The Elliot Schlissel New York Law Blog

New York State Supreme Court Justice, John C. Bivona, recently ruled the estranged spouse of Marley Bishop, the daughter of United States Congressman, Timothy Bishop, did not have any parental rights to visitation because the parties’ son was born before New York passed the Same Sex Marriage Act in 2011.

The Judge ruled Mercedes Counihan did not have legal standing to seek custody or visitation of the parties’ son, who was two years of age.  Ms. Counihan’s partner, Marley Bishop, had carried the baby after she had been artificially inseminated.  The Judge’s ruling was that the non-biological parent did not have standing to raise the issue of access to the child or assert parenting rights.

Same Sex Marriage In Connecticut in 2009

Bishop and Counihan were married in the State of Connecticut in the year 2009.  Both women executed documents related to the in-vitro process.  Counihan was present at the birth of the child.  Counihan claimed the child referred to her a “Mommy.” Judge Bivona found “neither consent by the birth mother to co-parent the child with the plaintiff nor approval to permit to adoption of the child” existed in the case.

The attorney for Counihan claimed the ruling was “outrageous.”  She stated the Courts decision did not take into consideration the fact Counihan appears on the little boy’s birth certificate.

In a statement made after the court’s decision, Counihan said “this is about parents and a little boy and that boy is my son, too.  He should not be taken from me and I should not be erased from his life because a marriage fell apart.”  She stated her attorney was appealing the court’s decision.

About The Author

Elliot S. Schlissel, Esq. and his staff of attorneys litigate cases involving mothers’ parental rights and fathers’ parental rights.

Every parent hopes and prays their children will be born without mental or physical problems. Children with special needs take a toll on both parents. This toll sometimes is the cause of divorces. Studies have shown children with autism and the burdens placed on the parents by these children can be the cause of the parents’ divorce.

Divorce Agreements And Special Needs Children

Parties entering into a settlement agreement or a separation agreement in a divorce have to deal with all of the normal issues such as custody, visitation, child support, spousal maintenance and division of property. However, when there is a special needs child involved, additional consideration must be given to the additional costs and burdens of raising a special needs child.

Parenting Plans And Special Needs Children

When developing a parenting plan for a special needs child, the parents must tailor the plan to deal with unique circumstances the child faces. Special needs children require specialized care-taking skills. In some situations, special parenting programs will be necessary for a parent who has not been primarily involved in the dealing with the special needs child everyday problems.

Child Support

Child support payments are usually determined by the standards maintained in the Child Support Standards Act. However the normal child support payments may not be sufficient to deal with the unique problems, expenses, additional therapy and additional special programs special needs children require. Special needs children may be so disabled they may never be self-supporting or be capable of living on their own. The increased burden the residential custodial parent has of maintaining the special needs child may have a negative impact on his or her ability to earn a living and become self-supporting.

Conclusion

In dealing with the drafting of settlement agreements and separation agreements, divorce attorneys must take into consideration the additional problems and parenting needs of a special needs child. Agreements must be specifically tailored to deal with the unique and special circumstances of these children.

In a recent decision, Justice John Leventhal of the Second Department of the Appellate Division (Appeals Judge) wrote a unanimous decision in the Matter of Briannal, 2012-05594.  This decision reversed a lower court order. In this case, Justice Leventhal stated “the Family Court has the unique resources to effectuate and determine the best interests of children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendments of its terms by a subsequent Family Court order pertaining to custody and visitation.”

This case involved an individual, Mary A., who had plead guilty in Queens Criminal Court to endangering the welfare of a child. The guilty plea was in response to her use of physical force to beat her six year old son. As part of her conviction, Mary had to take a parenting skills course. She also had to attend an anger management course. The Criminal Court issued an order of protection which prevented her from any contact with her son, Elijah, for five years.

Administration for Children’s Services

The initial complaint was filed by the Administration for Children’s Services (ACS). Thereafter, the agency brought the neglect proceeding against Mary in the Queens County Family Court. However, the agency also submitted a report relating to Mary attending court ordered programs. The reports stated Mary was capable of caring for her son, Elijah.

The order of protection from the Criminal Court, which prevented Mary from having contact with her son, Elijah, stated in a clause “subject to family court.”  Family Court Judge, Marybeth Richroath, held the wording of the Criminal Court order of protection was “shorthand” for “subject to subsequent Family Court orders of protection and visitation.” However, the Judge also stated she did not have jurisdiction to overrule the Criminal Court and return custody to the mother. Although it was in the child’s best interest to return custody to the mother, Judge Richroath felt the order of protection precluded that possibility. Instead, she gave custody of the child to the father. She also entered a ruling which prevented Elijah from having unsupervised visits or overnight stays with the mother. The mother appealed.

Appeals Court Explains Jurisdiction Regarding Modifying The Order Of Protection

In overruling the Family Court, Judge Leventhal (the Appellate division judge), stated the Family Court is uniquely situated to make rulings in children’s best interests in connection with orders of protection. The court noted, in the Family Court, attorneys for the children are appointed by the court to protect the children’s interests. The Judge stated in his decision, “in contrast, Elijah was unrepresented in the criminal proceeding.” The Judge went on to state “for these reasons it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in child protective proceedings to select the dispositional alternative which is the most consistent with the best interests of the children before it .”

The Surrogate Judge of Kings County, Diana Johnson,  recently held a hearing related to the probate of a decedent’s estate. She was presented with the issue of whether the decedent and the objectant, Avrumson, were legally married. The marriage took place before Rabbi Dembitzer at the Rabbi’s residence. However, there was no marriage license.  The court held the lack of a license did not render a marriage, which was performed by an individual authorized to solemnize marriages, void.

A marriage certificate was entered into evidence. No evidence was presented that the signatures on the marriage certificate were forged. The court found there is a presumption of the validity of the marriage.

Rabbi Dembitzer testified he recognized the handwriting on the Ketubah, a Jewish marriage document. He also testified he would not perform a wedding if there was no Ketubah. He testified a Ketubah is required pursuant to Jewish law and would not participate in a marriage ceremony without one. The court found the decedent and the objectant were legally married and the objectant had the status of being the surviving spouse for inheritance purposes.

Spouses, in unhappy marriages, often wait until the end of the year, after the holiday season, to decide to move forward with their divorces. This is especially true when the parties don’t get along and the frustration between the spouses boils over related to get-togethers that go poorly at Christmas time. Spouses that are not happy in relationships sometimes wait until after the first of the year to avoid impacting on the children’s lives during the holiday season.

Divorce Filings Increased after the First of the Year

It is not uncommon for divorce lawyers to receive an unusually high rate of inquiries concerning divorces at or around the end of the year. So what do you do if your spouse says to you in early 2013, “I’m filing for divorce?” To start with, do not create a violent incident.  Discuss the situation with your spouse calmly and see if marriage counseling is a possible solution to your problem.

If it turns out a divorce is going to be moving forward, the first thing you need to do is to obtain copies of all financial records, tax returns, 401 K statements, pension statements, bank account statements, checking account statements, credit card statements, copies of paychecks and all other financial records are important items when considering moving forward with a divorce. A marriage is a social and economic partnership. When the social part is over, the issues to be decided by the court or negotiated into a settlement agreement involves child custody, visitation, equitable distribution of marital assets, child support and spousal maintenance (alimony).

Hiring a Divorce Lawyer

When a divorce is inevitable, you should immediately consider hiring a divorce attorney to protect your interests. Make sure you retain an attorney who can calmly explain to you how the divorce process works and who you are comfortable dealing with.

Today Americans communicate billions of times a day through e-mail and text messaging. Today, the most private pieces of information are communicated by using cell phones.  Americans often communicate their private information through e-mail and text message. How can we keep these matters private? Do Americans have a right to privacy over their emails and text messages?

David H. Patraeus, the Director Of The Central Intelligence Agency, Couldn’t Keep His Emails Secret

Mr. Patraeus used emails to communicate with his mistress. Unfortunately for Mr. Patraeus, he was caught.   Most Americans underestimate how easy it is for third parties to obtain access of their e-mails and text messages. Digital communications can be intercepted. Individuals can hack into your e-mails and text messages and spy on the most important issues involving your life. Today, hacking into the emails and text messages is not that difficult! It happens to Americans all the time. Government agencies have searched and subpoena powers with regard to information maintained on your computer, on your emails, stored on your cloud or maintained in cyberspace. Lawyers in civil litigation can get to virtually all this information through the discovery legal process.

Skeletons In Your Closet

Is there a way to make your e-mails so private that no one will ever find out what is in them?  The Fourth Amendment to the United States Constitution deals with search and seizure issues. Police officers and State and Federal investigatory agencies (such as the FBI) need a court order to search your home or where you live. However, the rules concerning searches of emails are not as strong. Under the 1986 Electronic Communications Privacy Act (a Federal statute), Federal agencies do not need a warrant to obtain emails six months old or older. Federal agencies only need to obtain search warrants for emails that are “unopened”.

In 2012, Google reported law enforcement agencies requested data on 16,281 accounts between January and June. Google complied with 90% of these requests!

Encryption Of E-mail Messages

There are encrypting services. GPG is a company that can help you encrypt your e-mails. WICKR, a mobile app, provides a similar service with regard to the encryption of emails. This app can be utilized on smart phones. However, metadata, even for deleted files, remains on the phone’s hard drive. Forensics specialist and hackers can still obtain this information.

Privacy In Emails

The best way to maintain the privacy of your most private thoughts is to never put them in writing.

About The Author

Elliot S. Schlissel is an attorney with more than 35 years of experience who handles criminal defense matters, divorces and father’s rights issues.

It is said that marriages are made in heaven. If this is true, are divorces made in hell? I don’t believe so. Divorce is the result of a marriage not working out. The dissolution of a marriage takes place in the courthouse. Children born from the marriage are victims in a divorce. Children want their parents’ marriage to work. They want their parents to get along and stay together. They don’t understand the issues that cause their parents to divorce.

The standard for determining custody of the parties’ children is the “children’s best interest.” Which parent has superior parenting skills? Which parent enriches the children’s lives more? Which parent has been the nurturing parent or primarily involved in taking care of the children’s basic needs during the course of their minority? These issues are considered in determining what the children’s best interests are. Courts always render their decision concerning child custody and visitation related to what they believe is the children’s best interest.

Joint Custody

What is joint custody? It is the sharing of parenting-time each parent has with the children; sharing responsibility in the children’s lives; having each parent contribute to the decision making process concerning the best interests of the children. Joint custody does not mean that the children live in two different places during the course of their minority. Generally speaking, there is one residential custodial parent and a non-residential custodial parent. Instead of one parent getting visitation with the children and the other parents having custody, each parent has parenting time with the children.

Parents Not Friends

Children need their parents. A parent’s responsibility is to educate their children, support their children and love their children. Sometimes parents have to take a tough line with their children to see to it they become responsible, law abiding, appropriate human beings. Tough love can be difficult but sometimes it is necessary in child rearing. Parents must distinguish themselves from the children’s friends.

Residential Custody and Child Support

In joint custody situations, as indicated earlier, one parent acts as the residential custodial parent. It is important to establish a specific residence for a child so the child will be allowed to register in his or her local school district. However, even if the parents have virtually equal parenting time with the child or children, the non-residential custodial parent has an obligation to pay child support to the residential custodial parent. There are times that this is unfair! However, the law to New York requires the non-residential custodial parent to pay child support to the residential custodial parent even if the non-residential custodial parent has the same or similar expenses for the child as the residential custodial parent.

Conclusion

The best interest of the child is a fairly general term. Both mothers and fathers have equal rights to custody in New York. If the parents both want custody of the child, joint custody of the child may be a solution in many cases.

The United States Supreme Court entertained a case on December 5, 2012, involving an international child custody battle. The case, Chafin vs. Chafin, involved a U.S. Army soldier and a Scottish woman. The Chafins were originally married in Scotland. Thereafter, they moved to Germany where Mr. Chafin was deployed by the United States military.

In 2007, the couple had a daughter. She was born in Germany and had dual citizenship. She was both a citizen of the United States and the United Kingdom. Thereafter, Mr. Chafin was redeployed by the United States military to Afghanistan. He stayed there for 15 months. During his deployment, the Chafins agreed that the mother and daughter would return to Scotland. Eventually, Mr. Chafin moved to Alabama and his wife and daughter followed him there in February 2010.

The Chafins’ Divorce

Mr. Chafin filed for divorce and for an emergency custody order in Alabama. As part of the emergency Alabama order, the daughter’s passports were moved to an unknown location.  Due to the fact that Mrs. Chafin could not leave the country with her daughter and return to Scotland, she overstayed her visa. This resulted in her being deported in February 2011.

Mrs. Chafin Seeks The Return Of Her Child Under The Hague Convention

Mrs. Chafin filed a petition to have her child returned pursuant to the international obligations countries have under the Hague Convention. A Federal District Court Judge ruled in her favor. He found that Mr. Chafin had wrongfully kept his daughter and had no right to hide her passport. He also found that Scotland was her habitual residence and allowed Mrs. Chafin to return to Scotland with her child.

United States Supreme Court

This case eventually found its way to the United States Supreme Court. The issue before the Supreme Court is whether under the Hague Convention they can order the return of the child to the United States and whether the United States was the habitual residence of the child.  This case is still pending!

About The Author

Elliot S. Schlissel, Esq. and his associates have been involved in numerous cases dealing with international custody and visitation issues concerning countries that are signatures to The Hague Convention and countries that are not covered by this convention.

Men and women marry, generally speaking, because they are in love. At the time of marriage couples rarely think about getting divorced. Divorce isn’t romantic. Marriage certificates are not supposed to have expiration dates built into them. However today, divorce is much more common than it was in the past. Do you need a prenuptial agreement?

Prenuptial Agreements

Prenuptial agreements are not for everyone. These agreements are prepared prior to marriage. One party hires an attorney to draft the prenuptial agreement and the other party needs an attorney to review it to see that it is fair. Prenuptial agreements provide structure for issues concerning division of assets, spousal maintenance (alimony), divorce, death of one of the parties, separation of the parties and the disability of one of the parties. The law to New York requires a prenuptial agreement to be in writing and executed by each of the parties. The agreement also must be acknowledged in the same manner as a deed (this requires the notarization of the parties statements).

Second Marriages

Individuals entering into a second marriage are more likely to request that a prenuptial agreement be entered into than those being married for the first time. This is especially true when there are children from the prior relationship. The prenuptial agreement allows each of the parties to protect assets acquired prior to the date of the marriage.

Prenuptial Agreements are not Romantic

The discussions of entering into a prenuptial agreement can cause strife among the prospective nuptials. Many individuals going into a marriage are of the belief that if they ask their prospective spouse to sign a prenuptial agreement, it will convey a lack of love and belief that the marriage will not be long lasting.

Conclusion

Couples who enter into a marriage where either party has significant assets or children from their prior marriage, they should consider entering into a prenuptial agreement. Although prenuptial agreements are not romantic, this should not stop the parties from making logical and intelligent decisions concerning their economic rights. Although, when people get married, they don’t think about divorce.  A divorce rate of almost 50% is a fact of life.

Justice Matthew Cooper, sitting in Supreme Court, New York County, granted an application in the matter of Castaneda v. Castaneda,  for a change in venue in a divorce proceeding from Manhattan to Suffolk County. The wife in this case brought an application claiming that the venueing of the case in Manhattan was improper. She resided in Suffolk County. Her husband resided in Queens County.

Justice Cooper, in his decision, wrote “that it appears to become an accepted practice for ‘so called divorce mills’ to file divorce actions in New York County even when neither of the spouses actually live in the county.” He presumed that they took this action because New York County processed divorces faster than other counties.

Wife In Suffolk County And Husband In Queens County

Justice Cooper in his decision stated that since the wife lived in Suffolk County and the husband lived in Queens County, New York County could not be the proper venue for the divorce proceeding. He granted the wife’s application to change venue. The Court stated the legislature should amend the New York Civil Practice Laws and Rules to require parties in divorce proceedings to file the proceedings in the county in which they reside in unless there were special circumstances shown. In the alternative, he suggested trial Judges be given the discretion on their own to transfer cases to the proper county the case should be heard in.

Divorce mills refer to attorneys that do high volume allegedly simple divorces often assuming the issues involving custody, child support, spousal maintenance and other significant issues have been resolved and therefore the parties just need a change in their status. This is not always the case. In many situations the alleged uncontested divorces often fall apart and contested litigation proceedings are necessary.