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 Paternity
Children Rights? It is a basic right of a child to know who both of their parents are. If a child is born to parents who aren’t married and who are no longer involved with one another by the time the child is born, the child may not know who his or her father is. By establishing paternity, the biological father of a child is legally identified and he takes on financial responsibilities that go along with the child. All children have the right to be supported by both of their parents, even if the parents are separated or divorced. A man proven to be a child’s biological father will most likely be ordered to pay child support and may be required to cover the child on his health insurance. If no paternity is established between the alleged father and child, he is not required by law to pay child support. Establishing paternity may make the child eligible for social security and veteran’s benefits if the father dies or becomes disabled. Establishing paternity also ensures that the child will inherit his or her share of the father’s estate. A child also has the right to know about his or her family’s medical history, including their mother and father’s medical histories. This is based on the fact that many diseases, such as diabetes and sickle cell anemia, are passed on through one’s parents. Identifying who a child’s father is can enable the child to obtain this information and ensure that he or she is receiving the proper care and preventive measures. (718) 423-6999 Blood Tests? Blood tests may be used to exclude some men from being the fathers of some children. There are four main blood types: A, B, AB (A-B), and O. When two people have a child together, their blood types determine the blood type of their child. For example, if both parents have blood type A, their child could have either blood type A or O. It would be impossible for their child to have blood type B or AB. If a woman believes a man to be the father of her child but his blood type doesn’t match as a possibility, he is excluded from being the father. Using a blood test to affirmatively determine paternity is often far from accurate, however, since many people have the same blood type. DNA (D-N-A) paternity testing is a more accurate way to establish paternity because each person’s DNA, or genetic material, is unique, except for identical twins. A child receives half of his or her DNA from the biological mother, and the other half from the biological father. The results are more accurate with DNA paternity testing. If a man is shown to not be a child’s father, he is 100 percent excluded as a possibility. If test results show a man to be a child’s father, there is about a 99.8 (ninety-nine point eight) percent chance he is. (718) 423-6999 Fathers Rights? A biological father’s rights include having his name on the child’s birth certificate, shared parental responsibility, the right to request visitation, and the right to request custody. A father can request custody, and in some cases to take legal action on behalf of the child even if he doesn’t have custody. Visitation may be granted by the court even if custody is not. The limits of visitation are to be determined by the court. It is important to note that where parties are not married, the father being listed on the birth certificate is not sufficient to establish paternity rights. This must be done by filing an acknowledgment of paternity form pursuant to the Public Health Law, or by court order. For more information regarding a biological father’s rights, contact our office. (718) 423-6999 Visitation / Custody / Support Rights? When a child is born to parents who are not married, the father must sign an official form of “acknowledgment of paternity” to establish that he is the father of the child. This form should be available at the hospital or from a social services official. If a father does not establish paternity, he negates his legal right to seek custody of the child or to have visitation privileges. Without having paternity rights established, a child’s mother has no legal right to seek child support payments from the alleged father. If the parents wish to avoid going to court in the future, they can sign the acknowledgment of paternity when the child is born. This makes both of the parents legally responsible for their child. If the parents do not live together, the father may be ordered to pay child support. He may also receive sole or joint custody of the child, or have visitation privileges granted. Without a signed statement of paternity, one or both parents must contact their county child support agency if they wish to start a paternity action. If the court establishes paternity visitation, custody, and child support issues are decided. For more specific information on custody, visitations, and support rights, contact our office today. (718) 423-6999 Established Paternity? “Paternity” literally means fatherhood. “Establishing paternity,” is the process of identifying the father of a child, legally determining he is the father, and recognizing the father’s rights and responsibilities. The listing of a father on a birth certificate is not, in and of itself, equivalent to an establishment of paternity. When the biological father of a child is married to the biological mother at the time the child is conceived or born, the man is presumed to be the child’s father and no further activities to establish paternity are necessary. When parents are not married when the child is born, they may sign an official form known as an “acknowledgment of paternity,” providing this is filed appropriately in accordance with the Public Health Law. A party may also petition the Family Court to have paternity established. Paternity may be established in Family Court by acknowledgment of the parties in court or by a court order. The court can order blood tests if the parties do not consent to the validity of paternity. If the tests prove that a man is not the father, the case will be dismissed against the man. If the tests indicate a probability that he is the father, but he still denies paternity, the court will hold a hearing. A man is presumed to be the father of a child if he was married to the mother when the child was conceived or born, and he has raised the child as his own for any significant period of time. This may mean that even if another man’s blood test shows that another man is the child’s biological father, the presumed father can still be determined the legal father because he has in essence made the child his own. On the other hand, the presumed father may be blocked from denying paternity and may be subject to all of the rights and obligations of any biological father. Persons concerned as to whether such a block may apply should contact our office without delay. (718) 423-6999 Child Support Child support Guidelines? In New York, the amount of child support a non-custodial party pays to the custodial parent is established by way of a formula. The formula is based upon a percentage of the “combined adjusted gross income” of the parents, as the Family Court Act or Domestic Relations Law defines the term. Provisions of the Child Support statutes require application of certain percentages to the first $80,000 of combined parental income, depending upon the amount of children involved. For amounts above $80,000, the court may use its discretion. For one child, the child support obligation is 17% of the combined adjusted gross income, for two children 25%, for three children 29%, for four children 31% and no less than 35% for five or more children. Parents are also responsible for their pro-rata share of non- reimbursed medical expenses and child-care expenses. A custodial parent has the right to request that child support be deducted directly from the non-custodial parent’s income or paycheck. Courts are not allowed to deviate from these guidelines except in situations when applying the guidelines would be unjust or inappropriate. Either parent has the right to seek a modification of child support, but a change of circumstances must be alleged and must be proven to grant a modification. The parties may enter their own agreement for support in conformity with the child support guidelines, or in conformity with the “opting out” provisions of the support statutes. (718) 423-6999 Enforcing Payment of Child Support? There are a variety of ways to enforce the payment of child support. Once a support order is made, if it is not paid, the court may then take further action to enforce the order. The most common way a court collects child support payments when not voluntarily made, is through a wage garnishment order, which directs the non-custodial parent’s employer to deduct the child support payment from earnings and make payment directly to the custodial parent. Another possibility is to have the support paid to a state agency called the Support Collection Unit or Child Support Enforcement Bureau, which then cashes the check and sends their own check to the custodial parent. This agency keeps records of payments received and made. If a non-custodial parent owes back child support, known as "arrears", and the child support order is payable through the agency, then the agency has the authority to intercept any tax refund the non-custodial parent is entitled to receive and have those funds paid to the custodial parent for the purpose of paying off the arrears. Should the custodial parent claim that the non-custodial parent is in violation of the child support order, and the court finds that the violation was willful, and then the non-custodial parent can be held in contempt of court, with potential consequences being a money judgment in favor of the custodial parent or, in some cases, incarceration up to six months. Other remedies that the court or the agency can take against a parent who does not pay support includes the suspension of professional and driver’s licenses. New York’s Family Court Act directs that the non-custodial parent who is found in willful violation of a child support order is responsible to pay the attorney fees for the custodial parent seeking enforcement. (718) 423-6999 Modifying Child Support? An application to change or modify a child support order can be made when there is a material change in circumstances from the time the existing order was issued. If there are substantial changes in a parent’s financial situation, such as a substantial increase or decrease in wages or loss of a job, a child support order can be modified. Unexpected expenses for the child such as large medical bills or a need for special education are also grounds for modifying child support. Some changes in child support can be temporary, for example, if one parent loses his or her job, the amount of child support he or she pays may decrease until a new job is found. Then child support payments may increase again based on the parent’s new salary. Both parents must submit tax returns, paycheck stubs, and any other evidence of employment as well as expense statements so that, if warranted, appropriate modification of child support may be determined. Where the parties previously entered an agreement of support, the parent seeking a change or modification may have to establish certain threshold showings to be entitled to a modification. For more information contact our office today. (718) 423-6999 Obtaining Child support? Child support is obtained through a “child support order,” which is a legal document issued by a court that states when, how often, and how much a parent is to pay for child support and other related expenses such as non-reimbursed medical expenses and child care expenses. A child support order is typically issued when two parents divorce or separate and one parent retains custody. One parent can also be ordered to pay child support even if he or she never married the other parent, once paternity has been established. In a situation where the custodial parent and the non-custodial parent live in different states, there is a federal law, which allows the custodial parent to file a petition for child support in the state where they reside, called the petitioning state. The petition is then sent to the state where the non-custodial parent lives, called the responding state. The responding state then issues a child support order binding upon both parents. Often, in this situation, the non-custodial parent makes payments to a child support agency, and not directly to the custodial parent. (718) 423-6999 Termination of Support? Termination of a child support order will occur when certain requirements established by state law have been met. For example, child support will most often terminate when the child for whom support is being paid reaches the age of twenty-one. However, there are circumstances, such as prior agreement between parents, when the court might order that the child support remain in effect after the age of twenty-one to meet certain educational needs of the child. Child support will also terminate if the child becomes emancipated. Common grounds for emancipation include attaining the age of twenty-one, working full-time and becoming self-supporting, getting married, or joining the armed forces. A non-custodial parent who pays child support may be able to have the court terminate a child support order if a child abandons the parent by refusing to have a relationship with the parent despite the parent's efforts to maintain a relationship. Emancipation may be reversible, such as where a child who was formerly self-supporting is no longer self-supporting and is still under the age of twenty-one. Contact our office today for more details. (718) 423-6999 Custody Child Custody? The issue of child custody often arises as a result of a divorce, or when two unmarried parents separate. In New York, custody can be addressed in both Supreme Court and Family Court. The state where a child has resided for the previous six months is called the home state and has jurisdiction over the child in custody cases. Parents generally are presumed to have equal rights to and responsibilities for their children. The decision as to which parent should have custody of a child can be reached by private agreement, or, if not, is made by a court. It is usually best if separating parents can reach an agreement concerning child custody. The standard used by the court to determine custody is the best interests of the child. In New York, there is no statutory joint custody, which means that, after a trial, a judge can only order sole custody to the mother or to the father. As well, if the parents agree to joint custody, a judge can order it based upon their agreement. The non-custodial parent will be entitled to visitation, and the amount of visitation will be determined either by agreement between the parties or by a judge after inquiry into the facts and circumstances of the case and the best interests of the child. The wishes of the child may be taken into consideration, depending upon the situation and the age of the child. To assist it in reaching a decision in a custody case, the court may seek opinions of certain professionals, such as a Certified Social Worker or a forensic Psychologist or Psychiatrist. In almost all custody matters before a court, the child will be appointed an attorney called a law guardian whose job is to represent the best interests of the child. Depending upon the county the case is in; the parties may be responsible to pay for the law guardian’s services. Contact our office today for more details. (718) 423-6999 Sole Custody? Sole custody of a child exists when one parent has the right and obligation to make decisions about a child’s upbringing. When a parent has sole legal custody, he or she has the authority to make all decisions regarding the health, education, and welfare of the child. The other parent’s input on these decisions may vary pursuant to agreement by the parties or decision by the court, but the parent with sole custody will have the final say. When both parents have equal decision-making power, it is called joint custody. If a parent shares joint legal custody, he or she may not exclude the other parent from the decision-making process. If this occurs, the parent who was excluded may take the other parent to court and request that a judge enforce the original custody agreement requiring the parties to work together on deciding major issues. A parent who violates the agreement might be found in contempt of court and suffer certain consequences, which can include being responsible for the other parent’s attorney fees and if these are repeated violations, may risk losing primary custody to the other parent. Contact our office to discuss this topic in more detail. (718) 423-6999 Modifications of Custody Orders? Changes or modifications can be made to a custody order where there has been a change in circumstances. A change in circumstances can be either a change in the custodial parent’s situation or in the child’s situation. The change in circumstances must be substantial, rather than minor, and must be such that the best interest of the child is at risk. In appropriate cases, a court can change custody where a custodial parent refuses to allow visitation by the non-custodial parent or where the custodial parent attempts to alienate the child from the non-custodial parent. Unless the parties agree to the circumstances for a change, a court will decide whether a change in custody occurs. The court may seek the assistance of professionals such as a Certified Social Worker or forensic psychologist or psychiatrist. The court will appoint an attorney, called a law guardian, to represent the child. While the input of the professionals is not controlling, it is often relied upon by the court in coming to a decision on custody. (718) 423-6999 Relocation? Often, in a post-divorce or post-separation situation, the custodial parent wishes to relocate with the children to another state. In such a situation, a number of variables come into play, one of which is the affect such a move will have upon the non-custodial parent’s visitation. The custodial parent is not freely allowed to relocate where the non-custodial parent has, and regularly exercises, an order of visitation. The custodial parent will generally need consent of the non-custodial parent or a court order approving the relocation. If the custodial parent seeks a court order allowing him or her to relocate, the court will consider a number of issues, but the underlying standard will be the best interest of the child. Some which impact upon the best interests of the child in a relocation situation include the custodial parent’s reason for relocating; the quality of the relationship between the non-custodial parent and the children and the custodial parent and the child; the impact the move would have on the contact between the non-custodial parent and the child; how the move would enhance the child’s and the custodial parent’s life economically, emotionally and educationally, as well as other factors. If parents can agree to the relocation, this often entails the non-custodial parent receiving greater blocks of visitation time over vacation or summer periods as opposed to the existing shorter regular visits on a weekly or bi-weekly basis. Contact our office for further information. (718) 423-6999 Shared or Joint Custody? Joint custody is a legal, rather than a physical, concept, which refers to parents who share the decision-making powers regarding their child. In a joint custody situation, major decisions regarding the child’s welfare, is supposed to be agreed upon jointly by the parents. In New York, there is no statutory authority for a court to award joint custody. After a trial, a judge can only award sole custody to the mother or father. However, if the parents agree to joint custody, a judge can issue a legal order of joint custody. Joint physical custody is a physical, rather than a legal, concept. Joint physical custody generally includes a situation where children spend equal or almost equal time at each parent’s home. For a court to agree to such an arrangement, the court will need to know that the parents communicate reasonably well so that the logistics of the child having two homes will work out smoothly. For more information on joint custody contact our office. (718) 423-6999 Grandparent's Custody? The relationship between grandparents and their grandchildren has become increasingly complex over the past 15 years. A 1990 Time Magazine article reports that 3 million children live with their grandparents; this is an increase of 50% since 1980. Many grandparents are raising their grandchildren today in informal custody arrangements. Often grandparents find that they need or want a legal order of custody of their minor grandchildren, and they must go to court. In New York State, there are certain requirements, which must be met in order to obtain an order of legal custody. In general terms, the natural parent of the child has a superior right to raise the child over any other non-parent (including grandparents) unless extraordinary circumstances can be shown. Extraordinary circumstances are: surrender of the child, abandonment of the child, persistent neglect, unfitness of the parent, or other like circumstances. The test of extraordinary circumstances must be met before the court will move on to the next test: whether it is in the best interests of the child to be in the custody of the grandparent. Extraordinary circumstances include situations where the parent is psychologically impaired, drug addicted, alcohol addicted, or otherwise unfit. Proving these matters often becomes a complex and difficult task. It is imperative that you have the benefit of an experienced attorney familiar with grandparental matters to assist you. Please contact our office for a consultation. (718) 423-6999 Divorce Separation & Annulment Annulment? Like a divorce, an annulment is a court procedure that dissolves a marriage. An annulment is different in that it treats the marriage as though it never happened. For some people, divorce carries a stigma and they would rather their marriage be annulled. Others prefer it because it may be easier to remarry in their church if they go through an annulment rather than a divorce. Usually an annulment will be granted if there has been an incidence of misrepresentation or fraud in a marriage which the other spouse relies upon, such as when a spouse lies about his or her ability to have children, or lies about being old enough to marry without parental consent. Annulments can sometimes be granted on the grounds of concealment, such as when a spouse hides an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency. Couples married in a religious ceremony may be able to obtain a religious annulment after obtaining a civil divorce in order for one or both spouses to remarry. Most annulments take place after a couple has been married only for a short period of time, though this is not always the case. Annulments are often more complicated to prove than divorce, so unless it is absolutely required, divorce may be a more preferable choice. Contact our office to discuss options relating to annulment and divorce. (718) 423-6999 Child Support and Alimony? Child support is payment by one parent to the other for the support of their common child. Usually, the parent who doesn’t have physical custody of the child is required to pay child support to the parent with whom the child resides most of the time. New York State uses a formula for determining the amount of the child support payment, which is based on the respective incomes of the parents, including wages, investments other income and the number of children. In certain circumstances, a judge may consider the paying parent’s other dependents (such as children from a prior relationship) and special circumstances like travel expenses incurred for child visitation. Child support is tax-free to the parent who receives it, and is not deductible for the parent who pays it. Alimony (Maintenance) is money paid to one spouse by the other for support during or after legal separation or divorce. It’s designed to provide the lower-income spouse with money for living expenses over and above any money that is provided by child support. There are several factors a judge considers when deciding whether and for what period of time to grant alimony, such as: the parties’ relative ability to earn money, both now and in the future; their respective ages and health; the length of the marriage; and the standard of living established during the marriage. Alimony is tax deductible to the person who pays it and is included in the taxable income of the person who receives it. While there is no requirement that the parties were married for there to be an award of child support, there can be no award of maintenance if the parties were not married. Please contact our office to discuss alimony and support in more detail. (718) 423-6999 Facts about Divorce A divorce is the dissolution of a valid marriage. The most common grounds for divorce are abandonment and cruelty. New York now allows for a no-fault divorce, which enables either party to seek a divorce on the basis of a marriage that has been irretrievably broken for at least 6 months. Prior to this new law, which went into effect in October of 2010, a divorce would only be granted based upon specific grounds: adultery, abandonment, imprisonment, cruel and inhuman treatment, or separation pursuant to a separation agreement for one year. Before hiring an attorney, it is a good idea to gather as much information as you can about your family’s finances, such as monthly costs of running the home, the income of you and your spouse, and the amount and location of savings accounts, investments, retirement plans and insurance policies. This information will be important when you first speak with an attorney and later, whether you settle or go to court. Be sure you seek out an attorney who is qualified to deal with family law issues. Make sure different attorneys represent you and your spouse. You, your spouse, and your attorneys may be able to work out an out-of-court divorce settlement. However, if you’re unable to reach a compromise, or if one or both parties refuse to disclose financial information, your divorce will have to be handled in court by a judge. Contact our office for a divorce consultation or to obtain further details. (718) 423-6999 Marital and Separate Property? Marital property is any property owned by a husband and wife that’s been accumulated during the marriage, regardless of which spouse earned it and regardless of whose name it is titled to. The time frame “during the marriage” starts as of the day the couple marries, and usually ends on the date that one spouse files a divorce action in court. In New York, marital property is divided during a divorce according to what the court deems is equitable or fair. This is not necessarily equal. Separate property is property owned by one spouse prior to marriage, and also includes property received as a gift or by inheritance during marriage, or as a result of a personal injury settlement. Property purchased with the separate funds of a spouse remains that spouse’s separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, but may be considered marital property if it increased in value during the marriage due to the efforts of one or the other of the spouses, or if both spouses worked at it. Separate property can be changed into marital property if its separate identity is not carefully maintained during the marriage. You should discuss in detail with an experienced family law attorney how each item of property was obtained and what contributions you have made to any increase in its value. Contact our office for more details. (718) 423-6999 Physical and Financial Protection? Due to the nature of divorces, one or both of the spouses may be fearful that the divorce proceeding will cause the other to become angry, vindictive, or harmful. Also, an individual may need protection to prevent a spouse from concealing, destroying or spending marital assets during the period of a divorce action. Orders of protection are designed to protect a person from physical harm or harassment by the other spouse. Temporary restraining orders and preliminary injunctions are direct orders from the court that are intended to protect a person from improper transfer of assets and other improper actions such as the destruction of property. These may also exclude one party from residing at the marital residence. Temporary restraining orders are often granted in divorce cases for these reasons. If your situation requires protection of the court, you should contact our office for more details. (718) 423-6999 Post Divorce issues: Enforcement & Modifications of Prior Judgments or agreements? Once a divorce is final, issues may remain for ex-spouses to deal with. Whether a couple has worked out their own plan for child custody and visitation, or whether a court has implemented a schedule, parents and children must adjust to the new arrangements. Parents often do not observe custody and visitation arrangements. Since they are no longer living together as a couple, ex-spouses may have to learn to live under a different budget than they were previously used to. Custodial parents must become aware of when child support payments are made and non-custodial parents must know how and when to make payments. Similarly, the spouse with the lower income may receive alimony or spousal support, and the other spouse must know how and when to make these payments as well. The spouse making alimony payments should keep detailed records showing the date that the payment was sent, where it was sent, the number of the check, and a receipt signed by the recipient if paid in cash. The alimony recipient should keep records, as well, showing the date that the payment was received, the amount, a photocopy of each check, and a signed receipt if the payment was in cash. Sometimes circumstances change for one party or the other after a divorce, so that compliance with a prior order or agreement becomes impossible. In this type of situation, modification of the divorce judgment or agreement may be necessary or desirable. Also, the spouse who is ordered to pay support often does not pay what has been ordered or agreed to. Where a divorce judgment orders the division of property or transfer of property, one party does not comply. In these cases an enforcement proceeding can be filed requesting various forms of relief, including entry of judgment against the defaulting party, or even incarceration. You should not take matters into your own hands, but rather, should immediately seek the assistance of our office which can help you petition the court for appropriate relief. (718) 423-6999 Pre Nuptial Agreements? A pre-nuptial agreement is a binding legal contract between two people who intend to be married. A pre-nuptial agreement, also known as a “pre-marital agreement,” generally, sets down rules regarding a couple’s finances. For example, if one party is wealthy, he or she may ask the other party to sign a pre-nuptial agreement that specifically states the way in which assets will be divided upon divorce or death. People enter into pre-nuptial agreements to try to ensure that their assets will remain theirs if the marriage fails, to provide that assets go to their children in the event of death and to provide for support of their spouse after their death. Pre-nuptial agreements usually describe what property and prospects each spouse is bringing into the marriage, who will own the property and the investment income from the property, and what will happen to the earnings of each spouse. A pre-nuptial agreement might also cover what happens with property one spouse may inherit, what happens in the event of the death or disability of a spouse, how taxes will be handled, the level of support in the event of a divorce, and what happens to debts owed both before and during the marriage. If you are planning to enter into a pre-nuptial agreement, it is critical that you consult with a family law attorney experienced in these matters. Contact our office for further details. (718) 423-6999 Property & Debt Division? It is common for a divorcing or separating couple to decide about dividing their property and debts themselves, rather than leave it to a judge to decide. If a couple cannot agree, they can submit their property dispute to the court, which will use state law to divide the property. Division of property does not necessarily mean a physical division. Instead, the court awards each spouse a percentage of the total value of the property. Each spouse receives items whose worth adds up to his or her percentage of marital property and each spouse will retain his or her separate property. Courts in New York divide property in accordance with the laws of Equitable Distribution. In equitable distribution, assets and earnings accumulated during marriage are divided fairly. Generally speaking, the marital home, retirement benefits and bank accounts will be divided equally. In determining the equitable distribution percentage, spouses are given credit for both financial and non-financial contributions to the marriage (such as housekeeping, child-rearing, etc.) All debts incurred during a marriage are divided fairly, as well. You are advised to consult with an experienced family law attorney to ascertain what you may be entitled to in case of a divorce, separation or annulment. Contact our office for further details. (718) 423-6999 Orders of Protection? A temporary restraining order may be obtained by a spouse who feels threatened, or feels that he or she is or may be a victim of domestic violence. Sometimes during a divorce, one spouse may feel the need to ask for a temporary restraining order against his or her spouse. Restraining or protective orders instruct the spouse to cease particular activities against the victim and may even require the offending spouse to remain away from the other spouse, children and marital residence. After filing an appropriate petition, the court may issue a temporary restraining order and a hearing date will be set for sometime within the next few weeks. A law enforcement official will deliver a copy of the order to the spouse who must abide by the rules of the restraining order. Some restraining orders require that the perpetrator not contact, attack, strike, threaten, batter, or otherwise disturb the peace of the protected person. Other protective orders require that the spouse move from the protected person’s home, stay at least 100 yards from the protected person, or attend counseling. At the hearing, the victim and the accused are both able to plead their cases, and the judge decides whether to terminate the order or extend it for a year or more. If a spouse violates the order, they will be subject to arrest and possibly jail time. If a restraining order is extended from temporary to permanent, the spouse may no longer be able to purchase or own a firearm. If you feel you need protection from a spouse or an ex-spouse, speak to qualified family law attorney immediately to determine the appropriate procedures you should take. Contact our office for further details. (718) 423-6999 Temporary support Orders? A divorce may take a long period of time to finalize, depending upon cooperation or lack thereof between the spouses. Sometimes one spouse will find that he or she needs to file a temporary support request before a permanent order of support is established by the court. For example, if one spouse works and the other doesn’t, the unemployed spouse can file with the Family Court for a temporary support order from a judge, even though a formal divorce action has not yet been filed. A hearing concerning the temporary order can often be scheduled within days or weeks. The spouse requesting the order must make a written statement stating facts that justify the order, including a detailed, sworn financial statement. If a divorce has already been commenced, an application for temporary support can be filed in the divorce action in Supreme Court. You must explain in your application why you need the relief you are requesting, which may be to pay the mortgage and taxes, pay utilities, school expense for the children, for food and any other expense you may reasonably incur. To determine whether you should make such an application, and if you do, to make a proper and effective application you should contact our office for further details and assistance. (718) 423-6999 What is a Legal Separation? A married couple experiencing marital difficulties, but still believing that the marriage may be reconcilable, may petition a court for legal separation, or, enter into a separation agreement. A legal separation is a finding by a court that the conditions or circumstances of a marriage make it intolerable for the parties to live together, but does not otherwise affect the legal status of the marriage. Alternatively, the parties can agree to separate voluntarily and draw up a formal agreement, which may include provisions for child support and maintenance and division of property and debts. At any time after one year subsequent to the legal separation, either party may file a petition for divorce. Contact our office to advise you on the requirements for legal separation. (718) 423-6999 Domestic Violence Protection Against Abuse? A domestic violence injunction may be obtained by a person who feels that he or she is in danger of, or a victim of, domestic violence. Injunctions, also known as restraining or protective orders, usually require that the accused not contact, attack, strike, threaten, batter, telephone, or otherwise disturb the peace of the protected person. Other types of protective orders require that the accused move from the protected person’s home, stay at least 100 (one hundred) yards from the protected person, or attend batterer treatment counseling. If an accused batterer violates a restraining order, he or she may be subject to jail time. Unfortunately, however, some attackers may not be influenced by a restraining order, and attempt to inflict harm on the victim after the order has been issued. Victims of abuse should also consider other measures such as going to a shelter, staying with family or friends, having family or friends stay with them, leaving the area, and taking self defense measures. Always contact law enforcement officials if you are in fear for your safety. Please contact our office to discuss protection issues in greater detail. (718) 423-6999 When Accused of Abuse? If you are accused of abuse and wish to contest the charges, you should begin by immediately selecting an experienced family law attorney to represent you. This is critical, because in New York State, complaints of domestic violence can be filed in Family Court, Criminal Court, or both. Sanctions can include but are not limited to jail time, mandatory attendance in an anger management program, orders of protection, and fines. If restraining orders or an order of protection is granted to the accuser, the defendant can be removed temporarily from home and denied access to children. It is very important to remember that an allegation of abuse does not equal proof of abuse. The complainant must prove the allegations against you. Unfortunately, the accused defendant is often treated “guilty until proven innocent”. It is the responsibility of your lawyer to protect your rights if accused by asking witnesses to testify on your behalf, and by gathering any evidence that will help your case, including police reports. It is important that you work closely with your attorney to prepare your case. Make a time line of the events that occurred before the alleged abuse, make a record of everything that has happened since, as well. It is critical that you follow the advice of your attorney and the directives of the court. Once a hearing is scheduled, you will have a chance to defend yourself against the charges and show evidence and witnesses that support your defense. Where an order of protection has been issued against you, obey its provisions until you have your day in court. If you must have contact with the person in whose favor the order has been issued, such as to pick up a child for visitation, bring a witness with you. Do not go alone and expose yourself to another charge of abuse. Please contact our office to discuss this matter in greater detail. (718) 423-6999 Domestic Violence? In New York State, the current statistics indicate that one person is victimized by physical violence every three minutes. In most instances, family members or relatives perpetrate the violence. Abuse, which occurs within families and between family members, is called domestic violence. In order to qualify as a domestic violence case, the parties must be married or formerly married, engaged or formerly engaged to be married, or living together, or related by blood, marriage, or adoption, or have a minor child in common. Besides physical violence, domestic violence includes threats, emotional abuse, harassing telephone calls, stalking behaviors, and other forms of dominance and control. If you believe you are a victim of domestic violence, you should immediately call the police. Police will offer protection to you, and may direct the abuser to stay away from you. Police may also provide referrals to emergency shelters, victim services agencies, counseling, or the courts. In New York State, complaints of domestic violence can be filed in Family Court, Criminal Court, or both. In either court, an order of protection can be requested. An order of protection is a directive requiring the abuser to refrain from harassing you, threatening you, or otherwise intimidating you. Some order of protection include one or more restraining orders, which prevent the abuser from coming to your home or place of business, or calling you on the telephone. Other sanctions against the abuser can include but are not limited to jail time, mandatory attendance in an anger management program, and fines. Please contact our office to discuss these issues in greater detail. (718) 423-6999 Visitation Rights Grandparent Visitation? Often, grandparents are involved with caring for their grandchildren. Sometimes conflicts develop between grandparents and their children, and grandparents must seek court intervention to assert their rights to visit their grandchild. Grandparents have visitation rights in every state, although the laws vary in each state. In New York State, pursuant to Section 72 of the Domestic Relations Law, grandparents have the right to seek visitation rights, in the case of divorce, death of either of the child’s parents, or “where circumstances show that conditions exist which equity would see fit to intervene.” Some of those equitable circumstances include: The nature and basis of the parent’s objection to the visitation and the nature and extent of the grandparent - grandchild relationship. In all grandparental visitation matters, a two-step test is involved. One, to determine if there is standing to seek visitation, and two, if standing exists, whether it is in the best interests of the child to have visitation with the grandparents. If you are faced with going to court on a grandparent visitation matter, it is advisable to appear with an attorney who is experienced in grandparent matters. The parents of the child may have strong objections to the visitation, and often, grandparents in the situation find that they need a strong advocate to represent them. Please contact our office to discuss your needs and options in greater detail. (718) 423-6999 Supervised & Restricted Visitation? When a non-custodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between the parent and the child be supervised or restricted. Visitation may also be restricted or supervised if there is an incident or history of domestic violence. Supervised visitation means that an adult, most often someone other than the custodial parent, must be present at all times during the visit. Sometimes the supervisor will be a friend or family member, if both parents agree. If the parents cannot agree, the court will usually appoint a supervisor, or may order that the visitation take place at a neutral supervised visitation facility. This way, parents are able to pick up and drop off the child without seeing one another or interacting with one another. Supervised visits may be helpful in establishing a regular, dependable visitation schedule. They may also be useful to the court, because often these facilities can provide a written report to the Judge about how the visits progress. Supervised visits at such a facility usually are held once per week for one hour. If supervised visitation is ordered, but really not appropriate, you can petition to change the visitation to unsupervised visitation. If you need further information about supervised or restricted visitation, please contact our office. (718) 423-6999 Modification of Visitation? When parents with children divorce, one parent is generally given custody, while the other is granted visitation rights. In some cases, following the divorce, either parent may wish to modify their visitation rights, with respect to the visitation schedule, holidays, vacation periods, relocation, or other visitation issues. If the parties agree on the modification, then the agreement can be incorporated into a court order. If the parties are unable to reach an agreement, or if one party fails to honor the agreement, then it is becomes necessary to obtain a court order for the modification. If one parent wants a modification and the other parent does not agree, a petition must be filed with the court. The guiding standard the court uses in determining whether the modification should be granted is the best interests of the child. If the visitation issues involve relocation, where one of the parents decides to relocate to another geographical area, the court can review custody and visitation rights, in consideration of the best interests of the child. Visitation rights can be terminated or suspended for a period of time in rare cases where the custodial parent feels the child may be at risk. In some cases, where circumstances warrant it, the visitation will be temporarily changed to a supervised status. If you have questions about modification of visitation, or if you are faced with an issue regarding relocation, please contact our office to discuss your specific needs and to arrange for a consultation if necessary. (718) 423-6999 |
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