Representing Children, “The Attorney For The Child”

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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Family Court in New York – Speedy Need for Justices!

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.

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International Custody Drama

Father, an American citizen, seeks his son’s return from Brazil:

David Goldman’s saga began in 2004. His wife took his son on a vacation to her native country, Brazil, in 2004. She then brought a divorce proceeding in Brazil. She stayed in Brazil after the divorce proceeding in what Goldman and the US Government referred to as a child abduction.

The boy’s mother eventually remarried. However she died last year. Her relatives and her second husband have been involved in legal proceedings keeping the boy in Brazil. The Family alleges that the boy, Shawn, desired to stay in Brazil. Recently the Brazilian Supreme Court said that Shawn’s own feelings should be taken into consideration regarding this matter. David Goldman had been litigating in Brazil for more than five years to try and have his son returned to him.

This litigation involving Goldman’s son impacted relations between Brazil and the United States. Earlier this year, United States Secretary of State, Hilary Clinton, asked the Brazilian Government to have Shawn returned to his father’s custody in the United States. The United States House of Representatives has also passed a resolution asking Brazil’s government to return Shawn to live with his father in the United States.

The Brazilian Supreme Court has ordered that Shawn be returned to his father. David Goldman went to Brazil and picked up Shawn. Child and father are now back in the United States getting to know each other again. The child custody lawyers at the Law Offices of Elliot Schlissel are experienced in handling International custody disputes. Should you have questions about an International custody matter feel free to contact the International custody lawyers at the Law Offices of Elliot Schlissel at 1-800-344-6431 or by e-mail.

Picture of Sean and David’s reunion on 12/24/09 courtesy of Bossip.

Father’s Rights Attorneys

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!

–Elliot S. Schlissel, Esq.

800-344-6431

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Help! My Child Support is Too High

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.

–Elliot S. Schlissel, Esq.

800-344-6431

Fathers’ Rights – Video and Website

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.

Divorce in New York – Video by Attorney Elliot Schlissel

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

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.

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N.Y. Validates License-less Religious Marriages But Not N.J., Unless…

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.

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Are Non-Modifiable § 516 Non-Marital Child Support Agreements Unconstitutional?

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.