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Monday, October 20, 2014

Petitioning for Green Card of Same-Sex Spouse in New York City

Before last year, gay Americans married or betrothed to foreigners lived in constant fear that they would be separated by their spouse, who under federal law had no other legal tie or right to live in the country. While it's relatively easy to obtain a permanent resident visa (or green card) for a foreign-born spouse, it was not so simple for gay and lesbian couples. After running out of other options to keep their spouses here, many Americans made the choice to exile themselves to countries that would allow them to remain together.

That dynamic changed when the U.S. Supreme Court struck down the Defense of Marriage Act in U.S. v. Windsor. The New York Times reported soon after there were tens of thousands of citizens in bi-national same-sex marriages who would now be able to apply for a green card.

Absent the provisions in DOMA that created those major obstacles, the applications began almost immediately. Then- Secretary of the Department of Homeland Security vowed that her department would move swiftly to adapt to the  change, instructing U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of same-sex spouses in the exact manner as those filed on behalf of an opposite-sex spouse.

 Our New York City green card lawyers have since aided same-sex couples in obtaining green cards, securing the kind of stability which they have so long been denied. Many had been on the brink of being forced to leave the country when the DOMA decision came down. Others have been eager to return after exile. Some were in the midst of fighting deportation orders. As general policy, the Obama administration halted enforcement of deportation orders involving same-sex spouses two years prior to the DOMA decision, but those orders still remained opened. Many have since been closed, but some couples are continuing to sort through the red tape the order created.

The ICS has kept a list of same-sex couples who green card petitions were denied in 2011 and 2012, and those denials were expected to be reversed without having to present new applications, assuming no new issues have arisen. Same-sex couples who had not previously been denied can expect to move through the system at generally the same pace as opposite-sex couples.

The decision has been life-altering for many couples. For example, one man had delayed his having to leave by 15 years with constant student visas. He completed three master's degree programs and was working on his doctorate when the DOMA decision was made. Now that he knows he'll be able to stay in the U.S. with his husband and legally get a job, he's eager to finish his studies.

The form for already-married spouses to file is Form I-130. For those who are engaged and hoping to marry a foreign national, they can petition to have their fiance or fiancee stay with Form I-129F. No longer will either of these requests be denied on the same-sex nature of one's marriage.

It's worth noting also that it doesn't matter whether married spouses currently live in a state or country that doesn't recognize the union, so long as the marriage was legally valid as issued.

Additionally, same-sex marriages, just like opposite-sex marriages before, will reduce the residence period required for naturalization. Generally, the waiting period is five years following admission to the U.S. as a lawful permanent resident. However, those in a marital union will now only have to wait three years, if during that time you have been living in a "marital union" with a U.S. citizen spouse. In other words, same-sex marriages are now treated exactly the same as opposite-sex marriages in this regard.

For help with same-sex immigration cases in New York City, call our offices at (718) 864-2011.

Additional Resources:

For Gay Immigrants, Marriage Ruling Brings a Path to a Green Card, June 27, 2014, By Julia Preston, The New York Times

More Blog Entries:

False ACS Allegations in New York Can Weigh Heavily on Families, Oct. 2, 2014, New York City Family Law Attorney Blog


Tuesday, October 14, 2014

In re Jaden E. - Missed School Could Lead to Alleged Parent Neglect, ACS Involvement

Raising children, especially teenagers, is rife with challenges. As anyone with a 15-year-old knows, there are few things you can "make" them do if they are dead-set against it.

But it's important to note as we are in the midst of a new school year that even if you can't force your child to go school - or be there on time - repeated unexcused absences or reports of tardiness can lead to involvement from New York City's Administration for Children's Services.

That could result in a more in-depth investigation of your home life by social workers. Just in and of itself, "educational neglect" is considered worthy of sanctions under Section 34 of New York State's Social Service Law. Part One of Article 65 of the New York State Education Law, Section 3205(1)(c) requires children must attend full-time instruction from the time they are 6-years-old until the child is 16. The board of education can require minors from 16 to 17 to attend full-time school if they are not employed.

Our Brooklyn ACS defense lawyers recognize that this statute leaves very little room for exception, even when children are known to have behavioral problems, mental health issues or substance abuse struggles. Many times, what you and your child need is assistance - not the threat of separation, which only serves to compound the anxiety. We are committed to helping parents move past allegations of educational neglect.

In general, there are three necessary elements required to prove educational neglect in New York on the basis of absenteeism. These are:

  • Excessive absence from school by the child, with confirmation that these absences are unexcused;
  • Reasonable cause to suspect parent is aware or should have been aware of the absenteeism and the parent either contributed to the problem or failed to provide a minimum degree of care;
  • Reasonable cause to suspect educational impairment or harm to the child or imminent danger of such harm.

Of course, definitions for terms like "reasonable" are subject to interpretation, and that's where an experienced ACS defense lawyer can help.

The recent case of In re Jaden E. reveals what can happen in one of the worst case scenarios for a parent. Although a California case, the basic legal premise is still relevant here.

In this case, the child was 7-years-old, and information obtained by the local human services agency indicated he was chronically tardy or absent. Additionally, his behavior had deteriorated significantly. He was constantly disruptive. He refused to go to class. He threw tables and chairs. He wouldn't complete class assignments. He kept leaving school grounds. He peed in a bathroom sink. He growled when confronted for misbehavior.

The school had recommended his mother attain mental health services for him, but she reportedly had not done so. School staff suspected she was struggling with substance abuse, which affected her ability to effectively parent him.

At one point, she took him to the police department and said she "couldn't handle him" any longer. She eventually agreed to take him back, but later left him with his father for several days. Later, the local child services agency received information the mother had binged during that time on drugs, and had recently admitted to using methamphetamine.

Ultimately, the juvenile court terminated the reunification services the mother had been receiving to get her son back. She appealed, but the decision was upheld.

Obviously, there were other issues going on in this case, but the bottom line is that educational neglect is taken seriously by schools, social service agencies and the courts. We understand you will need someone to advocate on behalf of you, the relationship you share with your child and your child's future.

To defend a report of educational neglect in New York City, call our offices at (718) 864-2011.

Additional Resources:

In re Jaden E. , Sept. 19, 2014, California Court of Appeals, First Appellate District, Division Four

More Blog Entries:

Adrian Peterson Case and the Legality of Corporal Punishment, Sept. 25, 2014, Brooklyn ACS Defense Lawyer Blog


Sunday, October 12, 2014

Uncontested Same-Sex Divorce in New York Easier Than in Other States

Across the country, same-sex couples have been winning victories when it comes to the right to enjoy some or all the benefits that a heterosexual couple would - including the right to marry, adopt and raise children, receive tax breaks and share health insurance.

Varying state-level actions have resulted in a legal patchwork of laws that vary depending on where you live. One side effect of this is inconsistent divorce laws. People have fought so hard for the right to marry, but if they don't reside in a state like New York that recognizes same-sex marriage, they may be stuck in a desperate state of bitter "wedlock."

The good news for New Yorkers is that even if you and your partner were legally married or entered a valid same-sex civil union or domestic partnership somewhere else, you can get divorced here without much of a hitch. The risk is when those married in New York move out-of-state to a place that doesn't recognize same-sex marriages. If the couple no longer retains residency in New York, they will be unable to file for divorce here.

Our  same-sex uncontested divorce attorneys know that an uncoupling between same-sex partners largely follows the same path as heterosexual couples. That is, these cases can proceed relatively uncomplicated assuming you initiate a divorce and your spouse is not contesting any aspects.

Of course, like any other split, matters can become complicated if you share children under 21 or if there are disputes as to the division of property. Sometimes, these matters can be even more complex in a same-sex union, particularly if a child biologically only belongs to one parent or if there are significant assets to divide.

But generally, divorcing same-sex couples in New York will face the same issues to which any other couple is prone. Problems usually arise when they move.

For example, if a couple marries in New York and then moves to Texas. A judge there recently ruled that because the state doesn't recognize the marriage, it has no jurisdiction to void it or grant a divorce.

Parties in that case have filed an appeal, which is pending. Fortunately, there are no children involved in that split, although we recognize they are involved in many other instances.

As it stands, homosexual marriage is allowed in 19 states, plus the District of Columbia. However, even in some of those places, laws governing divorce haven't kept pace, leading to calls for national reform. Some states have responded by loosening residency requirements necessary to obtain an unconstested divorce. As of right now, uncontested divorce between same-sex couples living elsewhere can be granted in Vermont, D.C., Delaware, Minnesota, Hawaii, Illinois and California, assuming the couple can travel there for the proceedings. However, those courts have declined to take on cases for non-residents where there are disputes regarding issues like child custody, visitation or spousal support are in question.

In the dozen other states that allow same-sex marriage - including New York - residency is required for a divorce to be granted. The New York residency requirement for divorce is one full year preceding the action. However from that point, an uncontested divorce can be completed in a matter of weeks.

Because same-sex divorce can raise some unique challenges, even when both parties agree to separate, it's important to consult with an experienced attorney.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Divorce law out of synch with same-sex marriage, Sept. 30, 2014, By Leanne Italie, Associated Press

More Blog Entries:

In the Matter of Serodio & Perkins - A Lost Prenuptial Agreement, Sept. 10, 2014, New York City Same-Sex Uncontested Divorce Lawyer Blog


Sunday, October 12, 2014

Starrett v. Starrett - Valuation of a Family Business in Divorce

Divorce is not known for bringing out the best in people, which is not great news for your family business. But you both have an interest in ensuring the breakup doesn't ruin your livelihood, and hiring an experienced family law attorney who can help you keep a level head at a time when emotions are running high is important.

One of the key things you want to do is figure out - or perhaps negotiate - the future of the business. That means, are you going to continue to co-own it? Are you going to jointly sell it? Will one party buy out the other?

Before reaching an agreement, you may want to consider waiting until the formal business valuation is complete. This is the process by which outside experts determine what the company is worth, what is projected to be worth, what share belongs to each spouse and all the relevant tax implications.

Consider that in many marriages, the family business may be the most valuable asset in the marriage. It may also be the most illiquid asset, meaning it's not easily sold or exchanged without substantial loss in value. This is why it is often such a point of contention. Our experienced Bronx divorce lawyers can help.

An example of how these cases can unfold was shown recently in Starrett v. Starrett, which was reviewed recently by the Maine Supreme Court.

Here, according to court records, the pair married in 1980, raised two children into adulthood together and then separated in 2010 after 30 years of marriage. It was an acrimonious uncoupling, with the wife seeking an order for protection of abuse and the husband seeking a protection from harassment notice. Ultimately, however, the pair managed to work out most of the details of asset division prior to appearing before a judge. They even worked out a spousal support arrangement, payable from husband to wife.

The one issue of dispute was the family business, a drywall company the husband started and worked for since the 1990s. Although both parties had benefited from the company, it was the husband who had worked for the firm through its entirety.

At its peak, the company employed 40 workers and grossed several million dollars annually. However, it had been struck hard by the economic downturn, and both parties disputed what it was actually worth. They jointly hired an expert to issue a determination. However, the expert had a tough time reaching an actual figure, indicating the real value in the company was the husband's willingness to work.

Still, he affixed a value of $400,000. Husband disputed, saying he would sell it for half that. Wife insisted it was worth at least $50,000 more. The court disregarded the expert witness's report and found the business to be essentially worthless, as it calculated the debts to be greater than the assets. It awarded the company (and all related debts) to the husband.

Wife appealed, arguing the court had incorrectly calculated the value.

On appeal, the Maine Supreme Judical Court agreed that the trial court was wrong. In fact, the company did have a net positive value (albeit a relatively small one). Still, it was not expected to return to the pre-recession size it once held, and its greatest value was still the husband's willingness to work. Therefore, the court found the error did not otherwise prejudice the wife and allowed the trial court's ruling to stand.

If you are contemplating a divorce in the Bronx, call our offices at (718) 864-2011.

Additional Resources:

Starrett v. Starrett, Sept. 18, 2014, Maine Supreme Judicial Court

More Blog Entries:


Saturday, October 11, 2014

In re Alfredo J.T. v. Jodi D. - Brooklyn Child Custody Claim Damaged by Disparaging Other Parent

It's no secret that divorcing couples aren't generally fond of one another. There is a reason they are splitting, after all.

However, there is good reason to keep those statements to yourself - especially where your children and social media are concerned. No matter how true and justified your complaints, voicing them to children can be damaging to them emotionally. Further, family courts - weighing the best interests of children - will take into account the extent to which they've been dragged into their parents' troubles.

Parents can further damage their standing in court if they blast their ex on Facebook, Twitter or some other medium. In those cases, evidence is tangible, and your ex will be allowed to bring those samples to court to show the judge.

Our Brooklyn child custody lawyers know evidence of this kind of "trash-talking" can be given even greater weight than other relevant factors.

It was this kind of disparagement that altered a child custody arrangement between two parents in the recent case of In re Alfredo J.T. v. Jodi D. before the New York Supreme Court, Appellate Division, First Department. In this case, the mother appealed a family court's order of sole legal and physical custody of the pair's 5-year-old daughter.

The appellate court affirmed the lower court's order, finding it had appropriately weighed all relevant evidence - most notably the fact that the mother had deliberately and continuously talked badly about the girls' father in her presence. The court found this caused the girl much anxiety, which the mother did not act to abate.

Further, appellate court found credible the lower court's finding that the mother routinely impeded the girl's visitation with her father, which the court deemed contrary to the best interests of the child.

Of course, there were other factors too. The court found the father was better able to meet the child's educational and medical needs. While in her mother's care, the girl developed "bottle rot," which is a form of tooth decay in infants and young children who consume sugary drinks. The condition required extensive dental treatment. Further, the child was still wearing diapers at age 5.

The court found that despite the child's express desire to live with her mother, she was in a more stable environment in staying with her father, stepmother, stepsister and infant half-brother. Additionally, she will be allowed regular visitation with her mother and older half-sister.

Part of the reason the courts allow this to hold such weight is because of the general underlying belief that a child who receives the care and attention of both parents will be more likely to thrive. When parents divorce or break up, judges want to know that if a child is placed with one parent, he or she will not be deprived of affection from the other. That means the court needs assurance that the custodial parent is going to cooperate in facilitating a healthy relationship between the child and other parent.

Bear in mind before you speak that it's not your spouse who is most likely to suffer as a result of your disparaging comments - it's your child and, in the custody case, you.

If you are fighting for child custody in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re Alfredo J.T. v. Jodi D. , Sept. 25, 2014, New York Supreme Court, Appellate Division, First Department

More Blog Entries:

In re the Marriage of Evans: Be Cautious of Pre-Disclosure Agreements, Sept. 15, 2014, Brooklyn Child Custody Lawyer Blog

Wednesday, October 8, 2014

How to Win your Child Support Case in Family Court, Part 2

 

In Part one of this series I discussed the Initial de novo child support filing in New York Family Court. In this proceeding you are asking the Family Court to make a child support determination.  The Child Support Standards Act utilizes a formula in determining the Presumptive Amount of Child Support. From this presumptive amount you can determine the presumptive amount of child support the non-custodial parent is to pay.

Presumptive Amount of Child Support Formula

 

 

Custodial Parents Yearly income + Non-Custodial Yearly Parents Income = Combined Parental income

 

Non-custodial parents yearly income divided by Combined Parental Income = Non-Custodial Parent’s Pro rata percentage share

 

Non-Custodial Parent’s Pro Rata Percentage Share multiplied by Combined Income = Presumptive Amount of Child Support for Non-Custodial Parent for the year

 

If you want to figure out the non-custodial’s parents amount per month you divide the Non-Custodial yearly amount by 12, by 52 to determine weekly amount and by 26 to determine bi-weekly amount.

If you do not feel like doing Algebra, you can always go to the Child Support Standard’s Chart to determine the appropriate amount.

The Court applies the non-custodial’s pro rata percentage not only to income but also to determine the parental share of ad ons like medical insurance, day care expenses and unreimbursed medical expenses. The Court also has discretion to have non-custodial parent pay for private school and college expenses pursuant to their pro rata share.

Determining Income

When both litigants are wage earners with W2s, calculating income is rather easy.  When there is a self-employed litigant involved the child support determination may be more complicated. The Court will need to determine what the total Gross Income of this self-employed person is.  This is much more apparent with a person receiving paystubs. If you believe respondent’s income is not accurate it’s your (petitioner’s) burden of proof to prove income should be higher. The court can also consider other factors in making its determination like social security income, disability income, investment income perks, rental income etc.

Once income is determined, the Court will deduct FICA, other child support payments being made and any maintenance being paid pursuant to court Order from the non-custodial parent’s gross income. You will need to bring to Court any Orders that you want to have deducted from income. Voluntary payments of the above are not deducted.  If you are self-employed the Court will also deduct reasonable unreimbursed employer business expenses.  The self-employed must bring in good proof of these expenses.

The Court is allowed is allowed to deviate from presumptive amount but must calculate the presumptive amount and provide sufficient reasons under statute for the deviation. This applies even to out of court deals that are brought to court and that serve as a basis for a child support order. The Court also has the authority to consider if the presumptive amount is unjust.  This determination is also based on statutory factors.

Once a child support determination is made, the custodial parent has the option to receive payments directly from the payee of the support or elect to have the payments collected through the Support Collection Unit (SCU). The benefits of SCU collection is that it keeps track of money paid and any arrears. It also makes it much more difficult for a non-complaint party to avoid paying because SCU, through an Income Deduction Order, takes payment directly out of the payee’s paycheck. A self-employed individual will have to pay SCU directly.

Any arrears of child support will be calculated retroactively from the date of filing of the initial petition. The Court cannot calculate arrears prior to the filing date even if the non-custodial parent hasn’t paid support for a long period of time prior to filing.

If you have any questions or are looking to hire a Brooklyn, New York Family Court Attorney to help you with your child support case, call me at The Gilmer Law Firm, PLLC.  Thank you reading this article.  Please click here if you want to sign up for my newsletter.  


Wednesday, October 8, 2014

Rizzo v. Rizzo - New York City Divorce and Divisions of Annuities, Pensions and Debts

Errors in the divisions of annuities, pensions and debts in a Brooklyn divorce can have costly implications for the party slighted. A person could lose out on decades of support to which they were entitled, or be strapped with substantial payments to which they did not agree, if a divorce attorney does not thoroughly review each of these elements prior to reaching a settlement agreement.

Even still, sometimes the family courts make mistakes. That was apparently the case in Rizzo v. Rizzo, weighed on appeal by the Supreme Court of the State of New York Appellate Division, Second Judicial Department. Here, defendant ex-wife appealed the divorce settlement reached in 2012 by the Supreme Court in Duchess County, which ruled after a non-jury trial that plaintiff was entitled to 100 percent of an annuity and pension as separate property, and also assigned her responsibility for debts she says was solely her former husband's.

New York strives for equitable division of marital property and assets, meaning the split will not be equal, but it should be fair. One of the first determination that has to be made is whether property or assets should be considered "marital" or separate."

Our Brooklyn divorce attorneys know that generally, marital property includes everything you earned or acquired during the marriage, while separate property is that which belongs to only one spouse, usually because it was owned prior to the marriage, was received by a gift to one spouse or was acquired solely by one spouse during the marriage not for the benefit of the other.

In this case, the appellate court found a modification was in order, as the lower court improperly deemed the annuity and pension the separate property of plaintiff husband, though it did hold debts accrued by plaintiff for surgery during the marriage should be shared by both parties. Plus, the lion's share of the annuity would still go to the plaintiff, as it was obtained following a personal injury action in which he was severely injured and rendered unable to work.

According to court records, the pair had been married for several years when, in 2001, husband suffered an on-the-job accident on a construction site, for which they sued the general contractor. Both husband and wife were a party to that action, named as plaintiffs, with wife holding a specific claim for loss of consortium. The case was settled prior to trial, granting a lump-sum payment plus monthly sums of $3,200 for 30 years, to be deposited into an annuity. However, there was never an indication of which portion of that settlement was for wife's loss of consortium.

When the couple divorced, the lower court held this was separate property of the husband. The appellate court reversed, awarding wife 10 percent of this fund. Plaintiff still received most of this fund because he is permanently disabled, unable to earn an income now or in the future, whereas the defendant was employed and has a future income-earning capacity. However, the court did reserve the right of defendant to collect the remaining amount of annuity in its entirety in the event of her former husband's death.

With regard to the pension, the appellate court found this too should have been considered marital property. But the court declined to determine how much should go to defendant, and remanded the case to the lower court for a determination on this point.

On the issue of shared debt, the appellate court affirmed the lower court's finding that both shared responsibility for medical bills that accrued due to husband's need for surgery during the marriage.

Given the complex nature of asset division, it's imperative that individuals seek experienced legal counsel before agreeing to a divorce settlement.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Rizzo v. Rizzo, Sept. 24, 2014, Supreme Court of the State of New York Appellate Division, Second Judicial Department

More Blog Entries:


Sunday, October 5, 2014

Court to Weigh Whether Methadone During Pregnancy Equals Child Abuse

In a case closely watched by child safety advocates across the country, the New Jersey Supreme Court is slated to decide whether a pregnant mother who underwent methadone maintenance therapy during gestation should be found guilty in family court of abuse and neglect of her infant son, who was born dependent on the drug.

In Division of Youth and Family Services v. Y.N., both the trial court as well as the state's appellate division have ruled the mother's conduct was a form of abuse and neglect, given the child was born with withdrawal symptoms characterized as severe. He had to be hospitalized for an additional 47 after he was born.

Our Brooklyn ACS defense attorneys recognize the legal reasoning and outcome here could be important for local courts in determining how to proceed in similar cases.

While other courts have held mothers who abuse drugs during pregnancy can be held accountable in criminal and family courts, this case is somewhat unique in that the mother's use of the drug was under the supervision of a doctor. At the time she conceived, she was abusing heroin and painkillers. When she learned she was with child, she began seeing a doctor. Several months later, she started on a methadone treatment program, and entered into a medical facility.

Physicians and other medical staffers warned her that if she immediately stopped using all substances, she could have a miscarriage. Not wanting to risk losing her child, she reportedly believed the best option was to undergo chemical dependency treatment under the care of a doctor.

However, both lower courts held it did not matter whether the drugs were taken legally or illegally. As the woman's criminal defense attorney would later argue to the high court, the appellate court's decision effectively held "medical treatment equals harm." Here, the mother had been told the safest course of action was methadone treatment.

Chief justices posed several possible scenarios:

Would a pregnant woman avoid liability for illegal use of drugs if a doctor told her to continue taking them because withdrawal would be too dangerous?

Would a mother who used methadone on her own, without consultation of a physician, be similarly protected?

Interceding as amicus, the National Advocates for Pregnant Women argued the woman should be cleared of any criminal wrongdoing, asserting methadone treatment overseen by a physician was reasonable for someone in her circumstances.

However, prosecutors representing the state's Division of Child Protection and Permanency, requested the finding be upheld. They say at its core, the case is about the serious risk of harm to the fetus. It was noted the mother had a six-year history of drug abuse, and used other illegal substances throughout part of her pregnancy. The prosecutor asserted to the court the mother was unwilling or unable to provide necessary protection to the child. She indicated other factors played into the final determination of abuse and neglect, but conceded the mother's methadone use was part of it.

It's worth noting there are methadone treatment centers in New York that specifically provide care to pregnant women.

Those who have undergone this treatment and are now enduring an ACS investigation should contact an experienced family law attorney as soon as possible.

Our Brooklyn ACS defense attorneys can be reached at (718) 864-2011.

Additional Resources:

Case Tests Whether Methadone Treatment During Pregnancy is Abuse, Sept. 10, 2014, By Michael Booth, New Jersey Law Journal

More Blog Entries:


Saturday, October 4, 2014

How to Win your Child Support Case in Family Court, Part 1


This is my first article in a series of articles regarding Child Support in New York State. In my years practicing as an attorney I have won many child support cases.  My knowledge of the Child Support process was key in these victories.  These articles will tell the reader many of the things you need to know to win your child support case. 

There are three types of Child Support proceedings that can be brought in either Family Court or Supreme Court. This article will only be focusing on the New York Family Court process. The topic I am discussing today is De Novo or Initial Child Support Proceedings.

Types of Family Court Proceedings

The three types are: initial de novo proceedings, modification actions and enforcement proceedings.  The Family Court also has jurisdiction over Spousal Support cases which should not be confused with spousal maintenance cases which occur in Supreme Court actions.

The first step is to file a petition in Family Court. If you live in New York City you can file a petition in Brooklyn, Bronx, Queens, Manhattan or Staten Island as well as the other counties in the State (click on the links for the addresses of the respective courts).   You can go to the Office of Court Administration website to find the application. The application will ask you for a few things including the biographic information for you, the child’s parent and your child.  Also the application will ask you what kind of relief you are seeking. There is no filing fee in Family Court.

Initial De Novo Proceedings

In an initial de novo proceeding there is no order of support or judgment of divorce directing support in place.  You are asking that the Court establish an Order.  Prior to filing this initial proceeding, paternity must be established. At times, a party seeking support will have to file a Paternity proceeding in Family Court prior to filing an Initial de novo Petition.  If the parties are married then no paternity proceeding will be needed because the other parent is presumed to be the parent of the child. If no marriage, then there must be an acknowledgement of paternity or order of filiation in place to avoid filing a Paternity hearing. The Court cannot make a decision on child support without paternity being established.

In this Initial petition you must allege the relief you are requesting (i.e. child support), but there is no need to set the amount you are looking for.  You can say that you are seeking support pursuant to the Child Support Standards Act (CSSA) which is by law the presumptive amount of child support that needs to be paid. If you need more money than the presumptive amount you should state this in your petition.

In order to establish the correct child support amount the Court must establish what the combined parental income is.  The court will use the combined parental income to determine the presumptive pro rata amount of child support that is due pursuant to the CSSA and to determine the pro rata amount for ad ons like uncovered medical expenses, insurance and day care.

Determination of the Presumptive Amount of Child Support

The Court determines the presumptively correct amount of Child Support pursuant to the CSSA. This is done by multiplying the combined parental income by certain statutory percentages.  These percentages are determined by the number of children the two parents have.  The CSSA imputes 17% for one child, 25% for two, 31% for three and 35% for four children.  The CSSA has an income cap of $141,000. If the combined parental income is above this then the court in its discretion can deviate from the above percentages.

In my next article I will tell you how to show you how the presumptive amount of child support formula is determined by using a very simple formula.

If you have any questions or are looking to hire a Brooklyn, New York Family Court Attorney to help you with your child support case, call me at The Gilmer Law Firm, PLLC.  Thank you reading this article.  Please click here if you want to sign up for my newsletter


Thursday, October 2, 2014

False ACS Allegations in New York Can Weigh Heavily on Families

It is illegal in New York City to make a false report of child abuse to the Administration of Children's Services (ACS). However, that doesn't stop people from doing so. Some may genuinely believe they witnessed a child placed in harm's way. Some encounter ambiguous conduct and draw mistaken conclusions.

There are also unfortunately individuals who intentionally make false claims, usually with the goal of hurting the adult or adults in the situation. It could be a spurned lover, a domestic violence abuser or an ex fighting a bitter custody battle. Even foster care and adoptive parents become the target of these calls, stemming from the biological parents'  inability to claim any other connection with their children. Usually, the accused will never learn who made the report, as it is all done confidentially. This is another reason why accused parents are at a disadvantage in countering these claims.

Our Brooklyn ACS defense attorneys know the truly unfortunate aspect of false reporting, in addition to the difficulty it places on the unfairly accused and their families, is that it draws valuable resources away from those children who are truly in danger. It diverts help from the children who need it most.

The system was built to encourage people to speak out and to do so freely whenever there is a possibility children might be harmed. ACS officials, quoted in this October 2013 report, said they do not track incidents of false reports, so were unable to give even a rough percentage. However, we do know that about 6 out of 10 reports return unfounded. Officials say that doesn't necessarily mean the false reports were malicious, but they have meted harm on these families nonetheless.

These instances are more likely to arise from the city's poorest neighborhoods, like East New York and Bedford-Stuyvesant. Officials say children are removed more frequently from the eight poorest boroughs than in the other 42 neighborhoods combined. Someone with an axe to grind knows full well very little evidence is necessary to set off an investigation.

Even more troubling, ACS doesn't flag instances where repeated claims against the same individual or family have proven untrue. They don't want to risk the possibility the 13th report is real, and overlook it.There is a statute requiring ACS to report false claims to prosecutors, but rarely do these cases actually land in court.

The impact of these reports is most greatly felt in situations where the parent actually is struggling with a serious issue, such as depression, domestic violence or illegal immigration. These real problems, combined with a false report of neglect or abuse, might cause child welfare workers to remove the children, rather than offering support to the family in what would be in the best interest of everyone involved.

A false ACS report can be terrifying for a family. But you should not have to go through it alone. Our ACS attorneys are experienced in challenging flimsy evidence and ensuring the truth will prevail. Too often, parents make the mistake of believing they will be vindicated simply because they are telling the truth. However, this is not always the case, and given what is at stake, parents can't afford to be passive. Immediate action is imperative. 

A domestic relations lawyer can help you safeguard your interests, your reputation and your family as you counter these claims.

For help confronting a false ACS report in New York City, call our offices at (718) 864-2011.

Additional Resources:

False Abuse Reports Trouble Child Welfare Experts, Oct. 4, 2014, By Rachel Blustain, City Limits

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Monday, September 29, 2014

Doan v. Wilkerson - Leave No Aspect of New York City Divorce Overlooked

Depending on the length of the marriage, number and age of children and financial assets at stake, separation and divorce can be arduous. We recognize the toll the process can take on clients. However, our Brooklyn divorce lawyers also recognize the importance of being thorough.

 If some aspect is overlooked and not negotiated, it may be difficult if not impossible to alter once the ink has dried on the divorce settlement. There are sometimes options for modification of the agreement, but usually, this requires a showing of change in circumstance. For example, you lost your job and can no longer pay the agreed-upon child support amount. Usually, this pertains to child custody, child support and spousal support maintenance.

Most other aspects would have to be the subject of an appeal. This can be a drawn-out process, whereby you are asking the court to overturn the decision of the lower court. In these cases, usually you need some kind of fundamental inequity, proving the agreement unfair. Even then, if you had reason to know of that fundamental inequity at the time of the agreement and did not address it, the court may not consider your request.

Bear in mind also that for an appeal, your window of opportunity may be brief. There are no "statute of limitations" on divorce agreements, but the time you have to file a motion to reconsider and/or appeal may be short. The sooner you consult with an attorney, the better.

A good example of what can happen when key elements are overlooked in a divorce can be seen in the recent case of Doan v. Wilkerson, weighed by the Nevada Supreme Court.

In this case, the pair were married in 1985. The husband worked for the Federal Aviation Administration, and when he retired after 23 years on the job, he received numerous retirement benefits as a federal employee.

Prior to his retirement, the parties filed for divorce, seeking equitable division of assets. As part of this, the pair exchanged financial affidavits laying out respective income, monthly expenses and marital assets. Although no account was specifically listed by name, both parties indicated they owned retirement accounts and/or pensions, and listed the contributions as a monthly expense.

In a pretrial motion, wife listed federal retirement benefits accrued during the marriage, and husband conceded to this fact.

Just before trial, counsel for both parties withdrew from the case (it's not clear why) and both parties agreed to represent themselves at the scheduled trial before a judge. During the settlement conference (at which time an attorney would be needed most) the pair agreed to the terms of division of property and debt. The district court issued a final degree, prepared by husband and approved by wife. That was in late summer 2003.

Problem was, the decree made no mention of husband's federal retirement benefit.

Six years later, wife filed a motion for division of an omitted asset when her new lawyer learned she wasn't receiving her fair share of her ex-husband's retirement benefits. She indicated they had been unfairly omitted, and she sought collection and also reimbursement of past benefits.

The district court denied her motion following two hearings, finding the benefits had been disclosed during discovery hearings, meaning wife knew of them (amounting to "full and fair disclosure"), and failed to ensure they were included in the settlement.

Wife filed a motion for reconsideration, which the district court granted. At that time, the court indicated although full disclosure had occurred, those retirement benefits were only left out due to mutual mistake.

Husband appealed, and Nevada Supreme Court reversed. The court found an ex-spouse who fails to file a motion for relief from a divorce decree within six months (per the law in that state) is not entitled to relief except when "exceptional circumstances" would justify such action. Further, under the facts of this case, wife was not entitled to equitable relief because the issue of retirement benefits was adjudicated during the previous divorce proceedings.

This means the wife will likely lose out on tens of thousands of dollars - if not more - on retirement benefits over the rest of her life. The money saved on not having an attorney review the agreement likely now seems minimal.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Doan v. Wilkerson, June 26, 2014, Nevada Supreme Court

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