involvement.

          From this article you can see that if you can find attorneys who accept flat fees it might be the way to go, but it is not always a feasible option.

          Given the expense of a contested divorce you might also consider alternative approaches such as mediation or collaborative divorce.

          Lastly, avoid fighting over grounds from divorce.  It rarely impacts the financial or custody settlement and you will find yourself trying a case for nothing.

By: Lisa Beth Older

Your Manhattan Divorce Lawyer   

Disclaimer:  The ideas espoused in this article are solely the opinion of this writer and should not be relied upon in deciding on your divorce case. Seek your own attorney for estimates as to your case.


 
What are the rights of parents as to artificial insemination?
September 3, 2018

What are the rights of parents as to artificial insemination?

If parties are married to one another and one party becomes pregnant through the procedure of artificial insemination then for purposes of New York Divorce Law, in most instances the child born of this marriage is the legitimate child of both parties to the marriage.

This law as to artificial insemination is in concert with New York law and the notion that any child born during a marriage is deemed the legitimate offspring of both parents.

In cases of artificial insemination a child born through artificial insemination that is performed by a medical doctor is deemed the child of both husband and wife so long as the doctor has the written consent of wife and husband and the written consent must be executed by not only the parties but also the doctor performing said insemination.  The typical example is when an infertile husband consents to allowing his wife to be artificially inseminated because he consented to the procreation during the course of his marriage and should be estopped from denying parentage.

Some of the legal issues that arise in cases involving artificial insemination are the storage of the egg, the custody issues surrounding the birth from an egg, the inheritance rights and various other parentage issues concerning donors of the egg and sperm.  It is important to note that he laws surrounding this area of law are different depending on the State where you bring the action.

In New York the Supreme Court ruled that a child born of a same sex marriage is the legitimate child of the marriage and that a sperm donor has no rights to the child. This is because under NY DRL Section 73 any child born in the manner described above is the legitimate child of both parents and that presumption may not be rebutted in court so long as the procedure is performed by a doctor.

Recently however, a case was decided in the Second Department that held that if an insemination is not done by an authorized doctor the presumption could be challenged in a court of law. 

If you are planning to undergo a procedure of artificial insemination in New York it is important to seek legal advice because said consent has serious legal consequences into the future, such as presumptions of custody and child support.