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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 . . .


Sunday, October 5, 2014

Court to Weigh Whether Methadone During Pregnancy Equals Child Abuse

In a case closely watched by child safety advocates across the country, the New Jersey Supreme Court is slated to decide whether a pregnant mother who underwent methadone maintenance therapy during gestation should be found guilty in family court of abuse and neglect of her infant son, who was born dependent on the drug.

In Division of Youth and Family Services v. Y.N., both the trial court as well as the state's appellate division have ruled the mother's conduct was a form of abuse and neglect, given the child was born with withdrawal symptoms characterized as severe. He had to be hospitalized for an additional 47 after he was born.

Our Brooklyn ACS defense attorneys recognize the legal reasoning and outcome here could be important for local courts in determining how to proceed in similar cases.

While other courts have held mothers who abuse drugs during pregnancy can be held accountable in criminal and family courts, this case is somewhat unique in that the mother's use of the drug was under the supervision of a doctor. At the time she conceived, she was abusing heroin and painkillers. When she learned she was with child, she began seeing a doctor. Several months later, she started on a methadone treatment program, and entered into a medical facility.

Physicians and other medical staffers warned her that if she immediately stopped using all substances, she could have a miscarriage. Not wanting to risk losing her child, she reportedly believed the best option was to undergo chemical dependency treatment under the care of a doctor.

However, both lower courts held it did not matter whether the drugs were taken legally or illegally. As the woman's criminal defense attorney would later argue to the high court, the appellate court's decision effectively held "medical treatment equals harm." Here, the mother had been told the safest course of action was methadone treatment.

Chief justices posed several possible scenarios:

Would a pregnant woman avoid liability for illegal use of drugs if a doctor told her to continue taking them because withdrawal would be too dangerous?

Would a mother who used methadone on her own, without consultation of a physician, be similarly protected?

Interceding as amicus, the National Advocates for Pregnant Women argued the woman should be cleared of any criminal wrongdoing, asserting methadone treatment overseen by a physician was reasonable for someone in her circumstances.

However, prosecutors representing the state's Division of Child Protection and Permanency, requested the finding be upheld. They say at its core, the case is about the serious risk of harm to the fetus. It was noted the mother had a six-year history of drug abuse, and used other illegal substances throughout part of her pregnancy. The prosecutor asserted to the court the mother was unwilling or unable to provide necessary protection to the child. She indicated other factors played into the final determination of abuse and neglect, but conceded the mother's methadone use was part of it.

It's worth noting there are methadone treatment centers in New York that specifically provide care to pregnant women.

Those who have undergone this treatment and are now enduring an ACS investigation should contact an experienced family law attorney as soon as possible.

Our Brooklyn ACS defense attorneys can be reached at (718) 864-2011.

Additional Resources:

Case Tests Whether Methadone Treatment During Pregnancy is Abuse, Sept. 10, 2014, By Michael Booth, New Jersey Law Journal

More Blog Entries:


Thursday, September 25, 2014

Adrian Peterson Case and the Legality of Corporal Punishment

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

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

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

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

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

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

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

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

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

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

We're here to help.

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

Additional Resources:

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

More Blog Entries:

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


Saturday, September 13, 2014

In re A.E. - Brooklyn ACS Lawyers Discuss Spanking as Discipline

Parents have the fundamental right to discipline their child as they see fit - within the confines of the law. However, our Brooklyn ACS lawyers recognize problems can arise when definitions of appropriate discipline vary.

Often a parent's cultural background and personal upbringing play a role in their views on discipline. In a place diverse as New York City, sometimes the chasm between interpretations can be wide.

The same might be said of Los Angeles, where the case of In re A.E. played out before the California Court of Appeal for the Second Appellate District, Division Eight. This case involved a young mother and father, both raised in rural Texas, who had moved to L.A. with their 3-year-old daughter.

One evening last summer, a neighbor called police after hearing a young child being spanked. The county sheriff's department responded, and found the young girl had two, six-inch welts on the back of her right leg, as well as several more on her buttocks.

The father, seemingly without hesitation, admitted he had struck the girl with his belt because she was misbehaving that day. Both parents considered spanking to be an appropriate form of discipline, though the mother denied knowing anything about welts on her daughter's legs.

The father was arrested for child abuse. After being red his Miranda rights, he told police the incident occurred when his daughter disobeyed her mother for the fourth time in less than one hour. The father was quoted as saying he did not act out of sport or fun, but "So that one day, just as I thank my parents for their care of me, she will do the same."

He indicated that he disciplined her with his belt on her butt. However, she turned at the last second, and he mistakenly struck her leg.

Following his arrest, a case worker with the state's family services agency opened a file on the family. The caseworker noted no signs of mental illness, drug abuse or any other circumstance that might indicate a danger to the child. The mother's uncle, who was temporarily living with the family, told the caseworker the parents were "good people" who were "doing their best" to raise the girl. He told the caseworker he had never seen either parent inappropriately discipline the girl.

The condition of the home was found to be safe and clean and all the child's needs were being met.The caseworker even noted the father was cooperative and motivated to change. He had even purchased a parenting book and later conceded to understanding why the discipline was not proper, and how he would react differently in the future.

And yet, a petition was filed by the state agency indicating the father was a danger to the child and should be removed from the home.

The court initially only allowed monitored visits between father and child, with the requirement he attend parenting courses. However, he was not permitted to have overnight visits in the family home.

He appealed on grounds that he was not a substantial danger to the child's physical and mental well-being. The appellate court agreed, finding the lower court failed to find by clear and convincing evidence the girl's health, safety, protection or physical or emotional well-being were in danger.

These kinds of cases can result in a substantial and unnecessary emotional and financial burden being placed on a family. Our attorneys are committed to helping your family achieve a swift and just solution to your ACS case that is in the best interest of you and your children.

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

Additional Resources:

In re A.E. , Aug. 4, 2014, California Court of Appeal for the Second Appellate District, Division Eight

More Blog Entries:

In re J.T. - Grandparent Visitation Rights in New York, Sept. 1, 2014, Brooklyn Family Law Attorney Blog


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.


Tuesday, May 20, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse is not grounds enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact substance abuse had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year in their previous hometown in Nebraska.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work. She admitted prior methamphetamine use, saying she was clean for seven years, but then relapsed in 2012. She conceded that authorities had removed her children before due to her drug use. She later completed a court-ordered program, and the children were returned. She admitted to another relapse in March 2013, but said the girls were not present.

Later, after a period of time during which social workers could not reach her, she came into the offices at the agency's request. She indicated the girls were with her mother, she had been staying with a boyfriend and had been using. Social workers noted her odd behavior during the interview, which involved wildly swinging emotions, from laughing to crying to anger. A drug test confirmed substances in her system, and staffers who administered the test believed she was under the influence at the time.

Child protection workers arrived at the grandmother's home the next day. They found the residence to be spacious, clean, appropriately furnished and the children appeared well taken care of.

The mother stated she visited the children with the grandmother's supervision, but that she ultimately wanted the girls back in her care. She said she changed her phone number, ended a number of unhealthy relationships and was willing to attend inpatient treatment.

She did later attend outpatient treatment, but then relapsed again and was admitted for residential treatment. At this point, the state filed a petition alleging that the girls should be classified as "children in need of assistance." This essentially would take formal custody away from the mother.

The mother was not represented by an attorney in court. She did not object to any of the state's exhibits and she presented no evidence of her own. The court declined immediate adjudication, instead calling for another hearing. Yet again, the mother had no legal representation, and did not refute any of the items the state entered into evidence. 

Subsequently, the court ordered the girls to be formally placed in the care of their maternal grandmother.

At that point, the mother retained a lawyer and appealed. The appellate court reversed, finding that the state failed to meet its burden of proof to show that the girls needed to be adjudicated as children in need of assistance. The state then sought review from the Iowa Supreme Court.

The high court indicated that simply showing that a parent was a methamphetamine addict - without more - isn't sufficient evidence to establish that there is an immediate risk of physical injury to the child.

In New York, there have been cases where a parent with a history of substance abuse was chosen to be a more fit parent than other relatives. An example is Worowski v. Worowski, a 1983 decision rendered by the Appellate Division of the Supreme Court of New York, First Department. Here, the court ruled that a mother with a history of alcoholism who was improving was a more fit parent than a 74-year-old father who had little to no meaningful interaction with the child.

This is not to say that New York family courts will turn a blind eye to children who suffer as a result of a parent's addiction. However, addiction alone is not necessarily enough to warrant stripping the parent of custody rights. Every case will be different.

Consulting an experienced family law attorney is the best way to determine your options.

If you need assistance in dealing with New York ACS, call our offices at (718) 864-2011.

Additional Resources:

In re: Interest of J.S., April 25, 2014, Iowa Supreme Court

More Blog Entries:

Failure to Follow Brooklyn Child Custody Orders Can Result in Sanctions, May 1, 2014, Brooklyn ACS Attorney Blog


Wednesday, May 14, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse alone is not ground enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact that substance abuse has had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict alone is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work.


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