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Tuesday, August 26, 2014

In re J.A.L. - Guardianship of Elder Adults in Brooklyn

A growing number of requests for guardianship in Brooklyn are being filed by people hoping to protect the health and financial well-being of an elder adult. Usually, we see this with adult children seeking guardianship of their elderly parent in order to manage their affairs and oversee health care decisions when the parent suffers from dementia or is otherwise incapacitated and unable to make his or her own decisions.

These situations are guided by Article 81 of New York's Mental Hygiene Law.

In some cases, the parent lives with the adult child, and other times, he or she is cared for at a nursing home or assisted living facility. Our Brooklyn family law attorneys believe it's important to note that not all guardians in New York are granted the same powers. Orders are drafted specifically for each case so that guardianship authority is tailored specifically to be able to meet the needs of the incapacitated person. For example, some elderly adults may only require assistance to pay their bills, so the court would limit the guardian's power to financial management. In a case with a person suffering severe dementia, the court may give the guardian a much wider swath of power.

While the process in these cases is often straightforward and unchallenged, family conflicts do sometimes arise.

This was the case recently for the parties involved in In re J.A.L., overseen by the Montana Supreme Court. This was a difficult case where it was clear there were no easy answers. The court worked to act in the best interest of the incapacitated adult.

According to court records, the woman at the center of this case had been married to her husband for 50 years. During that time, the husband provided her with care in their home, as she suffered from both cognitive impairments and her mobility was limited by multiple sclerosis.

However, as time went on, the husband was unable to provide her with a sufficient level of care, even with assistance. As a result, she was taken to live in an assisted living facility.

However, the husband reportedly caused problems with the doctors, nurses and staff at the facility, and the wife was discharged. This series of events repeated itself again. The husband suffered an emotional breakdown and was admitted for care at a state hospital. When he was released, he stopped taking his prescribed psychiatric medication, as he did not like the side effects. He did not seek further treatment for his mental health issues.

Meanwhile, the wife's daughter and son sought, and received, appointments as co-guardians and conservators for their mother. She was placed into another assisted living facility, and appeared to do well. However, once the husband began to visit frequently, this changed. She began "acting out." The husband called sometimes 40 times in a single day and was disruptive when he was present. She was again discharged.

The woman's son and daughter had trouble in responding to these problems. A guardian ad litem was appointed for the woman, but the husband reportedly interfered with his wife's communication with the court-appointed GAL.

An emergency court hearing was held, and guardianship was transferred from the woman's children to her brother and sister-in-law. She was then re-admitted to the assisted living facility, on the condition she have no contact with her husband. She reportedly did well after that point.

The husband then filed two petitions with the court, seeking to remove the guardianship granted to his in-laws and to appoint him as his wife's guardian. The court held six hearings on the matter, and ultimately rejected his requests, and gave the in-laws full guardianship and granted them the authority to limit the woman's contact with her husband.

He appealed, but the lower court's order was affirmed. The Montana Supreme Court justices noted the woman's declining physical and cognitive health required that she have a guardian to oversee her affairs. However, the court ruled the husband was not in a position to do this, as he'd displayed a history of inappropriate behavior that did not serve to protect his wife's health and welfare. While the court has ruled that guardians can't initiate divorce proceedings for a ward, they can influence the marital relationship if it's in the best interest of the ward.

If you need help securing guardianship of an elderly loved one in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re J.A.L., July 23, 2014, Montana Supreme Court

More Blog Entries:

In re Guardianship of Madelyn B. - Same-Sex Couple Custody Dispute, July 11, 2014, Brooklyn Family Law Attorney Blog

Sunday, August 24, 2014

Robinette v. Hunsecker - Securing Retirement Benefits in Brooklyn Divorce

One of the most important - and too often overlooked - elements in the allocation of property in a New York divorce is retirement benefits.

Brooklyn divorce attorneys recognize it has an increasing level of importance as more people are divorcing in middle age and even as seniors. But it should be given priority even in cases involving younger spouses because your portion of benefits accrued during the marriage could bolster your overall financial health in old age.

In the recent case of Robinette v. Hunsecker, before the Maryland Court of Appeals, a lawsuit was filed by the ex-wife of a deceased man whose widow collected the entirety of his retirement benefits, including a pension payout and death benefits. This ran contrary to an earlier-agreed division of property per the divorce settlement agreement reached many years prior. The ex-wife alleged unjust enrichment. The district court and later Maryland's highest court agreed.

To better understand the facts of this case, it's important to start with an explanation of the federal Employee Retirement Income Security Act of 1974 (often referred to as ERISA). This was a law that established a series of requirements to protect the retirement plans of private sector workers, and preempted state laws that ran to the contrary. One of ERISA's limitations is that it limits the ability of the worker to transfer pension benefits to another party. While this would seem to bar the transfer of pension benefits by a state court in a divorce action, the amended Retirement Equity Act of 1984 allows for an "alternate payee" to collect all or a portion of benefits, pursuant to a court order that adheres to federal statute requirements.

Many, but not all, retirement plans are governed by ERISA. For example, government worker pension benefits are specifically exempt from the law.

In this case, the ex-wife and the husband were married in June 1981. Throughout the course of their marriage, the husband worked at the local public school system and participated in the pension plan. After 17 years together, in 1998, the pair divorced. Per the terms of the divorce settlement, the ex-wife was supposed to receive a portion of her husband's pension benefits that were accrued during their marriage. This included death benefits.

The settlement agreement implied that the plan was overseen by ERISA and that the ex-wife was to be the alternate payee, set to receive 50 percent of the benefits that he had amassed during their union. However, the plan was exempt from ERISA, as it was a government-sponsored plan.

Two years later, the husband remarried. He listed his second wife as the beneficiary on his pension plan. he continued working at the school until his death in late 2009. His wife was named as the beneficiary of his estate. She received an initial payment of $4,100 and was set to receive a monthly amount of $2,100 thereafter.

The following spring, the ex-wife applied for her portion of death benefits under the retirement plan, pursuant to the divorce agreement. However, the pension fund never received a proper filing indicating the ex-wife was a beneficiary, so her request was rejected.

The ex-wife filed a lawsuit. Her attorneys determined that her portion of the monthly $2,100 benefits would be $600.

Both parties filed for summary judgment, and the court ruled in the ex-wife's favor. The court indicated the widow had done nothing wrong, but she was receiving a windfall of the ex-wife's portion of the pension.

The order was filed with the pension fund, and the ex-wife began receiving her monthly portion of benefits.

The wife appealed, though the order was affirmed both by the Court of Special Appeals and the state's highest court, which found the domestic relations order (or QDRO) was valid under state law, and therefore, the ex-wife was entitled to receive her portion of the benefits.

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

Additional Resources:

Robinette v. Hunsecker, July 18, 2014, Maryland Court of Appeals

More Blog Entries:

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

Friday, August 22, 2014

Balogh v. Balogh - Enforceabilty of Prenuptial, Postnuptial Agreements

Prenuptial and post-nuptial agreements are considered binding contracts that can be legally enforced by the courts in the event of a divorce, even when the agreement runs contrary to what a judge might decide if given the discretion.

However, there is a chance that such agreements could be deemed unenforceable by the court. Our Brooklyn prenuptial agreement attorneys know this occurs mostly in cases where the balance of power was skewed (i.e., one party wasn't properly represented by legal counsel, one party felt bullied) or when the language contained therein is unclear or runs contrary to public policy.

Interpreting whether such contracts meet the criteria necessary in order to be considered legally binding will be up to the judge. However, as the recent case of Balogh v. Balogh shows, different courts may have varying interpretations.

According to the Hawaii Supreme Court records in this case, the primary issue of contention was the enforceability of a number of agreements the pair made during the marriage.

The couple married in 1981 in New Jersey. Both were well-educated with master's degrees and well-paying jobs.

 In 2003, they moved to Oahu and began construction of a home on a vacant lot they had purchased, using money the husband had inherited. Five years later, after a period of tension during their marriage, the parties signed a handwritten document, indicating if they were separated, the wife would retain 75 percent of the profits from the sale of the home, the contents (including the husband's tools and clothing) and all of their vehicles.

(The wife reportedly suspected the husband of an affair, and demanded that if he was serious about saving their marriage, they needed to "write something up.")

Several weeks later, the pair signed a typewritten "Memorandum of Understanding," which reiterated these points, as well as indicated the husband should pay the wife $100,000 in lieu of alimony and court costs.The wife would later say she was not intent on divorce at that point, but rather was trying to save the marriage.

Tension between the two continued, and the husband moved out of the marital home in August 2009. Several weeks later, he signed a quitclaim deed transferring his entire interest in the property to his wife for $10.

In January 2010, the wife filed a complaint for divorce.

The family court did not honor the agreements the pair had made. In spite of those documents, the court ruled each party should receive exactly one-half the interest in the property, valued at $1.6 million at the time of the divorce. The court ruled it would be unconscionable to enforce the deed or other agreements because the husband acted under coercion and duress.

The wife appealed, and the appellate court reversed, finding the contracts enforceable because the husband had signed them voluntarily.

The husband appealed this order.

In its review, the state supreme court first ruled the quitclaim deed did not amount to a separation agreement that altered either party's right to equitable division of property such that the wife should receive the entire portion of it. Therefore, the court found the quitclaim deed unenforceable. 

However, the Memorandum of Understanding, the court found, was enforceable because it was entered into voluntarily. The court noted both parties were well-educated, there was no indication the wife had made threats to the husband in order to force him to sign and there was no indication of any improper methods of persuasion. Additionally, the language was clear and unambiguous.

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

Additional Resources:

Balogh v. Balogh , Aug. 7, 2014, Hawaii Supreme Court

More Blog Entries:

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

Wednesday, August 20, 2014

Brooklyn Divorce Attorneys: Help With Divorce by Publication

Some people want nothing more than to never see their spouse again - if only they could be found first.

Divorce in cases in which one spouse can't be located are challenging because one of the key points in any civil court case is serving notice to the other side of what is occurring, affording them due process and the opportunity to respond accordingly.

However, if you can't locate your spouse, you aren't expected to remain married to them indefinitely. Our Brooklyn divorce lawyers are familiar with a process called divorce by publication, which allows parties to obtain a valid divorce, even when one of the parties cannot be found. The process is also sometimes referred to as a "no signature divorce," because the other party is not available to provide a signature on the notice forms or other documents.

While a missing husband or wife would seem a cause of great alarm for some, for others, it may be a rather unsurprising continuation of a pattern, perhaps even a core reason for seeking a divorce in the first place. Others may involve spouses who have been separated and out of contact for years, but never officially sought a divorce. 

Divorce by publication is only allowed in situations where a judge has been convinced, based on a sworn declaration, that the person initiating the divorce has tried diligently to find the other party to no avail.

In order to satisfy the judge's concerns that you have conducted a thorough search, you will likely require the guidance of an experienced divorce lawyer.

He or she will likely begin by searching the following places:

  • Within the five branches of the U.S. Military.
  • The Board of Elections where your spouse was last known to reside.
  • The New York Department of Motor Vehicles.
  • The Post Office in the region where your spouse was last known to reside.
  • A search of telephone and Internet directories in the area your spouse was last known to reside.
  • Any known living relatives or friends with whom your spouse may still be in contact.

All of these efforts must be carefully documented. If any of these searches turns up a lead, it must be followed through with an investigation. If a person is found with your spouse's same name, a full investigation must be conducted to confirm his or her identity before notice of divorce action is served.

If all of this turns up nothing, at that point, we can file a motion requesting the court allow for an Order of Publication. The request will list all search efforts and demonstrate to the judge that you made every reasonable effort to locate your spouse, and yet were unsuccessful.

If the judge grants and order of publication, that order must be published as a legal notice in a newspaper. The notice will clearly state you are seeking a divorce action against your spouse. This will effectively serve as legal "notice" and "summons."

In order to be valid, an Order of Publication has to be published in the newspaper within one month of the judge signing off on it. The order will specify which publication the notice will appear, and will most usually be one in the jurisdiction where your spouse was last known to live. Additionally, the order will specify how many times the notice has to appear, usually three times within a three-week period.

If there is no response from the spouse within a month of the the final notice, you are entitled to file for divorce by default. That means once your papers are approved by a judge, your divorce can be granted. While every case is different, the entire process for divorce by publication in New York usually takes about one year.

To learn more about how we can help, contact us today.

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

More Blog Entries:

Preparing Yourself Digitally for a New York Divorce, July 21, 2014, Brooklyn Divorce by Publication Lawyer Blog

Friday, August 15, 2014

Robin Williams Joked of Divorce, but Alimony Had Been Costly for Actor

The late beloved actor Robin Williams had one of the most enduring careers in Hollywood history. And yet, two divorces - one in 1998 and another in 2008 - effectively decimated his bank accounts.

He would later joke that divorce was expensive, particularly alimony, which he said should be called "all the money." He added, "It's ripping your heart out through your wallet."

Our New York City alimony lawyers know that while it may seem someone like Williams could have well-afforded to make maintenance payments to his exes, the fact that he struggled financially after the settlement shows how universal the issue is.

Years ago, alimony used to be a given in the event of a marriage dissolution. Largely, this had to do with strict gender roles, wherein the husband was the primary wage-earner, while the wife stayed home and raised children. In this situation, a wife who contributed equally to a marriage would face an unfair financial burden in the event of a divorce. Alimony was a common remedy.

Today, that scenario is far less common. Alimony is still awarded in some cases, but it is usually only for a set period of time, as it is intended to serve as a means to smooth the transition for the party who earns less.

In New York, the 2010 overhaul of divorce law enacted a number of changes. One of those was to set a strict formula for judges awarding temporary alimony during the divorce proceedings. The idea was that low-income residents who couldn't afford attorneys deserved to be treated fairly, and the courts needed to implement a way to maintain consistency.

However, it's proven problematic in some ways for wealthier couples because it looks almost solely at salary. It does not factor in savings accounts, mortgage payments and things like fluctuating annual bonuses. While judges have the ability to deviate from the formula, they are required to pen a detailed explanation each time they do. Having an experienced family law attorney to represent your interests at each phase in the process is important.

It's important to note there are temporary alimony orders, which are implemented while the divorce proceedings are ongoing, and then permanent alimony orders that are included in the divorce settlement agreement. It's not uncommon for a spouse to receive temporary alimony, but then be denied permanent alimony once the order is finalized.

Even when alimony is "permanent," there is usually a date on which it expires, or certain conditions, such as remarriage, that make it void.

In Williams' case, although the exact details of his divorce agreements were private, the actor was reportedly paying tens of millions of dollars to each of his ex-wives. The New York Posts reports he paid between $20 million to $30 million to his ex-wives. Despite a prenuptial agreement signed by his first wife, he was ordered by the court to pay her $50,000 monthly for life. That was back in 1988.

These payments reportedly would have been in addition to child support obligations and division of other assets.

Although his net worth was estimated to be at $130 million, he put a sizable chunk of that money into a trust for his three children. In recent years, he began selling off certain assets. His $30 million Napa Valley home was still listed for sale at the time of his death.

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

More Blog Entries:

Monday, August 4, 2014

In re M.E. - Child's Health Trumps Parental Preference of Care

The right of a parent to decide the kinds of medical treatments and therapies given to their children has long been a cannon of family law. However, when those choices run counter to the child's well-being, particularly where parents refuse life-saving medical treatment for the child, courts are increasingly stepping in to take charge.

Brooklyn ACS lawyers know that in addition to intervention by state child welfare workers, there have even be some cases in which criminal charges, such as child endangerment, child neglect or even manslaughter have been filed when children became gravely ill or died as a result of parental refusal to seek medical treatment for a child, contrary to a physician's orders.

Many of these cases involve assertions by the parents that such treatments run counter to their religious faith, citing their First Amendment protection of religious freedom. The advocacy group Children's Health Care is  Legal Duty estimates about 300 children have died in the last 25 years as a result of deprivation of medical care by their parents on religious grounds.

However, there have also been cases where parents simply deemed the health care directives too invasive, or they didn't fully understand the doctor's orders or the severity of the situation. A language barrier could be a significant factor in this, and health care officials have a duty to ensure they have adequately conveyed the message to the parents before action is taken in the courts.

Most parents do act in what they believe to be the child's best interests. But courts are increasingly less willing to give parents the benefit of the doubt when the child's welfare is at stake. 

One recent example involves the case of In re M.E., before the Maine Supreme Judicial Court. This was a case involving parents who emigrated to the U.S. from Uzbekistan several years prior to giving birth to their daughter. Their primary language is Russian, though they do understand some level of English.

The girl was born in the spring of 2012, weighing 7 pounds, three ounces, which put her in the 50th percentile for height and weight. However, over the next several months, the child's weight on the growth charts began to consistently decline.

At four months, her weight had fallen to the 10th percentile. At six months, she had fallen to just below the 3rd percentile. When she reached nine months, a doctor with the facility spoke through Russian interpreters with the family to explain the girl was not thriving and needed to be consistently eating solid foods. He recommended breast feedings be spaced out, and the child be supplemented with formula.

The parents were asked to return with the child the following week. However, the parents did not return with the child until more than  a month later. At that time, the child was still not gaining weight. The doctor, again through interpreters, explained the child was at risk for permanent brain damage and cognitive and motor development delays.

The parents, however, insisted the child was simply small for her age. The doctor countered that her lack of weight gain was due to the fact that she wasn't getting enough to eat. He explained that if she didn't start gaining weight, she would have to be hospitalized.

The parents returned the following week, and the mother explained she had to stop feeding the girl formula because she'd had an allergic reaction to it. The girl was hospitalized, and a feeding tube was inserted in her nose.

She remained in the hospital for a week, and gained a "substantial" amount of weight.

Staffers then prepared to release the girl home, and through interpreters, explained how to feed the girl using the tube. The staff explained how important it was that a feeding schedule be followed, and of the need to seek help if the tube was accidentally removed.

The parents returned to the hospital several times to have the tube reinserted. On one of those occasions, the doctor learned the parents had missed some feedings because either they or the child had fallen asleep.

Soon after, the parents missed a scheduled doctor's appointment, and a visiting nurse went to the home and found the feeding tube had been taken out several days earlier and not reinserted.

At the insistence of state child welfare officials, the parents brought the girl into the doctor's office, where the father insisted he would not force-feed his daughter. The girl was losing weight. When the department initiated proceedings to put the girl in protective custody, the father became livid and threatened suicide. He was admitted to an involuntary psychiatric unit for treatment.

A subsequent hearing found the child was in jeopardy and removed her to state custody.

The parents appealed this order, but the appellate court affirmed, finding the parents could not be trusted to keep the child safe.

Wednesday, July 30, 2014

Brooklyn Divorce: What to Do With the House?

There are many factors that must be carefully considered when it comes to asset and debt division in divorce. Our Brooklyn divorce lawyers recognize that one of the questions that weighs most heavily on parties involved is the division of assets related to the marital home.

The home is often the largest asset to be divided between the parties, and unfortunately, there is no one-size-fits-all approach that's going to work for each situation. Some of the factors that parties need to consider include: Whether the home is underwater or likely to make a profit if sold, whether one party intends to continue living there and whether that party on his own can afford to continue making payments. There are also certain tax implications, and parties must consider whether a depreciation or appreciation of home value is likely to occur.

One of the most important things to note is that, no matter what is decided in the divorce decree, both parties remain responsible in the eyes of the bank, so long as the names of both parties are listed on the loan. That means even if one person is indicated in the decree as carrying the sole financial weight of the mortgage, if he or she defaults, the other party will be held legally responsible too.

Even if one spouse contributed more heavily to the mortgage payments during the marriage, he or she likely doesn't hold sole legal claim to the property unless a quit-claim deed was signed by the non-purchasing spouse. Trying to extract one of the parties from the mortgage following a divorce is usually much tougher. It's a matter that won't go through family court, but rather will have to be negotiated with the lender through refinancing. Of course, this depends on the creditworthiness of the person seeking to take over sole responsibility for the loan.

In many cases, couples find it ideal to sell the home and then divvy up responsibility for the proceeds or debts, depending on the principles of equitable distribution. That is, one individual may get all the proceeds from the home sale, in exchange for a lesser amount of some other asset.

This is the kind of thing that needs to be carefully considered. While there may technically be enough cash in the marital estate to buy out an ex-spouse, it needs to be weighed against the reduction of your portion of other assets, such as retirement accounts. Keep in mind that just because an asset is worth a certain amount on paper doesn't necessarily mean it is worth that in reality. For example, a home purchased 10 years ago may in fact be worth 75 percent of its original value, while a retirement account that equals the value of the home may be worth twice that in 20 years.

We certainly recognize that the decision regarding whether to keep a home is likely enveloped in all sorts of emotions, particularly if that is where your children grew up. If your kids are still going to school in that district or you have other major ties to the immediate community, these too are important things to consider. However, it's also a major financial decision, just like it was when you first bought it. Our attorneys are dedicated to ensuring the agreement reached by you and your ex-spouse on this matter considers your best interests.

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

Additional Resources:

How to Divide Your House in a Divorce, July 14, 2014, Credit.com

More Blog Entries:

Sunday, July 27, 2014

Wichman v. Shabino - Non-Parties to Divorce Can't Enforce Decree

Efforts by a third party to enforce elements of a divorce decree were shot down in Wichman v. Shabino , where the court indicated the plaintiff had no standing to bring the claim.

Our Brooklyn divorce lawyers recognize this case, weighed recently by the South Dakota Supreme Court, underscores the fact that the binding nature of divorce agreements generally only extends to the parties involved. For example, a credit card company with which you shared joint debt with your ex is not bound to refrain from pursuing you for any unpaid portion, even if the divorce decree indicated your ex is responsible to pay it.

The element of the claim that might have withstood legal challenge here - breach of contract - was time-barred by the statute of limitations. Per the laws in that state, breach of contract claims have a six-year shelf life before they expire and the wronged party forfeits any right to collect damages. Meanwhile, enforcement of a divorce decree has a 20-year shelf-life - but only if the person bringing the complaint was an original party to it, or a representative of the party.

The facts of this case date back to 1999, when the couple first married and purchased a home together. In order to do so, they accepted a $15,000 loan from the wife's mother, with an agreement that amount would be repaid in monthly installments.

In 2002, the couple stopped making payments on the loan and divorced the following year. A divorce agreement granted the husband the home, but also required him to pay the remainder of the debt owed to his mother-in-law. However, he did not comply with this agreement. Apparently, he was ordered to pay his ex-wife a lump sum of $17,000, and mistakenly believed the remainder of the debt to his mother-in-law was included in that amount.

Ten years later, the mother-in-law filed suit, first for breach of contract and secondly seeking to enforce the terms of the divorce decree.

The ex-husband argued the breach of contract claim was barred by a six-year statute of limitations, and that the mother-in-law couldn't enforce the divorce decree as she was not a party to it.

The court agreed with him on the divorce decree issue, but did allow her to receive seven installments on the loan per the breach of contract claim - those installments would have been due prior to the expiration of the breach of contract claim.

The mother-in-law appealed, arguing the court erred in it's denial to enforce the divorce decree, given that the debt owed to her was part of it. Further, she asserted the court erred in applying the six-year statute of limitations.

The case ultimately made its way to the state supreme court. There, justices affirmed the ruling regarding the mother-in-law's lack of standing to enforce the divorce decree. The state's supreme court previously rejected any assumption that division of debts in a divorce action could impact the rights of third-party creditors.

The court found nothing to support the assertion that the ex-wife, named as a plaintiff in the suit, could sue her ex-husband so that her mother, a third-party creditor, could be compensated per the decree. Previous case law has held that where third party creditors are concerned, both parties are equally liable. The only way the wife could sue for recovery of the money would be if she paid the debt and then filed a separate suit seeking compensation from her ex-husband. Here, the ex-wife was not suing for money unpaid.

However, given the 20-year statute of limitations on the divorce decree, this may yet be an option for the ex-wife if she hopes to help her mother recover the money owed.

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

Additional Resources:

Wichman v. Shabino , July 9, 2014, South Dakota Supreme Court

More Blog Entries:

Thursday, July 24, 2014

Court: Parents Must be Afforded Due Process in Termination of Rights Hearing

The termination of one's parental rights is not something family courts should take lightly. It's a life-altering and family-altering court action with certain finality which should only be sought as a last resort.

In the course of these proceedings, our Bronx ACS lawyers know that due process must be afforded to parents. It's not the only factor the court must weigh - the welfare of the child trumps all - but it is an important one. The best interests of the children are not served when the parent is denied ample opportunity to present his or her case, which in turn deprives the court of the chance to fully weigh the credibility of all involved.

These due process rights include the right to be properly informed, the right to secure adequate legal representation and the right to be present at hearings. Of course, these rights aren't absolute, and may ultimately be outweighed by other elements. However, given the profound impact these rulings can have on a family, these matters must be appropriately considered.

The denial of parental due process rights was at issue in the recent Indiana Supreme Court family law case of In re: Involuntary Termination of the Parent-Child Relationship of K.W. and C.C. This case involves a mother who was incarcerated for a short stint while the termination of her parental rights regarding her toddler son was pending.

The child in this case was born in August 2011. The following month, the boy was identified by state child services workers as being a child in need after his father and mother were  both repeatedly arrested, tested positive for drugs and failed to seek required treatment. Following several continuances, a hearing for final termination of parental rights was set for April 2013.

On the day of that hearing, the mother was in jail. Her attorney indicated she would likely be released from incarceration within two weeks, and requested another continuance. That request was objected to by attorneys for children's services, as well as by the guardian ad litem appointed to represent the child's interests. The court denied the request, and the hearing was held without the mother present.

The mother appealed, arguing a violation of her due process and also ineffective assistance of counsel, as her attorney failed to present an alternative option to have her transported from jail or to testify by phone. The appellate court affirmed the trial court, indicating the evidence supporting termination was "overwhelming."

However, the state supreme court reversed, finding the mother's due process rights were violated. When weighed against other factors in the case, there was little reason the court couldn't have delayed the proceeding until after the mother was released or, at minimum, have allowed her to be present via telephone.

The court noted the precedent set forth in such matters, instructing the court to weigh parental due process rights in custody cases involving an incarcerated parent against:

  • The delay resulting from parental attendance and the time so far elapsed;
  • The need for early determination of the matter;
  • The best interests of the children in having the parent physically attend;
  • The reasonable availability of the testimony through other means;
  • The cost and inconvenience of transport and that to other witnesses;
  • The probable success of his or her arguments on its merits.

Here, a delay to continue the proceedings two weeks would not have resulted in significant inconvenience or cost to those involved. Not only would such a continuance be in line with shielding the due process rights of the parent, it would have served the child's best interests to ensure a fair and legally sound proceeding not subject to further legal challenge.

If you are battling ACS in the Bronx or Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re: Involuntary Termination of the Parent-Child Relationship of K.W. and C.C. , July 10, 2014, Indiana Supreme Court

More Blog Entries:

Monday, July 21, 2014

Preparing Yourself Digitally for a New York City Divorce

In the past 20 years, technology has significantly altered the way in which we live our lives - from the way we communicate to the way we manage our money to the way we store personal archives. Our New York City divorce lawyers recognize that it has also changed the way in which we end our marriages.

Digital files can make it easier to track unscrupulous transactions and efforts to hide assets. Social media can come into play in matters of child custody and sometimes division of assets (depending on how open both parties are with their postings). Electronic communication between parties can be presented as evidence supporting one conclusion or refuting another.

Still, the law is often decidedly antiquated and, and in many ways, struggle to keep pace. This is why it's imperative for individuals to take charge of protecting their own interests in this regard. Consultation with an experienced attorney, even if you are still on the fence about whether to file, can help you determine what steps you will need to take to protect your digital profile and information. Given that so much of our lives have become so heavily dependent on technology, it's an important consideration. 

USA Today recently published an article offering some useful advice on how to prepare your online self for a separation and subsequent divorce.

The first element involves changing passwords. Many couples view it as a sign of trust that they can share passwords, though some might argue it displays the exact opposite. The Pew Research Center indicates nearly 70 percent of couples share at least one password to an online account. Either way, an ex with access to passwords to your social media accounts, your bank accounts or your credit card accounts can be detrimental to you, particularly if the split is acrimonious.

Secondly, if you have shared services with your ex, such as a joint social media profile or Apple iCloud account or ID, it may be time for a change. Continued use of a shared account is going to give your ex access to almost everything you do, including your location, what your purchasing, photographs, new contacts and emails.

Thirdly, if you share a tablet or computer, erase those of anything that would hold information regarding your passwords, tax returns, credit card information or browsing history. On gadgets such as smartphones and tablets, you may want to consider a full factory reset to make certain the device is clean.

Additionally, you may want to restrict the privacy settings on your social media. Consider that if you stay "friends" with an ex, he or she will be able to view whatever you post. Know too that friends of friends may grant him or her access to your information, so it may be worthwhile to trim your friends list. If you choose not to take that action, just be judicious in what you post, and always be cognizant of how certain pictures or words might be used against you in family court. Examples might include posting pictures of vacations or gifts you share with your new love interest, trashing your ex online, or talking about work life or recent large purchases.

While it's important to protect your information and digital assets, it's important that you not transfer funds from a joint account to your single account without first clearing it with your attorney to ensure you can legally do this without penalty.

Any other specific concerns about divorce or family law, contact our Brooklyn law office at (718) 864-2011.

Additional Resources:

Divorcing? 5 things to do online now, July 11, 2014, By Kim Komando, USA Today

More Blog Entries:


Friday, July 18, 2014

In re E.L. - Abuse Factors Largely in Child Custody Decisions

In most cases where a parent has been stripped of child custody or visitation, the New York Administration for Children's Services must work extensively toward the goal of reunification. This is based on the principle that children benefit emotionally, physically and financially by sharing a bond with both parents.

However, our Brooklyn ACS attorneys recognize that in some circumstances, the court may find aggravating circumstances preclude the agency from this responsibility. While there have assuredly been instances in which the courts have wielded this power with greater frequency than they should, it's primarily intended to protect children (and to some extent, spouses) from abuse.

Courts will mostly look at physical abuse, but psychological abuse can be considered too. This was the case in In re E.L., before the Maine Supreme Judicial Court.

According to court records, the mother, father and two children lived a very isolated life in a rural setting, abiding by their strict interpretations of biblical teachings. These interpretations required the mother to be submissive to the father in all respects, and they each limited their contacts with the outside world. Both children were born in the unfinished home, were home-schooled and were not allowed play dates with other children.

Over time, the husband's behavior reportedly became increasingly controlling and hostile. He controlled what the mother wore, insisted she keep to an exercise routine, forbid her from using the family car or engage in innocent social interactions. He was also allegedly verbally abusive to her, demeaning her about her weight and making threats to physically harm her (by way of dragging her behind a bumper or using a cattle prod on her).

As the children grew older, he turned his attentions more toward them. In one instance, he reportedly smacked his daughter for grinding her teeth as she slept. Excessive corporal punishment was reportedly routine. He also allegedly left loaded firearms in areas accessible to the children.

The children rarely saw medical professionals, with question as to whether the younger child had ever been to a doctor.

When one of the children developed a cavity, the father reportedly refused to allow her to visit a dentist. Instead, he insisted he would drill her tooth. He bought a drill. This was the catalyst for the mother calling police one day while he was gone, and receiving help to remove her and her children from the home.

The state's child services agency filed a petition for the trial court to find aggravating circumstances that would prevent them from attempting to seek reunification with the father. The court sided with the agency, and the father appealed.

He argued that while the evidence of psychological abuse was sufficient to support a jeopardy finding, he said the court should only be allowed to consider whether the parent poses a threat at the time of the hearing. Because he was in jail at the time of the hearing, he argued he held no threat to the children. Further, he said there was not enough evidence to support a finding of aggravated circumstances because there was no showing the children were sufficiently impacted by the abuse.

The court rejected his arguments, indicating that past evidence of abuse is relevant to whether there is a threat of future abuse. Further, the court found the evidence indicated the father's actions and alleged abuse both directly and indirectly caused "severe emotional trauma" to both children.

Additionally, the court indicated that while the threshold of proof would be greater in a criminal case, a different standard is used to weigh the protection of children in a family law setting. Therefore, the trial court's findings were upheld.

We recognize that cases involving those working to extract themselves and their children from abusive relationships require careful attention.

If you are need the assistance of a Brooklyn ACS attorney, call our offices at (718) 864-2011.

Additional Resources:

In re E.L., July 1, 2014, Maine Supreme Judicial Court

More Blog Entries:

Requests for New York Child Custody Modifications Must be Convincing, June 15, 2014, Brooklyn ACS Lawyer Blog

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