The Elliot Schlissel New York Law Blog

Justice Palmieri in the Supreme Court located in Nassau County, New York, has rendered an unusual decision in a divorce case.  Divorce Law in New York does not make fault a factor in equitable distribution of assets unless there is “egregious marital fault.”  In this case, the wife’s husband of ten years had been convicted of sexually molesting her eight year old granddaughter from another marriage.  The attorney for the wife sought to make an inquiry with the husband with regard to his conduct being a potential factor in the equitable distribution of the property.  The husband’s attorney brought a protective order application alleging that this conduct is not material to the equitable distribution of assets.

Sexual Abuse Is Egregious Fault

Judge Palmieri, in his decision, stated “it cannot be seriously argued that this could never be a sufficient basis…for finding ‘outrageous’ or ‘conscious shocking’ conduct no matter what disclosure of the underlying facts might reveal.”  He therefore, allowed the discovery of material to develop the facts in this situation.

Mrs. G stated that after her husband was convicted she had a nervous breakdown.  She was forced to take medication which prevented her from functioning properly.  She needed therapy, but could not continue with the therapy because her husband refused to pay for the treatment.

Judge Palmieri in his decision stated “notwithstanding the plea, no trial Court can fairly determine whether the defendant’s conduct was sufficiently outrageous or conscious shocking to affect equitable distribution on a conviction alone.”  This is due to the fact plea bargains are often the result of negotiations in which various factors come into play.  The judge went on further to say “the issue is his conduct and the effect on the plaintiff and his alleged victims cannot be used as shields.”

Conclusion

Judge Palmieri has deviated from the established law with regard to allowing fault to be taken into consideration in the equitable distribution of assets.  I presume this case will be appealed.  It is my expectation that it will be reversed by the Appellate Division.

New York Fathers Rights’ Lawyers

Sometimes when fathers come into Court, they find the playing field is not level.  The Family Court is often referred to as “mommy’s court.”  However, there is a way to level the playing field and that is to hire the most experienced, most competent aggressive fathers’ rights lawyers available.

The attorneys of the Law Offices of Elliot Schlissel are recognized throughout the metropolitan New York area as the premiere father’s rights lawyers.  We litigate issues involving divorces, child custody, visitation, changing child custody, child support, child abuse, child neglect, annulments, parental alienation cases, as well as orders of protections. Call us for a free consultation at 1-800-344-6431, 516-561-6645, 718-350-2802.

Nassau County, Long Island, now has a new pilot program designed to help 16 and 17 year olds charged with a crime avoid going to jail.  Nassau County is one of nine counties throughout New York State to have a specific court designed to hear cases involving 16 and 17 year olds who previously have been treated as adults subject to criminal prosecution in the criminal courts in New York.

Jonathan Lipman, the Chief Judge in the State of New York, brought about this initiative because he feels teenagers charged with certain crimes should not be charged as adults within the criminal justice system in the State of New York.

Criminal Prosecution of Minors In New York

New York is the only state in the country that currently prosecutes non-violent 16 and 17 year old as adults within its criminal justice system.  Nassau County District Attorney Kathleen Rice recently made the following statement with regard to this pilot court program “we’re prepared to show the rest of the state that this approach is the best way to rehabilitate young offenders, save tax payer money and protect the public.”

How This New Program Works

Sixteen and seventeen year olds who are charged with non-violent criminal offenses are initially screened by case workers from the Nassau County Department of Probation.  If they are found to be at low risk of committing crimes in the future their case can be dismissed.  If they are found to be high risk of committing crimes in the future, they are put through an extensive screening process and both the lawyers and the judge look for a solution that will solve the teenagers underlying problems and protect the public.  The purpose of the teenager court is to find an alternative to sentencing teenagers to jail.  Teenagers convicted as adults in the criminal courts receive permanent criminal records which can affect the rest of their lives.

Teenager Recidivism

A statistical analysis of the records of teenage boys and girls who have an initial contact with the criminal justice system finds that more than 80% of them will be rearrested by the time they are 28 years old.  It is hoped teenagers who make bad judgment calls will be given the opportunity to have a second chance, a clean record and be able to get out of the criminal justice system.

Juvenile Defense and Criminal Defense Lawyers In New York

Juveniles charged with crimes in New York can be prosecuted in either Family Court, Criminal Court or now the Teenager Special Court.  The Law Offices of Elliot Schlissel and their dedicated attorneys, for more than 30 years, have represented men and women charged with large varieties of criminal offenses.  Our office has extensive experience representing individuals charged with computer and internet crimes, traffic tickets, white collar crimes, sex crimes, weapons possession, driving while intoxicated (DWI/DUI), shoplifting, burglary, assault and battery, domestic violence, drug offenses and other misdemeanors and felonies.  Contact us for a free consultation.

Private Schools and the Autistic Child

Child support in all fifty states in the United States is based on the Child Support Standard Act.  This statute lays out a schedule of child support payments and ancillary expenses the non-residential custodial parent must contribute to.  However, private school tuition is not one of the items included as a necessary payment obligation for non-custodial parents.  Courts have discretion to adjust the child support figures related to the special needs of a disabled child.  Divorce courts can utilize their discretion to order a parent to contribute to private schooling costs for an autistic child with special needs.  In situations where the public schools do not offer the specialized programs for an autistic child it may be in the child’s best interest to attend a school that can deliver specialized educational services related to autism.  The tuition costs for these types of schools should be taken into consideration by courts in making custody decisions concerning autistic children.

Emancipation and the Autistic Child

In the State of New York, a child is considered emancipated at the age of twenty one unless the child at an earlier age marries, enters into the armed services, or is working and self supporting.

An autistic child may never be emancipated.  Courts should consider whether a child’s disability should extend the time the child is unemancipated for child support purposes.  A child over the age of twenty one who is disabled and incapable of maintaining himself or herself because of illness or disorder should be considered to be unemancipated even if over the age of twenty one.

Conclusion

Autism is a tragedy affecting more and more American children.  Divorces caused by the tension and stress created by the necessary dealing with the unique problems of the autistic child are on the rise.  Courts, parents, and attorneys need to cooperate in creative decision making with regard to dealing with unique problems associated with raising an autistic child.

About the Author

Elliot S. Schlissel, Esq., has been practicing Family and Divorce law in the metropolitan New York area for more than thirty years.  Elliot and his team of dedicated, hard working lawyers deal with all aspects of matrimonial and family law including issues involving divorce grounds, family law, child custody, changing visitation, child abuse and child neglect, drafting separation agreements, prenuptial and post nuptial agreements.  We also have litigated cases involving mothers’ rights and fathers’ rights.

Special Needs For The Autistic Child

Autistic children require expensive therapy and special education regimes that are not available in local school districts.  This results in additional expenses for families.  Judges hearing divorce cases involving autistic children need to pay special attention to the needs of the autistic child.

Residential Custody of the Autistic Child

The residential custodial parent of the autistic child will have a significant burden in dealing with all the idiosyncrasies of the autistic child.  When determining custody of an autistic child the judge should take into consideration all of the following issues:

1.  The acknowledgment and acceptance of the child’s disorder.

2.  Each parents ability to follow through on recommended behavioral interventions for the child.

3.  The parent’s capacity to understand the nature and circumstances of this disease.

4.  The willingness of the parent to place the child’s needs over his or her needs.

5.  Each parent’s ability to handle the psychological stress involved in raising an autistic child.

Joint Custody of the Autistic Child

Sometimes with healthy children, joint custody is the best route to deal with parent’s access to their children.  However, autistic children require special consideration when it comes to joint custody.  Joint custody will not necessarily be in the best interest of the autistic child. Autistic children require predictable and consistent schedules.  They do not function well when their schedules are interrupted.  Autistic children need regimented behavioral therapy.  This can be difficult to maintain when the child is going back and forth between two households.

It is extremely important both parents, the residential custodial parent and the non-residential custodial parent, be educated as to what autism involves and the types of long term therapies autistic children require.

Parenting Schedules and the Autistic Child

In cases involving autistic children parenting schedules should give special consideration to the child’s therapy regime.  Autistic children may be in year round extended school year programs related to special education.  When school regimes are interrupted for autistic children they can regress.

Divorce is a common occurrence in today’s world.  In some states almost half of the marriages end in divorce.  When a married couple has an Autistic child it further complicates the home situation.  The inability of one or both parents to deal with the stress and problems in raising an autistic child can be a cause of divorce.  Parents of children with autism experience higher degrees of stress in their lives.

The Autistic Society of America, in a study, found the following cause for stress among autistic parents:

1.         Parents inability to determine the child’s needs.

2.         Reactions from society to the autistic child and the feelings of isolation.

3.         Concerns regarding future care for the autistic child.

4.         Finances and economic pressures caused by the cost of the therapies for the child.

5.         Feelings of grief.

6.         Lack of personal time.

7.         Stress from reactions by siblings and other family members

Divorce and Autism

There are special issues that affect parents of an autistic child during divorce proceedings. Issues involving child custody, visitation, change in child custody, child support, family court issues, child abuse and child neglect proceedings, special education expenses for the child, and health insurance for the autistic child are issues that need to be dealt with.

Autism in America

There has been an astronomical increase in the past ten years in the number of children born in American who develop autism. Now approximately 1 out of every 90 child born in the United States develops autism.

Autism affects children in different ways.  Autistic children often have difficulty speaking.  Some autistic children only repeat what they hear others say.  Autistic children have difficulty making eye contact.  They can engage in obsessive-compulsive behaviors.  Examples of this type of behavior include lining up objects in a row and repeating a task over and over again for many hours.

Some autistic children do not understand danger. They can place their hand on a stove even if they were burned by doing this previously.  Autism is a serious disorder.  An autistic child’s ability to learn, communicate and socially interact is negatively affected.  Although autism is not curable, early diagnosis and intense behavioral treatment can allow the child to make significant improvements.

Prenuptial agreements are not for everyone.  The only individuals eligible for prenuptial agreements are people getting married.  Seriously though, who needs a prenuptial agreement and why would you really want one?

Prenuptial Agreements deal with issues such as assets accumulated during the marriage, professional licenses and spousal maintenance issues.

Starting On Equal Terms

Many couples who marry have similar financial circumstances.  However, during the course of the marriage, one party may decide to stay home and raise the children which would have a negative impact on his or her career.  This provides a ground in a divorce for requests for alimony (spousal maintenance).

Prenuptial Agreements Cost Less Than Engagement Rings

Engagement rings today cost anywhere between $5000 and $25,000.  A prenuptial agreement will usually cost between $2500 and $7500.  It is a lot cheaper than an engagement ring.  It is said that diamonds last forever.  Diamonds in the engagement ring may last forever but 50% of all marriages fail.  This makes the cost of prenuptial agreements when considered over the long run a lot less expensive.

Don’t Wait For The Last Minute

If you anticipate entering into a prenuptial agreement with your future spouse, you shouldn’t wait to a few weeks before the marriage to retain an attorney to draft the document.  Prenuptial agreements should be negotiated several months before the parties get married.

Prenuptial Agreement Lawyers

The attorneys at the Law Offices of Elliot Schlissel draft prenuptial agreements.  It addition we draft post nuptial agreements and separation agreements.  The firm also litigates all divorce issues.  These issues may involve divorce grounds, family law, child custody, changing visitation, child abuse and child neglect, drafting separation agreements, prenuptial and post nuptial agreements.  We also have litigated cases involving mothers’ rights and fathers’ rights.  Call for a free consultation.

Who needs estate planning?  Probably you do!  Estate planning does not relate to an individual’s net worth.  The purpose of an estate plan is to see to it that your financial goals and the financial goals of your family can be met even after you die.

There are several elements of an estate plan.  A will, a power or attorney, a living will and a health care proxy.  These basic documents comprise an estate plan.

Why You Need A Will

A will is a very basic document in which an individual lays out what he or she wants to happen to his or her assets upon death.  It can also name guardians to the decedent’s minor children.  A major reason for having a will is that if you die without a will you are considered to have died “intestate”.  Individuals who die intestate will expose their heirs and loved ones to additional expenses in dealing with the complications involved with estate administration.

Are Trusts Only For The Rich?

Trusts are documents that allow you to control your assets and its distribution after you die.  Trusts can also be utilized to reduce estate and gift taxes.  Trusts are no longer for the rich.  They’re a valuable estate planning device many middle class families utilize.

Annual Gift Giving

Each individual may give up to $13,000 a year or $26,000 if you are married and giving the gift in conjunction with your spouse.  In addition you can pay an unlimited amount in medical and educational expenses for an individual if these funds are paid directly to the institutions that provided the medical or educational services.

Estate Planning Lawyers

Estate planning is a sophisticated undertaking.  You should utilize experienced well thought of estate planning attorneys to handle these sophisticated transactions.  The law offices of Elliot Schlissel have been drafting estate plans for their clients for over thirty years.  The firm probates wills.  They litigate contested wills.  The firm’s attorneys have extensive experience in bringing guardianship proceedings, drafting revocable living trusts and irrevocable living trusts.  Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Care Attorneys.  He provides all types of elder care counseling to his clients including issues involving nursing home abuse, Medicaid, Medicaid planning techniques, specials needs trusts for special needs children which are also referred to as supplementary needs trusts.  Feel free to call our office for a consultation.

Children who are charged with crimes will often have these crimes adjudicated in the Family Court of New York.  These children are entitled to virtually the same rights guaranteed under the United States Constitution in the Family Courts they would have if they were prosecuted in the Criminal Courts in New York.

Similarities and Differences Between the Family Courts and Criminal Courts in New York

There are similarities and differences between the prosecution of a crime in the Family Court in New York vis a vis the prosecution of the same or similar crime of an adult in the Criminal Courts.  To start with, the prosecutor is called the “presentment agency” instead of “The People of the State of New York”.  There is no District Attorney’s office representing the prosecution in the Family Courts.  In the City of New York the prosecutors is the Corporation Counsels Office and in the suburban counties outside the City of New York the prosecutors are the County Attorney’s Office.  In the Criminal Courts individuals charged with a crime can be released on their own recognizance instead of bail being posted.  In the Family Courts the children are released to their parent’s custody.  There is no bail statute affecting release in the family court.

The trial in a criminal prosecution in the Family Court is referred to as a fact finding hearing.  The finding of a Family Court, instead of being that the individual is guilty, is a finding of “adjudication of juvenile delinquency”.  In the Criminal Court an individual found guilty can be sentenced to jail. In the Family Court the sentence of a child is called a placement in a facility.

Motion Practice in the Family Courts

As in the Criminal Courts, Motions to Suppress evidence and Motions to Dismiss in the interest of justice can be made to the judge.

No Jury Trials in the Family Court

Juveniles in the Family Court do not have a right to a jury trial. Adults in Criminal Court are entitled to trial by jury in both misdemeanor and felony proceedings. In misdemeanor proceedings six person juries are used while in felony proceedings twelve person juries are used.

Plea Bargaining

Plea bargaining is a process in the Criminal Courts where an individual charged with a crime can plead guilty to a lesser crime for the purpose of receiving a no jail commitment or a sentencing commitment from a judge that is much more lenient than if he or she had been found guilty of the original crime.  In the Family Court instead of plea bargaining the juvenile makes an admission to a lesser charge.  Unlike in the Criminal Courts there is no commitment by the court with regard to sentencing.  The reason for the lack of commitment for sentencing in the Family Court relates to the mission of the Family Court.  It takes into the consideration the best interests of the child and the protection of the community when dealing with sentencing issues.

Convictions In The Family Court

If a juvenile is convicted in Family Court after the fact finding hearing there is a second hearing called the dispositional hearing.  During the disposition hearing the attorney for the child can present to the court a plan to deal with the issues raised in the case.  These plans can deal with sentencing alternatives involving placement in schools, community based programs, drug treatment counseling and other types of alternative sentencing programs.  The judge at a dispositional hearing will render a decision as to whether the child requires confinement, treatment or supervision.  The court can also conditionally discharge the child into the custody of his or her parents.

Family Court Legal Representation

Although there are similarities between the prosecution of a juvenile in the Family Court and the Criminal Courts, should you have a child that is charged with a crime pending in the Family Court before retaining counsel you should discuss the attorneys experience in representing minors in the Family Court.  Although there are similarities and differences between criminal prosecutions in the Family Court and in the Criminal Courts an attorney with experience and expertise in dealing with Family Court matters may obtain a better result than an attorney that only deals with prosecutions of individuals in the Criminal Courts in New York.

Family Court Lawyers

The Family Court Lawyers at the Law Office of Elliot Schlissel have been representing minors charged with both misdemeanors and felonies in the Family Courts in the metropolitan New York area for more than thirty years.  Our firm represents juveniles charged with misdemeanors and felonies in the Family Courts of the five boroughs of the City of New York, Westchester County, Nassau and Suffolk Counties.  In addition the firm represents individuals charged with assault and battery, shop lifting, burglary, driving while intoxicated (DUI/DWI), weapons possession, traffic tickets, computer crimes and internet crimes in the criminal courts.  We also help our clients arrange for bail so they can be released from jail.  Call us for a free consultation.

On June 26, 2011, the Marriage Equality Act was passed in New York.  New York became the fifth state to recognize same sex marriages.  The Marriage Equality Act states “a marriage that is otherwise valid shall be valid whether the parties of the marriage are of the same or different sex.”  The intent of the statute is to allow marriage to become a fundamental human right in same sex relationships.

Defense of Marriage Act (DOMA)

The Defense of Marriage Act, which is a federal statute passed by Congress, does not recognize same sex marriages.  This statute bars the Federal Government from recognizing same sex marriage as being constitutional.  The law states “no state, territory, or possession of the United States or Indian tribe shall be required to give effect to any public act, record or judicial proceeding or any other state, territory, possession or tribe respecting relationships between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe or right or claim arising from such other relationship.” It should be further noted pursuant to Section Seven under Title One of the United States Code marriage is defined as a legal union between a man and a woman and the term spouse only refers to a person of the opposite sex who is a husband or a wife.

Rights Under New York’s Marriage Equality Act

The Marriage Equality Act in New York conveys certain rights to individuals in same sex marriages.  The following are a list of some of these rights:

1.         Family and Medical Leave

2.         Veterans and military benefits

3.         Workman’s Compensation benefits

4.         Pension and survivor benefits

5.         Immigration rights

6.         Health insurance

7.         Automobile Insurance

8.         Burial rights

9.         Testate and Intestate Spousal rights under New York State law (Inheritance Rights)

10.       Creates tenancy by the entirety regarding real property ownership (marital rights to real estate)

11.       Allows a New York State Tax exemption

12.       Creates certain spousal evidentiary privileges

Conclusion

The New York Marriage Equality Act goes a long way in recognizing same sex marriage and providing the parties to these marriages with many benefits.  However, until the Federal Government revokes the Defense of Marriage Act there are numerous federal benefits that won’t attach to individuals in same sex marriages.

New York and Long Island Divorce and Family Court Lawyers

The Law Offices of Elliot Schlissel have been litigating a myriad of issues involving divorce and family court situations for more than thirty years.  The attorneys at this firm have more than 100 years of combined legal experience.  Some of the matters handled by the law firm involved divorces, divorce grounds, orders of protection, high net worth divorces, grandparents’ rights, equitable distribution of assets, annulments, no fault divorce, child abuse defense, issues involving reduction of child support, custody issues, changing child custody, orders of protection, father right issues and mothers’ rights issues.  Feel free to contact the firm for a consultation.