Father’s Rights Attorneys
November 30, 2009
There is a growing feeling among fathers who deal with the Family Courts and the Supreme Courts in the State of New York on matrimonial and family law matters that they are being treated unfairly. The law in the State of New York says that fathers and mothers have equal rights to custody. There is no presumption that mothers should receive custody and fathers should pay child support. However, many fathers who have dealt with the legal system come away with a sour taste in their mouth due to bias in favor of the mother.
Father’s rights attorneys are matrimonial and family law attorneys with extensive experience in protecting the rights of fathers involved with custody, support and visitation matters. If you feel you are being treated unfairly, contact the father’s rights attorneys at the Law Office of Elliot S. Schlissel. We can help you!
800-344-6431
Picture Courtesy of SouthWesternDifference.info
Help! My Child Support is Too High
November 25, 2009
Child support in the State of New York is paid by the non-custodial parent to the custodial parent. The amount of child support is usually set in a Judgement of Divorce, a Separation Agreement or by the Family Court. In most instances, the child support is paid by the father of the child to the mother of the child.
Daddy Loses His Job
What happens if Daddy loses his job? Unfortunately for Daddy, the answer to this question is that the child support stays the same. In a perfect world the father can call the mother and advise her about his loss of employment and the mother could stipulate to the reduction in child support. This stipulation could thereafter be submitted either to a Family Court judge or a Supreme Court judge to modify the prior order or judgmentregarding child support. In the real world, this doesn’t happen.
Downward Modification of Child Support
A parent who loses his job must bring an application either to the Family Court or the Supreme Court for a downward modification of his or her child support. After several conferences, there will be a hearing before a Support Magistrate or judge. The parent having the obligation of paying the child support will have to show that the loss of employment was not the fault of the non-custodial parent. He or she will also have to show this was an unforeseen change in circumstance and that he or she has used due diligence to obtain other employment.
This process can take many months. In theory, the child support obligation continues to remain the same until there has been a decision by the Support Magistrate or judge after a trial. Thereafter, the child support modification is made retroactive to the date the initial petition was submitted to the court. The problem with this procedure is that the Support Collection Agency is not geared up to give the parent who pays the child support the credit for his or her overpayment during the months the downward modification was pending, unless you can bring it to the court’s attention.
Restitution for Overpayment
Due to the current economic crisis and the numerous applications by non-custodial parents to reduce their child support obligations, the procedures of support collection agencies need to be modified to provide restitution or credits to the parent who has overpaid his or her child support.
Reduce your child support! If you feel that your child support is too high, contact the child support attorneys at the Law Office of Elliot Schlissel at 800-344-6431.
800-344-6431
Fathers’ Rights – Video and Website
August 13, 2009
In addition to his wide-ranging experience in most major areas of law in general, and his extensive experience in Matrimonial and Family law in particular, Mr. Schlissel has a particular expertise representing fathers in child custody matters.
Feel free to browse his Father’s Rights website for more information about that, or contact the office directly.
You may view the video above to get information about Mr. Schlissel’s matrimonial practice in the Five Boroughs of New York City, Nassau and Suffolk counites. Our office has been representing matrimonial clients in New York clients for over 30 years. You can get additional information from our matrimonial law site and by contacting our office.
Navigating the Matrimonial/Custodial Jurisdiction Gauntlet in NY Where One Spouse is Out-of-State
May 7, 2009
As an office with a large matrimonial/family law practice, we often work with both out-of-state clients, as well as in-state clients whose spouse has moved out of state, where custody of the children is an issue. There are a number of laws in New York relating to whether New York has jurisdiction to handle a couple’s divorce, the child custody issues, or both. This article will outline some of the major jurisdictional hoops parties must jump through in order for New York courts to decide a matrimonial/custody case.
Imagine that a couple lives in New York and they have two elementary school children. The couple has marital trouble for a period of time and the wife and children left New York several months ago to live in her home state of Florida. There are several jurisdictional questions to consider before a New York court could handle all aspects of this case.
First, New York’s Long-Arm statute must give it jurisdiction over the out-of-state spouse. CPLR § 302(b) gives New York jurisdiction over a spouse that has moved out of New York when the spouse that is starting the action is domiciled in or is a resident of New York when he starts the case, as long as New York was the “matrimonial domicile” of the couple before they separated.
Next, for New York to have jurisdiction over any matrimonial action, Domestic Relations Law (“DRL”) § 230 (2) must apply. This statute, in part, requires that the parties must have resided in New York as husband and wife and that either spouse is a resident of the state for at least one year leading up to the commencement of the divorce proceedings.
But even if one is able to have a matrimonial case heard by a New York court, that fact alone does not necessarily mean that the court will have jurisdiction over matters of custody. It is possible that the jurisdictional requirements for the divorce will be met but that the requirements for custody jurisdiction will not be met, and that some other state will have jurisdiction in a custody proceeding. Vanneck v. Vanneck, 404 N.E.2d 1278, 1280, 1282 (1980).
DRL § 76, enacted to conform to the Uniform Child Custody Jurisdiction Act (“UCCJA”), only grants New York jurisdiction to make initial child custody decisions when (a) New York is the “home state” of the children involved (see § 75-a(7) for definition) in the six months preceeding the legal proceeding.. Additionally, (b) no other state must have custody jurisdiction according to the definition in (a) above, or, if it does, that it must have declined jurisdiction on the grounds that New York would be a more appropriate forum.
Situations exist where a matrimonial/custody case would be bifurcated, with, for example, the New York Supreme Court handling the divorce and property distribution aspects of the case and Florida courts deciding matters of custody. As one judge put it, such cases “turn[] on the connection between divorce jurisdiction and custody jurisdiction. At one time the two may have been inseparable; but the P.K.P.A. [Parental Kidnapping Prevention Act], in particular, has placed these issues on different jurisdiction terrain.” Foley v. Foley, 170 Misc.2d 87, 89 (Sup. Ct. Monroe Cty 1996).
Although courts will consider whether they have jurisdiction over the divorce and custody sides of a case separately, how that decision affects the best interests of the children involved will be considered. The hardship inherent in different states handling the divorce and custody issues separately will also be factored into a court’s decision about whether to bifurcate the two issues in the case. Vanneck, supra, at 1280.
If a couple finds itself in a situation where one spouse has lived outside of New York with the children for more than six months and the other spouse still lives in New York, it would seem that there are a couple of options. Based on the statutes mentioned above, the state where the children live would normally have jurisdiction over issues of custody and the couple may elect to litigate the divorce there too if that state’s jurisdictional rules would allow that. This would simplify the process by avoiding a split litigation between states and it would avoid forcing the spouses to hire two lawyers each, one for each state.
Alternatively, the out-of-state spouse may wish to simply consent to New York’s jurisdiction over issues of custody, but this is not so simple because matters of jurisdiction cannot be waived or stipulated to. Koshetz v. Lamberti, 262 A.D.2d 611 (2d Dept. 1999). However, since a court will make jurisdictional determinations based on the particular facts of a case, the parties may stipulate to certain issues of fact, which the court will use as its basis to find that it has custody jurisdiction. Caroline B. v. Thomas A.B., 16 Misc.3d 1128(A) (N.Y. Fam. Ct., 2007).
For example, if it is somewhat ambiguous whether the wife left New York permanently or simply to get some time away from her husband, the couple may stipulate to the fact that her stay out-of-state was a mere “temporary absence” and will not be credited to establishing “home state” status for the child in that other state. See DRL § 75-a(7). The parties may therefore stipulate to facts upon which the court will make a jurisdictional determination, but they may not stipulate to, waive, or consent to jurisdiction where the facts do not warrant it.
The bottom line is that anyone contemplating divorce, especially in less-than-typical factual situations, has many factors to consider before deciding where and how to proceed. As always, if you need assistance in any matrimonial, custody, child-support, paternity or visitation matter, you are invited to contact our office.
Picture courtesy of foreclosure-support.com.
Prof. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.
He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.
He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.
The Surrogate held that the validity of the marriage in question is governed by New York law, and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.
I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.
Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.
Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize the “public acts, records, and judicial rulings” of other states.
Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.
The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)
Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.
Picture courtesy of trendsupdates.com
As an office that has a very strong Matrimonial and Family practice, it is with great interest that we read Noeleen Walder’s recent article in the New York Law Journal (“NYLJ,” subscription required). She reported that the current non-modifiable status of § 516 child support agreements for non-marital children, may soon be changing.
Child Support agreements between the parents of children who were born in the context of marriage may be modified without court approval. But child support agreements made between parents of a child born out of wedlock may only be modified by court order, and not by mutual agreement, pursuant to § 516 of NY’s Family Court Act.
According to the NYLJ, the Appellate Division, First Department, in the unanimous decision in Barbara N. v. James H.N., 4399, invalidated a § 516 non-marital child support agreement. While not directly ruling on the constitutional question, the panel held that “to the extent that the statute precludes attempts to reverse support agreements for non-marital children, its constitutionality is questionable.”
What is the constitutional question? Child Support compromises are valid without court order for marital children but not for non-marital children. This poses an Equal Protection problem under the 14th Amendment. The panel suggested that § 516 does not offer equal protection under the law by treating marital children differently from non-marital children.
Based on this and other objections, some state legislators have proposed repealing § 516, and therefore A02578/S2975 is currently before the state Assembly and the Senate Codes Committee.
Picture courtesy of Gov Gab.
New York Court Grants First Lesbian Divorce
April 3, 2009
Our office practices a great deal of matrimonial law, so it is with great interest that we read about a Broome County New York Supreme Court justice who just granted Lauren Wells-Weiss and Shari Weiss (married in Canada) a divorce. By doing so, it implicitly also recognized the fact that they were initially married, the first time this has happened in the marriage or divorce context in New York.
The New York Surrogate’s Court has already recognized a same-sex marriage performed in Canada for the purpose of an Administration proceeding, as reported on this site in February.
I am frankly not surprised by the recognition of Canadian same-sex marriages for the purpose of granting a divorce. That issue is not fundamentally different from the one considered by the Surrogate’s Court. And in the recent case of Lewis v. NYS Dept. of Civil Service, 872 NYS 2d 578 (3d Dept 2009), the Appellate Division held that marriages validly performed in another jurisdiction, unless void as a matter of public policy or specifically excluded by New York’s Domestic Relations law, are recognized as valid by New York State as well.
The Court held that New York’s recognition of validly-performed foreign jurisdiction same-sex marriages do not fall into either exception to New York’s general recognition of out-of-state marriages. It pointed out that NY’s Domestic Relations law does not specifically invalidate foreign same-sex marriages. The court also clarified that New York has only invalidated a few types of marriages based on public policy, including incestuous or polygamous marriages, and marriages where one party was under the age of consent.
That being the case, it comes as no surprise that a situation has arisen in which a New York court has had to decide whether it may grant a divorce in the case of a Canadian same-sex marriage, a new application of an emerging pattern of foreign same-sex marriage recognition in New York.
Picture courtesy of NevadaThunder.com.
Andrew Schepard and Theo Liebmann, in the March 11th edition of the New York Law Journal, listed three important changes in New York’s new Rules of Professional Conduct as they apply to lawyers representing children in Family Court. (I explored how the new rules would affect conflicts of interest here.)
Schepard and Liebmann’s main focus was on lawyers representing children and how the new rules would clarify an attorney’s guidelines with regard to when they may take a different position from that of their child client. They pointed out the current rule, as layed out by the Chief Judge in Administrative Order § 7.2, is substantially similar to the new Rule 1.14(b). The new rule states that “[w]hen the lawyer reasonably believes that the client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest, (then) the lawyer may take reasonably necessary protective action…” (emphasis and parentheses added) This “reasonably necessary protective action” includes substituting the law guardian’s judgment for the child’s judgment when those three requirements are met.
These rules set a high bar that a Law Guardian must meet before she may supplant her judgment for her child-client’s judgment. Schepard and Liebmann give the example of 10 year old Amkia P. (684 N.Y.S.2d 761 (Fam. Ct NY 1999)) who required medication for a life-threatening condition. She was in temporary Foster Care, but desired to return to live with her mother, who the Family Court believed would be not be capable of properly caring for her. Despite Amkia’s protestations, her Law Guardian advocated that she remain in temporary foster care.
Under the new rule, the Law Guardian in that case probably would have been allowed to substitute her judgmenet for the judgment of the client under those facts because Amkia appeared to be of diminished capacity (as a 10 year old), “at risk of substantial physical… harm,” and unable to take care of her own interests (again, she was only 10).
As Schepard and Liebmann point out, a Law Guardian in such a situation should think twice and three times before supplanting a client’s judgment with her own because a court will find that she should have advocated for home care to ensure that Amkia received the medicine she needed.
The new rules offer more guidance than attorneys may have had before, but they do not make these difficult judgment calls much easier.
Picture courtesy of George I. Kita.
As a law clerk in a law office that does a tremendous amount of Wills Trusts and Estates work, I found this story pretty interesting.
Professor Volokh at The Volokh Conspiracy reported on a New York County Surrogate’s Court case, which granted “surviving spouse” status to a “husband” whose same-sex marriage was performed in Canada. In the case of In re Estate of Ranftle, a man married another man in Quebec and they moved to Manhattan. One of them died, leaving his husband and three siblings.
The question was whether New York should recognize the Canadian same-sex marriage as valid for the purpose of giving the surviving husband the decedent’s entire estate, where the decedent died without a Will. Had he left an inheritance to his husband in a Will, this would not have been an issue. But since he did not, his property passes pursuant to New York State intestacy law under EPTL 4-1.1.
The Surrogate ruled that, pursuant to the general presumption of the validity of foreign marriages, New York should recognize any marriages performed in a foreign jurisdiction unless the marriage violates some major public policy or “Natural Law.” Case law in New York has established that this exception only applies in cases of marriages involving incest between close relatives. Also, it argued that since all that was at stake in this case was the distribution of property, there was no reason to go outside of the generally held principal of recognizing foreign or out-of-state marriages.
Interestingly, Prof. Volokh also pointed out an interesting case from 1948 in California, In re Bir’s Estate, where a man who married two wives died, where he had married both wives legally in India, where polygamy was legal at the time. The California court held that in the case of recognizing a polygamous marriage, if all that’s at stake is the distribution of property, the public policy against polygamous marriages would not cause that state to actively not recognize that marriage.
I wonder what would happen if a man married two wives today in a country where that is legal, and then moved to New York. But let’s say the issue is not related to the distribution of his property. What if the husband got a job working for New York City or State government and the issue was whether both of his wives could receive health benefits as a spouse under his insurance plan?
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