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Family Court

Friday, December 26, 2014

Incarcerated Parents in New York May Lose Parental Rights

The Bureau of Justice Statistics reported in December 2013 there were more than 1.5 million prisoners in state and federal prisons throughout the country.  In New York State, roughly 32,000 are held within the state jail system and another 56,000 are incarcerated within the state prison system. There are also 122,000 offenders on probation and another 40,000 on parole.

What's more, the BJS reports some 52 percent of state inmate and 63 percent of federal inmates have minor children. In fact, the percentage of minor children with an incarcerated increased by nearly 80 percent between 1991 and 2007. This is estimated to be around 2.7 million children, with the majority having a child age 4 or younger.

 This poses some unique and sometimes overwhelming challenges for families - and by extension, the family courts. While most social service agencies will seek to preserve and restore the parental relationship for parents facing shorter sentences, for repeat offenders and those facing longer terms, the other parent or guardian may seek a finding of abandonment and termination of parental rights. This is also true when the crime of which the offender is convicted was against children or was especially violent.

Our New York City family law attorneys recognize the process of seeking termination of parental rights due to incarceration can be an arduous one.

The federal Adoption and Safe Families Act allows the action to be taken if a child has been in foster care for 15 of the most recent 22 months. This does not apply to children who living with friends or family members (known as private placement). Still, some find this especially troubling because, according to the Annie E. Casey Foundation, the average prison term for most parents - even those accused of non-violent drug or property crimes - exceeds 15 months. The law does say, however, termination must be based on the court's finding of a "compelling reason." Simply asserting this lapse of time isn't going to be enough.

Typically, the court must issue a finding of neglect or abandonment.

This was the issue recently before the New York Supreme Court, Appellate Division, First Department in In re Z.J. Lewis.

The father was incarcerated for nearly two years when child welfare authorities sought a finding of abandonment as related to the father. The court granted this request, finding the father's incarceration did not excuse him from parental obligations. Further, the child welfare agency was not required to show it used diligence to reunited the family, but there was no indication the agency in any way hindered communication.

State law allows termination of parental rights of incarcerated parents when the parent fails on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or arrange visits with the child.

However, state law does allow reinstatement of parental rights if a permanent placement of the child is not found within a certain time frame. Again, though, this is only true when the child is in foster care while the parent is imprisoned.

Our experienced New York family law attorneys are committed to helping you achieve the goals that will best benefit your children and you - whether that is preserving the relationship between an incarcerated parent and child or severing the ties of a toxic or non-existent relationship.

Call our New York City family law offices at (718) 864-2011.

Additional Resources:

In re Z.J. Lewis, Nov. 25, 2014,  New York Supreme Court, Appellate Division, First Department

More Blog Entries:


Monday, December 15, 2014

Constructive Emancipation in New York City Child Support Law

In the state of New York, parents have a legal duty to support their children until the age of 21, unless they are sooner emancipated.

This "doctrine of constructive emancipation" is derived from the Child Support Standards Acts and corresponding case law in New York.

Some of the circumstances under which children might become emancipated prior to turning 21 might include:

  • The child gets married
  • The child joins the military
  • The child becomes economically independent
  • The child voluntarily and without cause abandons the parent's home, against parent's will, for purpose of avoiding parental control

Our Brooklyn child support attorneys understand that in cases reflecting that last circumstance, courts have consistently ruled children (who are technically also legal adults) forfeit their right to demand support in these circumstances.

While cases asserting economic independence can be fairly straightforward (it's easy enough to prove a child got married), it's a bit more difficult when the claim is abandonment. It's more of a subjective determination.

In cases where a custodial parent sets certain reasonable rules and the child leaves in order to not to have to follow those rules, courts have found this can amount to "abandonment" for these purposes. But non-residential parents can also claim abandonment if the child unreasonably refuses all visitation and contact. If the child is under 18, courts will often look closely to examine whether it is at all possible to reconcile the relationship. If it is not, only then will constructive emancipation be considered.

Recently, the New York Supreme Court, Appellate Division, First Department, weighed just one such case, reviewing dismissal of a father's petition seeking child support from the child's mother. In Matter of Jose R. v. Yvette-Ortiz M., custodial parent (father) sought to compel mother to pay support for their 18-year-old son.

However, the lower court dismissed his petition,finding he'd voluntarily and without good cause abandoned his mother. She presented evidenced, later also reviewed by appellate court, showing that for a full year, her son refused to see her or speak with her. He offered no explanation and declined to speak before the court.

During this time, mother made numerous attempts to repair and maintain a relationship with her son. She presented evidence of phone calls, letters, cards, e-mails, social media messages. In no case did he respond or give any indication of why he was silent.

Although the court would not speculate on the cause for son's silence, the judge did rule there was no indication the mother had prompted this deterioration in the relationship. As such, the appellate division affirmed the lower court.

These cases are complex, and certainly, we understand few parents take pleasure in this type of action because it often means their relationship with their children is not in a good place. They worry whether it will ever be again. And yet, they cannot continue to send money to someone to whom they never see or speak. Courts generally will not order reimbursement for any past payments, but they will halt them from that point forward.

Note, however, the courts have clearly stated that in cases where communication breakdown is caused by the parent, it's unlikely child support will be terminated.

In either case, allegations alone are not likely to be enough when it comes to proof of constructive emancipation. Our attorneys will help ensure you are prepared to make your case effectively before the court.

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

Additional Resources:

In Matter of Jose R. v. Yvette-Ortiz M., Dec. 2, 2014, New York Supreme Court, Appellate Division, First Department

More Blog Entries:

Retaining Inheritance in New York City Divorce, Dec. 1, 2014, Brooklyn Child Support Lawyer Blog

Wednesday, December 10, 2014

Wong v. Liu - Showing Up for Court in Divorce Case Critical

In any court case - civil or criminal - it's important to show up.

In criminal court, failure to appear can result in a warrant for arrest, additional jail time and fines. In a civil case - including divorce - you likely aren't going to be jailed for skipping out, but repercussions could still be quite severe in terms of asset division, support payments and parenting time arrangements.

There may be situations in which your divorce lawyer can appear in court on your behalf. However, there are times it is imperative for you to be there as well.

We certainly understand a divorce is draining. Court dates also might conflict with work or child care arrangements. However, if absence from court isn't excused, you may find you are stuck with the hand you are dealt. If you're not there to speak on your own behalf, the judge is only hearing one side of the situation - and it's probably not favorable to you.

Our Brooklyn divorce attorneys understand this was recently the scenario in Wong v. Liu, before the Supreme court of New York, Appellate Division, Second Department. Here, a father appealed the decision made by the judge on a day he failed to appear in court.

The court, upon his failure to appear, granted his ex-wife's petition for sole legal and physical custody of their child.

The pair had been involved in what appears to have been an arduous custody battle. In the course of this, the mother testified and was cross-examined on several dates. On the day of the final hearing, the father did not appear. His attorney contacted him, and was told he "did not wish to appear." That message was conveyed to the court, whereupon the court awarded the mother full custody.

Soon after, the father filed a motion to vacate that order, requesting that his absence be excused. Six months later, the court reviewed his motion, and denied. Soon after, though, he was awarded certain visitation.

The father appealed all three orders - the order granting sole legal and physical custody of the child to his ex, the order denying his motion and the order awarding some visitation.

The appellate court declined to entertain the appeal of the first order, because orders entered on default of the appealing party are not appealable by that party. The decision of whether to reconsider the matter is within the sound discretion of the trial court. The only way a person could successfully vacate such an order would be to prove that the excuse for default was reasonable. That would maybe establish a cause of action or defense.

However, that did not happen here, the appellate court found, and so the trial court's ruling was affirmed.

The court doesn't necessarily have to decide the matter in favor of the other spouse. It could alternately decide to reschedule the hearing or dismiss the underlying case or motion. The outcome usually depends on the reason given.

An experienced divorce attorney can advise you of what may be considered "reasonable default" or provide explanations for why you didn't show up in court. Simply not wishing to come is not one of them. It's worth noting judges tend to have little patience for repeated absences.

There are sometimes valid reasons for why a person might not be able to make it to court or request a rehearing. But if you anticipate this might at all be an issue, it will be imperative to have a skilled divorce lawyer working to protect your rights and best interests.

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

Additional Resources:

Wong v. Liu, Oct. 1, 2014, Supreme court of New York, Appellate Division, Second Department

More Blog Entries:

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, Brooklyn Divorce Lawyer Blog


Saturday, October 25, 2014

Same-Sex Marriage Gets Implied Victory With High Court Declining Case

The U.S. Supreme Court declined review of a same-sex marriage case. Advocates on either side of the aisle had pressed for action, seeking a definitive ruling on whether the Constitution guarantees same-sex marriage rights.

 But by declining, the court effectively opened the door for same-sex marriages in as many as 11 states. The appeals presented to the court were from states where same-sex marriage bans had been struck down - Utah, Indiana, Wisconsin, Virginia and Oklahoma. By allowing the appellate courts' rulings to stand, gay marriages effectively become legal in those states.

What's more, because those decisions impact not just individuals states but their entire respective circuits, we are likely to see gay marriage approved also in West Virginia, Kansas, Colorado, Wyoming, North Carolina and South Carolina. Those states are under the jurisdiction of the same appellate courts. Other states outside those jurisdictions have been left in a place of uncertainty.

Our Brooklyn family law attorneys know that New York has allowed same-sex marriages since 2011. That means same-sex divorce in New York is also much more streamlined than in other states. By the justices deciding not to intervene in these pending appeals, it may make the process even easier, particularly for those who move out-of-state.

The core issue is whether homosexual couples in all 50 states should have the same equal protection and/or due process right to marry that "traditional" couples enjoy. Those who support the bans say it was a matter of voters' rights, and the appellate courts' decisions were an infringement of those bans.

Prior to this ruling, there were 19 states - plus the District of Columbia - that allowed same-sex marriage. It was banned in 31 states. Now, this decision to allow the appellate court rulings to stand makes it so that same-sex marriage is legal in 30 states (plus D.C.). There are also a few that offer some protections short of marriage, such as domestic partnerships and civil unions, but divorce in those places can be a tricky issue.

Given the complexity surrounding this continued patchwork of laws creates, why wouldn't the Supreme Court simply agree to decide the issue once and for all? Likely, it has to do with the fact that the high court looks to take on cases it views as the "best vehicle" for deciding a particular issue. Usually, that means arguments on both sides have to be both strong and clear.

The judges did not offer any explanation for why they chose not to resolve the issue now, but many speculated it was this "best vehicle" standard that prompted them to delay taking it on.

However, many are still anticipating a landmark decision on the issue from the high court within the next year or two. It's been estimated that roughly 80 marriage equality lawsuits are pending in 31 states that have current bans. A review by the Supreme Court would put those lawsuits on hold. However, by standing on the sidelines, the justices have chosen to wait to see how those battles play out before weighing in.

For help with same-sex family law matters Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Supreme Court Won't Hear Gay Marriage Cases in New Term, Oct. 6, 2014, By Bill Chappell, NPR

More Blog Entries:

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


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.  


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, September 25, 2014

Adrian Peterson Case and the Legality of Corporal Punishment

Minneapolis Vikings' All-Pro running back Adrian Peterson is facing criminal child abuse charges that could lead to two years in prison and possibly the end of his football career after he was arrested for striking his 4-year-old-son with a "switch," or thin tree branch. He has been suspended indefinitely from the NFL while his case plays out in the criminal courts, and though not as widely publicized, there is likely a simultaneous family law case playing out as well, determining to what extent Peterson's custody or visitation schedule should be limited.

Brooklyn ACS appeals attorneys recognize that in all 50 states, including New York and Minnesota, corporal punishment is still technically legal. The problem is there is widespread misunderstanding about the law, and various cultural interpretations about what is socially acceptable when it comes to raising and appropriate disciplining of children.

There are those who will (and have) said Peterson's actions were excessive, the perpetuation of the generational cycle of abuse. But there are those who have just as quickly stated such actions are taken out of love, and necessary to raising a respectful child. It's how they were raised, too.

Statutes vary from state-to-state on the definition of what "abuse" is, but most say that to be considered "discipline," it must be "reasonable" or at least "not excessive." Delaware passed a law in 2012 indicating it may not "cause any pain or injury." Still, most courts have generally upheld parents' right to spank.

In New York just this past summer, the state's highest court determined a father's use of an open hand to discipline an 8-year-old son who used an expletive was "reasonable use of force."

Public opinion is generally overwhelmingly in favor of allowing parents to retain this right - within reason. Last year, a Harris poll indicated more than 80 percent of American parents found spanking children is "sometimes appropriate." Less than 20 percent found it is "never appropriate." While one-third said they had "never" spanked their child, two-thirds said they had done so at least once.

Those who are Southern, African-American and religiously conservative Christians were far more likely to approve of spanking than those in other groups, according to another national General Social Survey.

In the Peterson case, news reports showed photographs of the boy with some half-dozen welts on his legs. Peterson would later say he was trying to discipline, not injure. It was the way he was disciplined as a child, he noted. He would later concede, however, that he "caused an injury that I never intended or thought would would happen."

Under New York law, "children" are defined as being up from birth up to 18 years (or up to 21 if he or she has a handicapping condition). Abuse upon a child is defined as that which is inflicted on this category of individual which causes serious physical injury (such as fractures, burns, head trauma and other internal injuries) creates a substantial risk of serious physical injury or impairment of emotional health other than by accidental means.

However, while corporal punishment is legal in New York, this does not mean the New York Administration of Children's Services Won't get involved in cases of legal discipline. What one family perceives as discipline, another may perceive as abuse, and the government may intervene simply as a preventative measure. But the process can be overwhelming for the family at the center regardless.

We're here to help.

For Brooklyn ACS help, call our offices at (718) 864-2011.

Additional Resources:

Corporal Punishment: Legal and Common, By Tracy Connor, Sept. 16, 2014, NBC News

More Blog Entries:

Corporal Punishment in New York City: Discipline vs. Abuse, Feb. 18, 2014, Brooklyn ACS Lawyer Blog


Thursday, September 11, 2014

Brooklyn Divorce Lawyers Advise Women How to Protect Financial Interests

While income equality is more of a reality today than just a few decades ago, the fact is, many women still earn less than men. In the event of divorce, family law judges seek to equitably divide assets and establish support payments were necessary.

However, our Brooklyn divorce lawyers are well aware that far too often, women become financial victims in these situations. Ensuring that divorce settlements are fair - or more than fair - requires an experienced attorney who is emotionally removed from the turmoil.

One of the primary mistakes made by divorcing spouses (of both genders) is focusing too heavily on alimony, also known as spousal maintenance. Of course, there is nothing wrong with asking the question or with insisting that such payments be made. This is particularly true if the spouse making the inquiry has foregone career opportunities (or a career altogether) in favor of staying home to raise children or helping the other spouse to advance his career.

But here's the problem: Almost always, alimony is temporary. It's not a long-term solution to achieving self-reliance or long-term financial security. First, there is always the possibility the ex-spouse will abscond and simply not make payments. Or, he could become disabled, rendering him unable to work. He might die. All of these factors should be considered when weighing what other elements require focus.

Sometimes, provisions can be written into divorce agreements to allow payments for tuition or other educational training, which might help bolster your viability in the job market.

There should also be ample consideration for health insurance coverage and receiving a fair share of the pension/retirement fund.

Another common mistake is focusing too much on the house. This often proves one of the most self-defeating decisions in property settlements. There may be an emotional attachment to the property. They may believe keeping the children in the same home allows for greater stability as they make this difficult transition. While there is nothing inherently wrong with keeping the house, far too many people focus on this aspect without considering some of the more negative aspects. For one thing, many homes are underwater in the wake of the housing crisis. A home that is worth less than what's owed will quickly become a money pit. Beyond that, affording not just the mortgage but the maintenance on a home can become extremely difficult when household incomes are divided.

Consider too that even if you can afford the house, payments and maintenance may preclude you from setting aside any meaningful savings which, again, can help to ensure long-term financial security.

We often encourage exploring whether a home sale - with an equitable division of profits or debts - makes more financial sense.

Finally, one of the best ways to ensure you don't become a financial victim in a divorce is to plan properly. While it may seem one is never fully "ready" for a divorce, there are steps you can take to put yourself in a better position. Those measures include having access to funds and credit. Additionally, each party will want to make sure they can readily access important documents, such as checking account statements, tax returns, property deeds, vehicle titles, etc. Also, each party needs to know what they own - and what their spouse owns and owes.

Talking through all of this with an experienced divorce lawyer prior to filing will help ensure you are financially prepared for the next chapter of your life as an independent person.

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

Additional Resources:

How Women Can Keep From Making Themselves Victims in Divorce, Sept. 4, 2014, By Laura Mattia, Baron Financial Group

More Blog Entries:

Brooklyn Divorce: What to Do With the House? July 30, 2014, Brooklyn Divorce Lawyer Blog


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