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Mark Gilmer, Esq.

Wednesday, April 23, 2014

Contested Divorce in Manhattan Results in Reduced Divorce Awards

Our New York City uncontested divorce lawyers know that while it can sometimes be difficult to get on the same page with your soon-to-be-ex, there is sometimes much to be said for the benefits of compromise.

This was illustrated recently by a long-running, high-profile, bitterly contentious Manhattan divorce involving an attorney at a well-known law firm and his wife.

The New York Daily News reports that a judge overseeing the divorce proceedings scolded the wife, saying she had "bit the hand that fed her" by initiating public attacks against her husband during the case. In doing so, the judge found, she had tangibly decreased the value of his partnership with his employer, and therefore was stripped of the majority of her $2.5 million divorce settlement.

The two parties had aggressively fought one another for years, and, according to the judge, had both demonstrated behavior that was both uncooperative, troubling and offensive. While in court, they shouted at one another, made inappropriate comments and gestures to each other and sometimes each ran out into the hallway to scream it out in the middle of the proceedings.

The pair married in January 1988. They share two children together, ages 19 and 15.

They would later say they were "never happy" together, but they didn't formally split up until 2007, when they were both placed under arrest for domestic violence of each other. The wife, a stay-at-home mother, later successfully obtained an order of protection barring the husband for their home on E. 78th Street.

The allegations of abuse were detailed in several media reports, but the criminal charges were later dropped.

However, the couple was in the news again in 2011 when, still enduring the divorce, the wife complained that her husband had refused to pay $12,000 for a hearing aid for their daughter, and yet had just purchased an engagement ring worth well over $200,000 for his Playboy playmate fiancee. The fiancee later broke off the relationship.

The judge clarified that those earlier reports were misleading; the daughter had already received hearing aids, but the argument was over who should be responsible for paying them. But the damage was already done at that point, as the initial report resulted in the attorney being placed on a sarcastic "Lawyer of the Month" list on a popular legal website.

The husband then asserted to the court that all the bad publicity had harmed his practice, causing him to suffer financially and reduce the overall value of his partnership. Once valued at roughly $5 million, he said his stake had been reduced to approximately $630,000.

The wife countered that the reduction was due to the economy and her husband's own failure to work hard.

However, the judge sided with the husband. Where the wife had initially stood to earn half of the original $5 million value of the firm, the judge determined that her public tongue-lashing of her husband would result in her share being reduced to just 17 percent.

An uncontested divorce is certainly not for everyone, but there are a fair number of instances in which this kind of proceeding can preserve not only the value of assets, but the value of each party's dignity.

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

Monday, April 21, 2014

Adoption of Partner's Children in New York

Issues of child custody have never been easy, but over the years, they have become increasingly complex as the make-up of the American family has evolved.

It's not uncommon for partners to cohabitate unmarried for years, even as they raise children, acquire property and take on joint debts. There is nothing inherently wrong with this. Indeed, many couples report that such arrangements have led to long-term, stable partnerships. However, where children are involved, both parties should recognize that when one individual has no biological tie to the child and there has been no adoption, that party has no legal rights or responsibilities for that child.

Our Brooklyn family court attorneys know this is true regardless of how long the couple has been together or what role the partner has taken on during the course of the child's life. There may occasionally be a few exceptions made in extreme circumstances, but those are very rare. Unless the individual has legally adopted the child, it is very difficult to assert any sort of legal parental authority.

This was recently illustrated in the case of Moreau v. Sylvester, heard recently by the Vermont Supreme Court.

Here, the plaintiff appealed a decision by a family court dismissing his emergency petition for child custody and parentage of children to whom he had no biological tie or established legal connection. He also appealed an order denying him visitation on the grounds that he is the children's de factor parent - the only father they've ever known.

The Vermont Supreme Court rejected his argument and affirmed the ruling of the other court.

According to court records, the plaintiff and the children's mother were in an on-again-off-again relationship over the course of 10 years. they never married. The defendant gave birth to two children during this period, but the plaintiff was the biological father of neither. However, it was undisputed that during this time, he played a significant father-figure role in their lives.

Even when the couple separated for good in 2009, the plaintiff continue to maintain a relationship with the children and shared responsibility for them. The children even lived with him for a period of time when the mother's home became flooded and uninhabitable.

On a few occasions, the defendant refused to return the children to their mother on the grounds that he believed they were being mistreated. When the mother moved in with another man, the visitations became less and less frequent and the rapport of the former couple quickly deteriorated.

There were a couple of instances in which the plaintiff went to the defendant's home and banged on the door for long periods of time, despite being told to go away. He would later say he was concerned for the girls' safety or that he was trying to return items they needed for school. The mother successfully obtained a temporary restraining order against him, though this was later dismissed.

Then, without the mother's knowledge, her former boyfriend filed an emergency petition for sole custody of the children on the grounds that they were in danger. The court dismissed his requests because he was not related to the children biologically in any way.

He appealed.

The Vermont Supreme Court affirmed the denial of his request. The justices noted that case law had allowed in some instances for still-married stepparents to assert rights to the children or to be charged with certain responsibilities for them. However, custody is usually only ever awarded to a stepparent in those instances when there is clear and convincing evidence that the biological parent is unfit or there are other exigent circumstances.

The court underscored the fact that by welcoming nonbiological children into his life, he was accepting that he had no legal remedy to assert custodial rights.

This case shows why long-term cohabitating partners may consider at least formalizing their relationship with regard to child adoption. Options should be explored with an experienced Brooklyn family law attorney.

The Law Office of George M. Gilmer handles Brooklyn adoption proceedings and child custody disputes. Call us at (718) 864-2011.

Friday, April 18, 2014

Brooklyn Divorce Lawyers Help You Make a Clean Break

In filing for a divorce in Brooklyn, many couples weigh important issues such as child custody, division of property and how to divvy up debts.

However, it's also important to have a divorce attorney review your insurance situation to see whether policy updates are appropriate. This goes for health insurance, but also life insurance, property insurance and auto insurance. It's also important to review all property that is legally in each party's name, as it could impact future liability for that property. A case recently before the Florida Supreme Court reveals what can happen when these important steps aren't taken.

In Christensen v. Bowen, the court ruled that an ex-husband could he held vicariously liable for the negligence of his ex-wife, who had caused a fatal crash, simply by virtue of the fact that his name remained on the title of the vehicle. The court found that this was true even though he'd had no control over the vehicle since he had first purchased it for his then-wife as a gift several years earlier. He never drove it, didn't have a key, didn't have access to the garage where it was kept and didn't live with his ex.

While statutes regarding vicarious liability vary from state-to-state, the general principle of respondeat superior is that a third party can be held liable for the actions of another when he or she had the right, ability or duty to control the activities of the violator.

In this case, the ex-wife was involved in a deadly crash while driving a vehicle that, according to the title, was co-owned by her ex-husband.

The widow of the driver who was killed filed a personal injury lawsuit against not only the driver, but also her ex-husband on the grounds of vicarious liability. The case went to trial and the jury determined that while the former husband's name was on the title, he had no beneficial control over the car, and therefore wasn't liable.

However, the widow appealed, and the appellate court reversed the findings of the lower court on the grounds that the ex-husband did have beneficial ownership of the car in terms of property rights.

The general theory is that as a joint owner of that vehicle, he had the legal right to take possession of the car and could have potentially prevented his ex-wife from using the car, if he so chose, and therefore shielded himself from liability. However, neither the district court nor the state supreme court, which affirmed that ruling, addressed the fact that the wife too had an equal right to possess the vehicle. So it's unclear how the ex-husband could have asserted a superior legal right.

The far easier option would have been to have his name removed from the title as co-owner before the pair finalized the divorce. The fact that he did not is likely going to place him in a great deal of financial trouble, particularly because the vicarious liability claim isn't likely to be covered under any existing insurance policy.

That is, he probably didn't pay for an insurance policy on a car that he owned, but for all intents and purposes belonged to his ex. Further, her insurance firm probably wouldn't cover him as an insured because the two are no longer legally related or household residents. That means he could be paying for the judgment out-of-pocket - and personal injury verdicts are generally not dischargable even in a bankruptcy.

Having such matters handled at the time a divorce is finalized can save those dissolving their marriage a great deal of heartache in the future.

Contact our Brooklyn divorce attorneys at (718) 864-2011.

Thursday, April 17, 2014

I Am Getting a Divorce, can I get custody of my Dog or Cat?

For many New Yorkers, our four legged pets are extremely important members of our family and what happens to them when a couple divorces has become an important topic of conversation in social circles and within the legal community.

Traditionally, dogs and cats have been considered personal property, just like a car, furniture or television set and legal possession of a dog or cat after a divorce was something the divorcing parties needed to agree upon. If a divorce case went to trial, the pet’s value would be determined and he or she would be assigned to one party in the court ordered division of property.

Over the last couple of years, issues of pet “custody” have been brought in front of the courts by parties in several states and several judges have recently been willing to look at the cases beyond assigning a simple monetary value to the dogs involved. The approaches to resolving these cases are almost as varied as the cases themselves but courts are considering things like:

  • The best interests of the pet – including each owner’s work schedule, their means to provide for the pet and the space available to the pet at each spouse’s home after the divorce
  • Custody to of any children and their attachment to the pet
  • The behavior of each former spouse toward the pet

What about pet custody in New York?

In Brooklyn, New York this question is particularly timely as a local judge is about to address pet custody in New York family court for the first time. The case is Travis v. Murray, 308310/13. The case involves former spouses who are fighting over the custody of their shared miniature dachshund, Joey. Both women would like to keep Joey and since they have been unable to reach an agreement, Judge Matthew Cooper agreed to set the case for a hearing in his November 29, 2013 decision. Judge Cooper indicated in his opinion that he will ultimately make a decision about the custody of the dog in question by looking at “what is ‘best for all concerned,’”. This means that regardless of the outcome of this particular case, family courts in New York may be inclined to look at the factors he lays out in his decision including:

  • Who bore the major responsibility for the dog’s needs when the couple was together?
  • Who spent more time with the dogs on a regular basis?
  • Why did one party leave the dogs with the other party upon separation?
  • Where will the dog live if custody is given to one party over the other party?

If you are considering a divorce and have four legged “children” you will want to do your best to either reach an agreement with your former spouse about the pets. However, if you aren’t able to, it looks like the courts will now be willing to step in and help make that decision for you both. This is great news for pet parents who are concerned about the health and happiness of their four legged kids.

If you have questions about your specific situation, I’d be happy to answer your questions about pet custody and how it may play out in your New York divorce. 

Monday, March 31, 2014

Mandatory Parenting Classes Proposed by New York Lawmaker

Parents in New York will have to attend mandatory, government-run parenting classes in order for their child to proceed to the seventh grade. That's if state Sen. Ruben Diaz Sr., D-Bronx, is successful in his sponsorship of a law that would mandate that parents of elementary school children complete a series of parental support programs. 

These programs would provide parents with information regarding how to help children navigate difficulties like bullying, suicidal thoughts and struggles with sexual orientation. One of the courses would specifically focus on sexual, physical and emotional abuse. The bill would require employers to provide one day off work each year for parents to be able to attend. 

While the idea may not be bad in theory, our Brooklyn family law attorneys see a host of issues. Not only would non-compliance - even for legitimate reasons - unduly punish an innocent party (i.e., the child), but it could be used as a weapon against parents in subsequent matters before the family court. 

In general, parenting classes are only required in New York when deemed necessary by a judge. Even then, attendance - and therefore compliance - can be problematic. Not only are there significant costs associated with these programs (which parents usually must pay), but the time parents are required to take off work or shirk other responsibilities can create issues. 

Working closely with an experienced family court attorney can help prevent some of the traps associated with parenting courses and other stipulations that could result in non-compliance issues. (In other situations, such requirements can be used as leverage to modify support or visitation arrangements.)

However, mandating such courses for all parents seems extreme. But New York isn't the only state considering it. 

Recently in Alabama, state lawmakers have proposed a bill that would require divorcing couples with children under 16 to attend mandatory parenting courses intended to increase their sensitivity to each child's needs during divorce and separation. 

There are 19 other states that require parenting courses for divorcing couples. Alaska requires that parents either view an hour-long video or complete an online course. New Jersey and Minnesota require parenting courses if the parties can't agree on custody and visitation issues. 

There are some jurisdictions in a handful of states that require courses, but New York judges are allowed to decide these matters on a case-by-case basis. This kind of discretion is important, particularly when you consider that there are some situations in which domestic violence may come into play, making co-parenting efforts potentially dangerous. 

It is true that in some cases, parenting courses have been shown to reduce parental conflict. The U.S. Department of Health and Human Services reports up to a 53 percent reduction in re-litigation rates among separating parents who attend these courses. 

However, on the reverse side of the coin, some have indicated that these courses may not only be unrealistic in some cases, they could serve as an additional barrier to divorce. 

The proposal in New York is unique for the fact that isn't tied to any major familial shift, but rather would be mandated simply by virtue of the fact that the child is approaching seventh grade. A similar measure was struck down by the state legislature last year. 

Contact a Brooklyn family law attorney by calling (718) 864-2011.

Friday, March 28, 2014

Cohabitation Agreements Crucial if Couples Seek to Own Joint Property

With increasing frequency, couples are choosing to forgo the whole white-dress-and-black-tie affair and build a life together without a marriage license.

By doing this, people may think they can largely avoid the financial and legal mess of a divorce, should they ever part ways. However, if they choose to purchase property together or co-mingle any of their assets, things may actually be a bit messier than if they'd tied the knot. 

One way to avoid major headaches is by preparing a Brooklyn cohabitation agreement shortly after the purchase of the home. This is a very simple, easy way to clarify your stake in the property and how it should be divided in the event you separate. 

This message is especially timely as the housing market is making a comeback, following the 2008 crash and subsequent recession. A recent report indicated that in the last quarter of 2013, residential sales in Manhattan had spiked 17 percent from a year earlier. 

It's not clear how many of those were driven by cohabiting partners, but we do know that, according to the Centers for Disease Control and Prevention,  almost half of women between the ages of 15 and 44 were cohabiting between 2006 and 2010 - and the figure has been rising. 

There is nothing inherently wrong or bad about purchasing a property with your non-married spouse, but you should be mindful of the potential pitfalls. 

It's understandable that the discussion of a potential break-up is not a comfortable one, but having it now could save you a great deal of time, expense and acrimony down the road. And if you don't break up? Then you won't have to worry about it. 

A cohabitation agreement can clearly spell out who owns what and how the property should be distributed if you split. Most cohabitation property agreements will include the following stipulations:

  • How certain assets are owned;
  • Whether expenses and income are shared, and if so, how they are shared;
  • How new assets are owned;
  • How credit cards, bank accounts and insurance policies are to be managed;
  • How certain assets will be disseminated in the event of a separation, or at least the type of process that will be used in the event there is a dispute regarding property rights. 

Specifically with regard to the house, a cohabitation property agreement will indicate:

  • How the deed lists ownership;
  • How much of the home your partner owns;
  • Whether there are buyout rights, and what those are;
  • What will happen to the home if you separate;
  • How eviction might be handled. 

Keep in mind that these agreements, much like divorce settlements, aren't going to impact the standing either of you hold with the mortgage company or other creditors. However, if your former spouse doesn't uphold his or her obligations  under the agreement, you would have grounds upon which to take them to court and compel them to comply. 

Buying a home together is a major financial responsibility. It can be a smart choice, but you must have your eyes open to all the possibilities. You buy homeowners' insurance because you want to be prepared for the unexpected, and then hope you never have to use it. View cohabitation property agreements in the same way.

Call The Law Office of George M. Gilmer at (718) 864-2011 to learn more about cohabitation agreements in NYC.

Thursday, March 27, 2014

Relocation Custody in New York a Matter Frequently Before Family Court

One of the most common kinds of child custody cases to be determined by New York family court judges is known as relocation custody or "away custody." 

These are situations wherein the parent with primary custody, following a dissolution of marriage or child custody order, seeks to relocate with the child either out of the local jurisdiction or sometimes out-of-state, in opposition to the other parent's wishes. Brooklyn child custody lawyers know that the courts will not take these matters lightly, and they will be decided, per the standard set in the 1996 New York Court of Appeals case of Tropea v. Tropea, based upon what is in the best interest of the child. 

The fact that a parent has sole custody will not be reason enough for the court to approve a significant move with the child where the other parent is against it. This was illustrated more recently in the case of Steffy v. Steffy, which was reviewed by the Nebraska Supreme Court. Although this claim was made in a different state, Nebraska follows the same general legal standard as New York in these matters. 

According to court records in this case, the two parents were married in 2001 and their son was born in 2003. The mother was an active military member, assigned to duty at an Air Force base in Nebraska. Neither party had relatives in the area. 

In 2008, the couple divorced. The father was granted primary legal custody of the boy, with the mother receiving visitation and ordered to pay child support. The father had been active-duty military as well, but after retiring, earned a degree in childhood education and began working as a substitute teacher. However, he was unable to secure a full-time teaching position in Nebraska. The father remarried, and his wife worked as a full-time teacher in the district where they lived. 

The mother routinely exercised her visitation rights with her son, who was diagnosed with autism. The boy was on a specialized education plan at his school and, by all accounts, had been doing very well. 

Then in late 2010, the father petitioned the court for a modification of the child custody plan, with a request that he be allowed to relocate to Texas, where his opportunities to find a full-time teaching position would be more ample. The mother resisted. 

At a bench trial on the matter, the father presented an expert behavioral witness, who testified that the educational resources for the boy would  be greater in Texas as well. 

Additionally, the father indicated that he has family located in Texas. He indicated that if the move were allowed, he would continue to accommodate the boy's visitation with his mother because he viewed their connection as important. 

Meanwhile, the mother indicated that she had no plans to leave Nebraska or the military, and that she wanted to vehemently protect her visitation rights with her son. She feared that his education would be disrupted, and that she would no longer be able to take him for frequent visits to her sister's home in Missouri, as she had done during extended visitations. 

In its ruling, the court upped the child support payments owed by the mother, but denied the father's request, indicating that he had not met the burden of proof necessary to show he had both a legitimate reason to move and that it was in the child's best interest. The court indicated that the father's job opportunities out-of-state were speculative, and further there was enough evidence indicating the child's educational needs were being met in Nebraska. Additionally, a move could be difficult for the boy, and would serve to strain the relationship between both parents. 

The father appealed. 

The appellate court reversed the decision, siding with the father. That court found that the move would enhance the boy's quality of life, not significantly impact his mother's visitation schedule and was not motivated by malice on the father's part. 

The mother appealed. 

The state supreme court reversed the appellate court's findings, indicating that the district court did not plainly err in determining that the father had failed to prove the move would be in the child's best interest. The case was remanded back to the district court for further proceedings. 

As this case illustrates, away custody can be quite complex, and prevailing requires an attorney with experience across a broad range of child-custody issues. 

Contact our Brooklyn child custody attorneys at (718) 864-2011.

Wednesday, March 26, 2014

Illness Can Be Grounds for New York Modification of Spousal Support

There are many reasons a spouse could seek termination or modification of a Brooklyn spousal support order. One of those very likely to gain the attention of the court is a serious illness by either party. 

Spousal support, also sometimes referred to as "alimony" or "maintenance" is no longer the given that it was even just a few decades ago. Back then, spousal support was typically ordered paid to the wife by the husband either indefinitely or unless and until she remarried. 

However, most families today are structured so that the wife is often an equal if not higher wage earner than the husband. In these cases spousal support is either not awarded or it is very limited in both scope and duration. 

Factors that a judge will consider in awarding spousal support include:

  • The duration of the marriage and the age and health of both parties;
  • The present and future earning capacity of both parties;
  • The ability of both to become self-supporting;
  • The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
  • The presence of children;
  • Tax consequence. 

Even once the judge sets the order, it's not carved in stone. A substantial change in circumstances will prompt the court to revisit the issue, as spelled out in New York Domestic Relations Law, Article 13, Section 236. 

A good example of this was recently highlighted in the case of In re Marriage of Sisson, reviewed by the Iowa Supreme Court. 

Here, the two parties had been married for 11 years when the husband filed for divorce. He was 36. His wife was 47. They had a 10-year-old daughter. At the time, the father was earning $225,000 annually at his private accounting and tax practice. His former spouse hadn't worked since the birth of her daughter, but since their separation began working as a retail manager, earning about $40,000 annually. She then decided to return to school to become a cosmetologist. The divorce was finalized, with both parents awarded joint custody of the child and the father ordered to pay both child support and spousal support to his ex-wife over the course of the next eight years, until their child had graduated high school.

A few months later, the father remarried. A few months after that, the ex-wife began to experience tremors in her hands. The immediate impact of this was that she decided to forego cosmetology school, and returned to work as a retail manager. 

However, it was not long before it was revealed that the tremors were a precursor to something much worse. She was diagnosed with a form of terminal blood cancer. She was in the early stages, but was given between five to seven years to live. 

With this new diagnoses, the ex-wife sought to modify the spousal support payments, as her ability to work had been greatly diminished and the cost of her health care expenses now soared. The ex-husband countered that he should be awarded full physical custody of their daughter.

Ultimately, the family court rejected the ex-husband's request for sole custody, finding that the mother's illness had not at that point become an impediment to her role as caregiver. Further, the court increased her monthly maintenance and extended it indefinitely until the end of her life. Practically speaking, this would likely be less time than the original order, but the ex-husband appealed on the grounds that it was too high and there was no stipulation for the payments to end in the event his former wife remarried. 

The state high court affirmed the earlier ruling of the family court, finding no abuse of discretion. 

Generally, courts will not order spousal support to be paid for an indefinite period of time, except under circumstances that are deemed extraordinary. A terminal illness developed less than a year after the finalization of the divorce decree meets this standard.

Modification might also be warranted in cases where the party who pays the support has been stricken with a serious illness or condition. 

To determine whether you have strong grounds on which to request a spousal support modification, it's important to first consult with an experienced family law attorney.

Call The Law Office of George M. Gilmer at (718) 864-2011.

Friday, March 21, 2014

Brooklyn Child Custody: Maintaining Relations With Your Ex

Family court judges charged with deciding child custody cases weigh a long list of factors, but they will hold this above all others: The best interests of the child. 

This standard can be used to trump everything else, even what might otherwise be considered fairer for the parents. 

Brooklyn child custody lawyers note this is why we often remind our clients that, barring situations of domestic violence or other abuse, maintaining cordial relations with your ex can benefit you in these proceedings. Judges know that when two parents are warring, this is not in the best interest of the child. If one parent can show at least a valid effort to maintain peace and help foster a good relationship between the child and the other parent, the judge will take note. 

Even when there are valid concerns regarding the care provided by the other parent, these must be approached delicately in court. 

The recent case of James R. v. Kylie R., reviewed by the Alaska Supreme Court, reveals how, even when all other things are equal, cordial relations with your ex can make the difference. Although this is an out-of-state case, and family law statutes do vary from state-to-state, the same principles remain valid for New Yorkers. 

In this case, two parents of a daughter shared joint custody following their divorce. This means they both shared equal parenting time with the child. However, the father then announced plans to relocate out-of-state, both parents sought physical custody. 

The superior court determined that all other factors were essentially equal, but that the mother was "more likely than the father to facilitate a close and continuing relationship between the other parent and the child." 

The father appealed the decision, holding that the superior court failed by not finding that he had a superior capability to meet the child's needs, and further that the court had used his expression of concerns about the mother's parenting skills to determine that he would be less likely to facilitate a good relationship with the mother. 

The state supreme court in this case affirmed the decision of the lower court, finding no abuse of the trial court's discretion. 

The father had been deployed to Afghanistan when the mother announced she was filing divorce and moving out of the marital home with her infant daughter. The soldier was granted early leave to return home and deal with his family situation. 

Both parents filed for physical custody of the little girl. Over the course of the proceedings, the parents filed a total of five petitions for domestic violence protection orders against one another. The court eventually granted one of those orders, on the basis of an allegation that the mother had taken the child from the father's residence in the midst of a fight and placed her in the back seat of a car without an appropriate winter coat or other apparel. 

Later, the court granted interim joint custody of the little girl, with each spending two days on, two days off. 

But then it was announced that the father planned to relocate to North Carolina, to be closer to his family and also to begin his nursing school studies. 

At this time, the mother's attorney presented information relating to disciplinary issues the father had during his time in the Army (including those involving substance abuse), as well as indications that he had violated the interim custody arrangement on several occasions. 

The court determined that both parents had equal capabilities to meet the child's emotional and physical needs. Had the parents been living in the same state, the court indicated, it would have ordered shared parenting. However, the father's plans for relocation forced the court to make a determination on primary physical custody. What it ultimately came down to was which parent was more likely to encourage a strong relationship between the child and the other parent. 

The court touched on the fact that the father "had a poor opinion" of his daughter's mother. The judge wrote that it was not enough for the father to say that he would allow the child to see her mother. Rather, "It involves telling the kids that their mom or dad is a good person, that their mom or dad should be encouraged to have contact with the child." 

In this case, the judge noted the father throughout the proceedings had called the mother a "stripper" a "slut," "neglectful" and a "drug addict." He then turned around and told the court that he would gladly allow the mother to have a relationship with the daughter if he moved thousands of miles away. 

"I frankly don't believe it," the judge said. 

Call the Law  Office of George M. Gilmer at  at (718) 864-2011.

Thursday, March 20, 2014

Separation Agreements Fall in Wake of No-Fault Divorce in New York

A recent report by The New York Law Journal indicates that since the introduction of the no-fault divorce in New York state, the number of legal separation agreements has plummeted, even as the number of marriages dissolving has spiked. 

Our Brooklyn no-fault divorce attorneys know that for years, separation agreements steadily preceded about 7 percent of all divorces in the state, paving the way for many couples to smoothly start the process of separation. However, in the last 3.5 years, since the state legislature first adopted the no-fault model, the number of separation agreements has been halved. The New York State Department of Health reports that the number of separation agreements in divorces fell from 7.2 percent in 2001 to 6.8 percent in 2010 (the year after the law passed), 4.9 percent in 2011 and 3.2 percent in 2012. 

Meanwhile, the number of divorces reflected the opposite trend. In 2001, more than 66,000 couples in New York legally divorced. In 2009, that figure had fallen to less than 50,000. However, in 2010, it jumped back up to more than 56,000 couples, and it's continued on this upward trend in the years since. 

The reasoning is fairly straightforward. Prior to the introduction of the no-fault divorce, couples who wished to divorce either had to provide a grounds for the divorce or wait a full year. Sometimes, establishing fault in a divorce makes sense, particularly in cases of domestic violence (cruel or inhumane treatment) or when one party is seeking the upper hand in the divorce settlement. 

But for a lot of couples, this really isn't necessary. Both concede a share of the blame and simply want to part ways without dragging one another through the mud. However, this wasn't really possible prior to the introduction of no-fault divorce, unless they were prepared to wait a year. When couples went forward with that year-long wait period, it made sense to establish a separation agreement, wherein the terms of bill pay, child support, child visitation, etc. were all clearly spelled out. 

Then after the year was up, the couple could formally file for divorce. 

Now, however, spouses can put an end to their union simply by citing an irretrievable breakdown of the marriage that they allege has lasted for at least six months. They don't have to technically have been separated that long. They only must admit the marriage has been broken for that long. 

So in essence, the divorce process has gone from a two-step affair to a one-step affair. This is good news for many couples, and it's part of the reason why we've seen an increase in the number of divorces. 

However, there are still circumstances under which a separation agreement could be beneficial to couples. These include cases where it is expected the proceedings may extend beyond several months. Another example might be if one spouse needs to remain on the other's health insurance plan for the duration of the proceedings. 

If you are seeking help with either a separation agreement or an uncontested Brooklyn divorce starting at $399, we are available to help. 

Call the Law  Office of George M. Gilmer at  at (718) 864-2011.

Tuesday, March 18, 2014

Expunging a Brooklyn ACS Case: Clearing Your Name

If a report of child abuse or neglect has ever been made against you to the New York Administration for Children's Services - even if your child was never taken away and the case was closed - there may still be a report against you on file in the New York State Central Register. 

Brooklyn ACS attorneys know that it is important to seek sealing or expungement of any old ACS records. These files could be accessed by a future employer if you ever decide to apply for a job working with children. They may also be dredged up if you ever want to foster or adopt a child or even if you try to seek custody of your own children. 

No one from the state is going to contact you to inform you that these records exist, or to let you know that you have the right to seek expungement. But chances are, if there has ever been an allegation of abuse or neglect made against you - no matter how erroneous - a file exists. 

ACS cases in New York generally follow this track: Reports of neglect and abuse of children are made to the SCR. Officials with that agency make the determination of whether a report should be investigated. If a positive determination is made, the case is then forwarded to ACS (formerly the Bureau of Child Welfare). From the time that report is forwarded, ACS personnel have two months in which to complete an investigation. 

These investigations can involve social workers conducting home visits, interviewing the children at the home and talking with teachers, doctors, relatives or clergy. 

At the close of the investigation, a social worker will make the determination that the allegation was either "unfounded," meaning there is not enough evidence to suggest the allegation was true, or "indicated," meaning there is some believable evidence that child neglect or abuse has occurred. 

In cases that are "indicated," the file is kept on file until the youngest child named in the report turns 28 years of age. An "indicated" report is available not only to potential employers and family courts, but also to police, district attorneys and child welfare agencies. 

Cases that are "unfounded" will still be kept on file until the youngest child turns 28, but they will be automatically expunged at that time. Prior to that, they will still be available to police or ACS officials if they launch another investigation into the welfare of children in your care. 

The first thing to do is to find out if the SCR has a report on you. If so, you can request to have the report sealed or expunged. However, it's possible the agency could deny your request. In this case, you have the right to request a hearing. 

In some cases, it can also be valuable to request records from any clinics, hospitals or doctors from whom you or your children received treatment in the course of your case. Some agencies can take a long time filling these requests, and if you don't make them to the proper party, they can take even longer. Here again is a good reason why having an attorney with experience. 

Be mindful that you have 90 days from the time you receive notice that your name is on an SCR file in which to initiate the process to have the case sealed or expunged. That's why a lot of times, people who make the request are told their request was not filed timely. An attorney can help you in this matter by reminding the agency of a 1988 policy memo indicating that denial of a late notice requires ACS to prove they did in fact send the notice to you of the expungement process within 90 months. In many cases, this is enough to convince the agency to reconsider your request. 

Unfounded reports are often - but not always - expunged on the first request. 

Those with indicated reports can request an administrative review to have an administrative law judge consider expungement or sealing. At this review, the court will consider your request and may even come to the conclusion that the original report was unfounded. In this case, your records can be sealed right away. If not, however, you can request an administrative hearing. 

At the hearing, the two issues to be decided will be:

  • Did neglect or abuse occur?
  • Whether that neglect or abuse is relevant and reasonably-related to your working with or caring for children?

You can have witnesses testify on your behalf at the hearing. You can present medical evidence. Educational evidence. Employment evidence. Reports on therapy or rehabilitation. Anything that would show that whatever led to the maltreatment has been addressed. 

At that point, the administrative law judge overseeing the proceedings will make a decision. Even if the judge decides against you, you have the right to an appeal. An appeal in these cases can be brought on the grounds that the decision was arbitrary, capricious or not in line with the law. 

If you need help expunging a Brooklyn ACS case, call our offices at (718) 864-2011.

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