May 17, 2010
New York Governor David A. Patterson has recently signed a law that modified the statutory language regarding attorneys who represent children in the Family Court of the State of New York . We wrote about an attorney’s obligations to a child clint HERE. Attorneys representing children in New York Family Courts have the title “attorney for the child”. The former terminology referred to attorneys who represented children as “Law Guardians”.
The change is much greater than just a change in terminology. It is a change in philosophy. The terminology “attorney for the child” makes it clear that the court is dealing with a lawyer advocate for the child’s position. The proper role for the attorney for the child is to advocate what the child wants in delinquency proceedings, child custody proceedings, visitation proceedings, foster care proceedings and other proceedings brought before the Family Court in the State of New York.
The initial change in the statutory language from Law Guardian to an attorney for the child started in October 2007 when Chief Judge Judith Kay sighted section 7.2 of the Rules of the Chief Judge in which she adopted advocacy standards for attorneys who represented children recommended by the Milla Commission.
“In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in manner consistent with child’s capabilities and have a through understanding of the child’s circumstances” section 7.2 states.
” If the child is capable of knowing, voluntary and considered judgement, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interest”.
This rule requires an attorney to explain the options available to his or her child client. The attorney can make recommendations to the child which the attorney feels would be in child’s best interest. The attorney can only deviate from the child’s wishes if there is a “substantial risk of eminent, serious harm to the child” if the child wishes are granted.
The purpose of the change in language is to eliminate any confusion over what role the attorney for the child fills. Attorney’s for children now must vigorously and diligently advocate the child’s position. They must not present their opinion if they disagree with the child’s position. This law is designed to see that children’s wishes are clearly, concisely and diligently presented to court. Query: will this make custody litigation a popularity contest? Will the child pick the parent who gives in to the child’s wishes instead of guiding the child in what is in the child’s best interest?
Law office of Elliot Schlissel have been representing both mothers and fathers in child custody, visitation proceedings, child support matters, and other types of litigation before the family courts for more than 30 years. Call us at 1-800-344-6431 or email us for a free consultation.
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January 28, 2010
The Family Courts in the metropolitan New York area are overwhelmed. More judges need to be appointed to sit on the bench in the Family Courts to deal with the large number of cases that find their way into the Family Courts of the metropolitan New York area.
In a report of the New York State Committee on the Judiciary, entitled “Kids and Families Still Can’t Wait“: the urgent case for new Family Court Judgeships. It is strongly suggested that the Family Court receive twenty-one (21) new judgeships. This report states that there is a crisis in the Family Courts in New York and the need for more judgeships has been known about for a considerable period of time.
Even the appointment of twenty-one new Family Court judges will not completely deal with the problems within the Family Courts. However, this would be a way to start dealing with the overcrowding in the Family Courts. Unfortunately, due to the current budget situation in New York, it is unlikely that twenty-one new judges will be appointed.
Picture courtesy of IPKat.
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!
Picture Courtesy of SouthWesternDifference.info
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.
November 24, 2009
Nassau County is one of the richest counties in the United States. The Family Court in Nassau County is located at 1200 Old Country Road, Westbury, New York 11590. The judges, court officers, administrators, clerks, attorneys and litigants are all presented with difficult situations.
The courthouse is totally inadequate to serve as a location for the Family Court of Nassau County. The building is old, dilapidated and too small. The air conditioning does not cool the hallways.
There is no adequate waiting room. Lawyers and their clients are often forced to wait in crowded hallways. God knows what would happen in this overcrowded building should there be a fire. During the past fifteen (15) years, Suffolk County, Kings County and Queens County have built beautiful new court facilities. Unfortunately, Nassau County has not had the foresight to provide its residents with a decent, adequate, modern facility. This is an embarrassment! The building structure is not worthy of the litigants, judges, clerks, court officers and the community it serves.
Picture courtesy of Google Maps.