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Mark Gilmer, Esq.

Thursday, November 18, 2021

What are grandparent’s rights to visitation in New York?


As a grandparent’s visitation attorney my client’s ask me can a parent deny a grandparent visitation? The answer depends upon a number of factors which shall be discussed below.

 

It is important to note that this article only deals with grandparent visitation and not grandparent custody. For a grandparent to have standing to apply for custody they must show that extraordinary circumstances exist. This is classified as a prolonged separation of the child and parent for at least 24 months where the biological parent has voluntarily relinquished care and control of the child who lived in the grandparent’s household during this period of time. 

 

In order to initiate a grandparent visitation case you must file a Petition in the Family Court of the county where the child has resided for the last 6 months or more.
Read more . . .


Monday, November 8, 2021

Business Valuations in a New York Divorce, by George Mark Gilmer, Esq.


 Hello. I am a Brooklyn, New York City Divorce attorney. I have handled multiple cases that involved the valuation of a business in a divorce. This article will explain the procedure of valuing a business and the common issues that arise.

 

In a divorce where a business is involved if the two parties can’t agree to the value of the business an expert will need to be hired (usually a CPA with extensive experience in valuing businesses).
Read more . . .


Tuesday, November 2, 2021

What are my rights and what am I entitled to in a divorce in New York?


As a Brooklyn, New York City based divorce attorney clients often ask me what are their rights and what are they entitled to in a divorce. The answer depends upon what the respective incomes of both spouses are, whether there are marital assets and property and if there are children of the marriage. 

 

Your rights and entitlements in an Uncontested Divorce

 

A divorce can be resolved in two ways, via an uncontested or contested divorce. An uncontested divorce occurs when both spouses agree upon the terms of the divorce. This means that all issues involving maintenance, property, asset division and if there are children, custody and visitation, are resolved.
Read more . . .


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


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