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Mark Gilmer, Esq.

Sunday, September 5, 2021

Is the custodial parent interfering with your visitation rights in New York?

As a Brooklyn, New York City Family Court Attorney for twenty years I have litigated many disputes over parenting time in Family Court.  This article explores the legal standards for a parent to obtain parenting time with their child.  I have represented a number of parents who have their visitation rights denied by the other parent. Many times, however issues of access are worked out by settlement between both parties but this article presumes that the parents are litigating the issue in Court.

The right of access to children is a joint right of both parents and of the child.

Read more . . .

Saturday, September 4, 2021

Has ACS taken your children because of drug or alcohol use?

 As a New York City Family Court Lawyer and ACS Defense attorney, I have come across many parent’s who have had their children taken from them or have had ACS cases filed against them with an ensuing investigation due to drug or alcohol use. I have successfully argued for the return of children in many cases of this type because the mere use of drugs or alcohol does not mean that a child was harmed or is in imminent danger of being harmed.  I have also successfully represented parents during investigation or after ACS has indicated the parent for inadequate guardianship as a result of drug or alcohol misuse.  I have successfully  argued that abuse of drugs or alcohol on its own does not mean that a child should be removed from a parent or that a neglect finding should be made against 

The Family Court Act defines a "neglected child" as a child less than 18 years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions" (Family Court Act § 1012 [f] [i] [B]).

‘The law is broken down into two parts, the first part being actual or imminent danger of physical mental or emotional impairment.

Read more . . .

Thursday, April 29, 2021

What are the types of Custody in New York? Written by a Brooklyn, New York City Custody and Visitation attorney.

As a New York City Family Court lawyer people often ask  me how many types of custody are there?  There are four types of custody in New York State. I will explain all of them in detail.


First of all it is important to note that you can apply for custody in either the Supreme Court of the State of New York or the Family Court of the State of New York. You would apply for custody in the Supreme Court if you are also simultaneously looking for a divorce. If you do not want a divorce but are living apart from the other parent then you could apply for custody in Family Court.

Read more . . .

Thursday, April 29, 2021

Can I fight the foster care agency if they remove children from my foster care home in New York? By Brooklyn, New York City ACS Attorney.

Sometimes foster parents are faced with the closing of their foster care home based upon allegations they may disagree with.  Foster parent’s develop a bond with their foster children, and the removal of their foster kids can be traumatizing to the the foster parent and the children. Many people ask me, a Brooklyn based New York City ACS Attorney what they can do if their foster kids are removed?


In New York City a foster parent has a few options when a removal occurs. The first thing that happens after a removal, is that the parent will receive a Notice of Removal from a Foster Home. This form contains the name of the parent from whom the children were removed, the name of the foster care  agency removing the children, the agency case planner responsible for the removal and the date the notice of removal was issued.
Read more . . .

Tuesday, April 27, 2021

Should I let ACS in if they knock on my door? By Brooklyn, New York ACS defense attorney.

This is a very complicated question. As a Brooklyn ACS Attorney that has represented clients for over 18 years  I can say that you do not have to let ACS in without a court order. However, if you do not let them in it can trigger a course of circumstances that you need to be ready for.


If ACS has started an investigation against you the case will last 60 days. During the 60 days, ACS will visit your home twice a month.
Read more . . .

Thursday, May 9, 2019

How does the Court determine best interest of the child in a New York Custody battle?, by Brooklyn Family Court Attorney

In order to determine what is in the best interest of a child in a custody case the Court must only make this determination following a full and comprehensive evidentiary hearing.   The New York Courts hold that parents have a fundamental right to custody of their children but neither parent, whether male or female has an absolute has right to the custody of the child or children.


If you have a custody case pending, your Brooklyn, New York  your attorney will help you to build a case in convincing the Court that it is in the best interest of the child to be with you.  The best interest of the child standard is based upon evidence that shows what parent best promotes the child’s welfare and happiness.  


Therefore the Court will first consider the welfare and interests of the children in making its determination.
Read more . . .

Thursday, May 9, 2019

Why won’t the Court give me a DNA test? Equitable estoppel and best interest of a child in a paternity proceeding, by Brooklyn, New York Family Court Attorney.

Many men in Court face this scenario.  They are petitioned to Court to pay child support for a child they do not know whether it’s  theirs and with whom they have had very little contact with.  These men contact me, a Brooklyn Family Court Attorney and ask me if the Court will grant them a DNA test. I tell them that it is complicated, requires good representation and is based on a number of factors.


Another scenario arises where a man, who for various reasons, such as the continuing alienation of the child from him, has not been in his child’s life and wants to be legally established as a father.
Read more . . .

Wednesday, January 7, 2015

Taylor v. Taylor - Equitable Distribution Is Not a 50/50 Split

When it comes to division of property and debts in New York, the goal of the courts is fairness through equitable distribution.

Although the term "equitable" would seem to indicate "equal," this is generally not the case. First, the court will determine whether certain assets or debt is "marital" or "separate." Whatever is marital must be at least weighed in the context of all other factors, while separate property/debts/assets will not be considered.

But beyond simply the nature and amount of these elements, the court will consider the length of the marriage, the contribution each party made to the marriage, the financial burden of support and custody of children and each party's current and future earning potential. Because these all vary so greatly from case to case, the courts often do not adhere to a strict 50/50 split of assets and debts.

Our Brooklyn divorce attorneys are experienced in hashing out these details in negotiation and, if necessary, in the courtroom.

The recent case of Taylor v. Taylor, before the New York Supreme Court, Appellate Division, Second Department, is an example of how equitable distribution works in practice.

Here, husband and wife were married several decades before filing for divorce in 2008. A final judgment was granted in November 2012, with the family law judge valuing the marital home at $510,000 and ordering the sale of that to be split equally between both parties. However, the court declined to divvy up their bank accounts 50/50 and also awarded wife an owned condominium in Florida, determining it to be her separate property.

Husband appealed on grounds the bank accounts weren't distributed between parties and further the Florida home should have been deemed marital property.

With regard to the bank account issue, the court noted by the time a final judgment was issued on this matter, the pair had not functioned as an economic team for six years. It would not make sense, the appellate court found, to divide between them what had clearly been separate for many years at that point.

With regard to the Florida home, the court found the matter was not properly before the court because the husband failed to assemble a proper record on appeal. At trial, plaintiff presented evidence the money she used to purchase the property in Florida - after she separated from her husband - was paid for with money gifted to her by her father and her son, collectively. When appealing this decision, husband brought no evidence to counter this or show plaintiff failed to meet her burden of proof showing the home was separate property.

Although there are no hard-and-fast rules about what is marital property and what is separate, the courts generally find the following property to be separate:

  • Property acquired before marriage
  • Property acquired by inheritance
  • Property acquired by gift from a party other than spouse
  • Personal injury compensation
  • Property described as separate in a written agreement of the parties

All other property the court generally considers marital property for purposes of distribution. These may include bank accounts, IRAs, stocks, bonds, household furniture, motor vehicles and all other property acquired during the marriage - and sometimes before.

But again, this doesn't necessarily mean a 50/50 split. It simply means that property will be considered as a piece of the greater whole, with the court given a broad range of discretion in determining which factors to give greater weight.

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

Additional Resources:

Taylor v. Taylor, Dec. 3, 2014, New York Supreme Court, Appellate Division, Second Department

More Blog Entries:

Retaining Inheritance During New York City Divorce, Dec. 1, 2014, Brooklyn Divorce Lawyer Blog

Thursday, January 1, 2015

New York Uncontested Divorce Closest Thing to San Diego's "One-Day Divorce"

In divorce law, there are plenty of horror stories. There have been cases in which people believed a divorce was finalized, only to find out years later it wasn't. There are couples who spend hours filling out reams of paperwork, only to find out months later they have to start over because a certain box wasn't checked.

That's in addition to the emotional trauma of the situation. The reality is, divorce is a legal process that be extremely confusing, even though the goal of both people seems fairly straightforward: To restart their lives as separate individuals.

In San Diego, the superior courts recently began initiating a "One Day Divorce" program. It's not actually a one-day process. It's only open to county residents who aren't represented by a lawyer and who filed for divorce six months prior and seek a judgment. The only cases eligible are those where there is an agreement on division of debt and property, spousal support and parenting plans. Legal professionals work with them for half an hour to help them get all the proper paperwork filed in order to secure a quick judgment.

Still, the "one day" terminology is somewhat of a misnomer, as most people who seek the program have actually been trying to get a divorce for at least a year.

Our Brooklyn uncontested divorce attorneys know that while there is no similar "One Day Divorce" program here in New York, the closest thing is an uncontested divorce. In some respects, this option is not only faster than a "One Day Divorce," it's also less expensive.

Take into consideration, for example, the fact that those enrolled in the San Diego program aren't represented by a lawyer. This definitely saves money in the short term. However, the benefit of an attorney outweighs the cost, particularly in an uncontested situation, in which we can help complete the process for as little as $399, plus filing fees. That's because even if you agree on the major points, the fact is sometimes you aren't always thinking clearly in the midst of this process, or there may simply be points you overlooked. We make sure all relevant aspects are considered and your rights and interests are protected. In the end, this saves a significant amount of money.

And while a "One Day Divorce" in fact takes one year or more, an uncontested divorce can be completed sometimes in as few as 30 days, so long as you've lived in New York for at least a year and both parties can attest the union has been irretrievably broken for at least the last six months.

Although New York was one of the last states to adopt the "no-fault" divorce, couples no longer have to cite a specific reason - such as adultery, abandonment, cruelty, incarceration, etc.

With uncontested divorce, the fewer details to sort out, the quicker things will go. However, you don't want to risk the possibility of overlooking important details or signing away important rights. That's why it's so important to have an attorney helping to guide you through the process.

Divorce is usually unpleasant, but it doesn't have to be torturous or lengthy. We can help you close this chapter of your life and start fresh.

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

Additional Resources:

San Diego court offers one-day divorce, Dec. 4, 2014, By Lyndsay Winkley, Union Times San Diego

More Blog Entries:

Lubrano v. Lubrano - Dealing With Debts in New York Divorce, Dec. 7, 2014, Brooklyn Uncontested Divorce Lawyer Blog

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 22, 2014

Wallace v. Wallace - On Calculating Child Support in New York

While New York City family courts are granted a broad range of discretion with regard to determination of child support, they are guided by Section 413 of the Family Court Act. The law offers a general percentage and dollar amount for support, depending the number of children and income of paying parent.

So for example, as of March 2014, a parent with one child must pay 17 percent of his or her income in support. If his or her annual income is between $45,000 and $45,099, the amount of the annual obligation will be $7,650, or $637 a month. If two children are involved, that parent will be required to pay 25 percent of his or her income, up to $11,250 annually, which breaks down to $937 a month. The maximum amount a parent can be compelled to pay is 35 percent. So if a parent in that income bracket has five children, the most that parent could be compelled to pay is $15,750 a year, or $1,312 a month.

But again, these guidelines are general. The courts may take into consideration the income of the other parent, special needs of the children and any relevant mitigating or aggravating circumstances.

Our New York City child support lawyers recognize these can be complex matters, and it's our goal to ensure your rights are protected and interests furthered.

Although child support payment amounts can be modified once set, that can only happen when one party can show a material change in circumstance, such as loss of a job or remarriage. Barring that, payment amounts will not change. That's why it's so important to make sure you are properly represented in the initial phases of negotiation, when child support is first being set.

While family law provisions can vary from state-to-state, most adhere to this "material change" requirement when considering whether to modify support payments.

The recent case of Wallace v. Wallace, before the Georgia Supreme Court, involved an appeal of an initial order, where mother of three minor children alleged the court wrongly calculated child support payable by the active duty serviceman father. The pair agreed to joint legal custody, with mother granted primary physical custody.

The court awarded a child support amount of $1,300 monthly, but allowed for a a deviation of $400 monthly in travel expenses so he could see the children. That meant the actual support payments would be $900 monthly.

Mother later appealed on the grounds of allowing that $400 deviation. The court never indicated how the deviation from the presumptive amount would benefit the best interests of the children, and therefore failed to satisfy one of the basic foundations of family law.

The Georgia Supreme Court agreed, and also found the trial court erred in not considering father's $3,555 monthly housing compensation as part of his gross monthly income. Therefore, the court reversed and remanded for further proceedings.

We understand these cases can be both sensitive and complex. In order to ensure your rights are protected and your children are provided for, consult with an experienced legal professional.

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

Additional Resources:

 Wallace v. Wallace, Nov. 24, 2014, Georgia Supreme Court

More Blog Entries:

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, New York City Child Support Lawyer Blog

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