May 31, 2010
When custody or child visitation issues occur between separated or divorced parents, one or both parents sometimes seek to curry favor with the child or children. The parent takes this action either to ensure that he or she will receive custody or receive child support payments. In addition to currying favor with the child, some parents seek to undermine the relationship between the child and the other parent. When the child develops a strong resistance or rejection of a parent, that is disproportionate to that parent’s behavior, and this undermines that parent’s relationship with the child, this is referred to as parental alienation syndrome(PAS).
In a Canadian study conducted between 1989 and 2008 involving claims of parental alienation, there were allegations that parental alienation syndrome was present in 175 cases. The study showed that in 106 out of 175 cases, the courts found that there was parental alienation present. In 60% of the cases the mother was the parent involved in alienating the child from the father. In 31% of the cases the father was the parent involved in alienating the child against the mother. The study found that although there were gender differences involved in the alienation of children, mothers were more likely to make unsubstantiated claims of alienation against fathers. The study also found that alienation is most commonly perpetuated by the custodial parent against the noncustodial parent.
In the Canadian study the most common judicial remedy of dealing with parental alienation was to modify the custody arrangement.
Parental alienation is being recognized by the courts in New York more readily then it has been in the past. There is still a reluctance among many judges to use changing custody as a means of addressing this issue. Parental alienation may have the impact of reducing one parents access to visitation with his or her children. The more significant affect of parental alienation is to deprive a child from having a relationship with two loving parents.
Should you have any questions or issues concerning parental alienation feel free to contact Elliot Schlissel, Esquire at Schlissellawfirm.com or 1-800-344-6431.
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.
Picture courtesy of warrickcasa.us.
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.
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.