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.

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.

Your divorce is over. Does this mean all parenting issues have been resolved?  Hopefully, this is true. But life is not static. Children grow older and develop new, unanticipated issues. Parents’ relationships change. Financial situations for both the custodial and non-custodial parent are impacted by employment interruptions, physical problems and sometimes relocation of one of the parents. In addition, even after the parents have worked out everything in the divorce, new decisions will need to be made regarding the children as time goes on.

Parenting Plan

One of the best ways to deal with child custody and visitation issues is to have a specific, detailed parenting plan. Parenting plans provide stability as relationships change and seek to minimize conflicts between the parents.

Co-parenting

Co-parenting arrangements, after the divorce is finalized, requires both parents to put the children’s best interest before their own. The parents must communicate with each other concerning all significant issues involving the children. Both parents should strive to maintain a positive attitude and only say affirmative things about the other parent. Neither parent should bad-mouth the other! The following is a list of factors that should be taken into consideration and be part of a co-parenting plan:

1. Both parents should make decisions based on what is in the children’s best interest.
2. Parents should speak to each other either on the phone, by text message or e-mail concerning all significant issues involving the children.
3. The parents should strive to be flexible and reasonable with the other parent with regard to issues that impact on their children.
4. Each parent should take into consideration that the other parent’s parenting style may be different than his or hers.
5. Each parent should avoid questioning their child each time they come back from a visit with the other parent.
6. Each parent should strive to keep the other parent informed regarding educational, social and athletic activities that the children are involved in.
7. Conflict avoidance should be the mainstay of the co-parenting relationship.

Peace, Love and Consideration

Peace, love and consideration are the key components of a co-parenting plan.  Parents should seek to avoid future arguments, disagreements and hostilities between each other. Both parents should make the love for their children as the central basis of the co-parenting plan.  The best interest of the children should always be in both parents’ minds. Co-parenting plans should not be popularity contests between the parents. Children need parents to give them guidance. A parent is not a child’s friend. A parent is the person that has to see to it a child knows the difference between right and wrong. Popularity contests between parents have a negative impact on your child.

About the Author

Elliot S. Schlissel, Esq. is a well-respected matrimonial and family law attorney who has successfully represented parents concerning issues involving divorce, custody, visitation and other related matters. His office offers free initial consultations.

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.

In October 2010, the State Legislature in New York enacted guidelines for calculating temporary spousal maintenance. The purpose of this new statute is to provide consistency in spousal maintenance awards by judges. The temporary maintenance law provides a formula by which the parties to a matrimonial lawsuit can determine what, if any, spousal maintenance is required to be paid on a temporary basis.

Temporary Maintenance Law Does Not Work

The temporary maintenance statute has not accomplished its goal. It has created more problems in divorce proceedings than it has resolved. The statutory formula replaced the prior system of determining temporary spousal maintenance which was based on the Court exercising its discretion after assessing the financial circumstances and the needs of the parties.

The intent of temporary spousal maintenance is to allow the non-moneyed spouse to maintain his or her standard of living that existed prior to the initiation of the divorce lawsuit. The legislature took action to draft a temporary maintenance statute because of the feeling that there was a lack of consistency and predictability by allowing Judges to determine each case on a case by case basis.

Bankrupting The Moneyed Spouse

In to in many cases the writer of this article has been involved with, the application of the temporary maintenance statute has financially ruined the moneyed spouse. This statute unfortunately over emphasizes the wages of the moneyed spouse. It does not take into consideration the financial needs of the parties and their actual living expenses. The formula does not take into consideration the payments for household expenses such as mortgage payments, electric payments, fuel oil, payments for internet service, telephone charges, maintenance of the property, child support and attorney’s fees during the course of litigation. The approach utilized by this statute does not accurately deal with the specific financial obligations and needs of the parties.

Rigid Formula Must Go!

The new maintenance statue needs to be revised. It is a rigid formula that denies the Court from having the necessary discretion to deal with the unique financial circumstances litigants are exposed to. In some situations spouses are receiving interim spousal maintenance awards in cases and at the conclusion, they receive no spousal maintenance. How can this be fair?

When a custodial parent seeks to relocate, he or she may run into more complications and difficulties than he or she anticipates.  An order of custody and/or divorce judgment may contain clauses specifically preventing a custodial parent from relocating.  Whether the custody order or the divorce judgment contains a clause of this nature, the custodial parent, who seeks to relocate,  must bring a proceeding in the State of New York, either in the Supreme Court or in the Family Court.  The proceeding will be for the purpose of obtaining a court order authorizing the relocation of the custodial parent.

Good Reasons For Relocating

The application brought by the custodial parent must contain a compelling reason for relocating with the child or children.  Some of the reasons that have been alleged in petitions of this nature deal with employment in another locality, it is closer to family members for a support system and opportunities for the children to enhance their education.

The Impact On The Non-Custodial Parent

In most situations, the relocation of the children will have a negative impact on the non-custodial parent’s visitation rights.  To compensate, the non-custodial parent is often offered additional parenting time. Additional parenting time can involve summer vacations, school vacations, school recesses and other periods of time when school isn’t in session.  In some situations, the parent who seeks to relocate may have the obligation of paying the cost of transportation of the children back to visit with the non-custodial parent.

Courts in the State of New York are reluctant to grant relocation applications due to the negative impact it can have on the other parent’s visitation rights.  To be successful in New York it is extremely important to show the relocation will be in the children’s best interest.  To accomplish this goal it will be necessary to show how the children’s lives will be enhanced either economically or in another manner.

Present A Plan to the Court

If you seek to relocate it is important to present, in your court petition, a plan for visitation with the non-custodial parent.  This plan must show the children will be able to maintain their relationship with the non-custodial parent.  Since the party bringing the application will have the burden of proof, it is essential in the proceeding to be represented by an experienced family law attorney who has previously dealt with relocation cases before the local courts in your jurisdiction.

Carl M. Perry had an order of protection against him.  This order of protection from the Family Court in Monroe County indicated he was to have no contact with his wife.  It further ordered, he was to stay away from his wife.

During the period of the order of protection, Carl gained access to his wife’s Facebook account.  He sent out letters to friends and family on his wife’s friends and family list.  In these letters he complained that his wife was using the parties children against him.  He further indicated that she was preventing him from seeing or communicating with his children.  Mr. Perry was charged with criminal contempt for violating the order of protection that barred him from having contact with his wife.

Justice DiSalvo, sitting in the Webster Town court, dismissed the criminal charges against him.  The Justice stated in his decision “changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date (April 7^th) of this decision there were no reported cases of people charged with violating an order of protection for accessing Facebook.  One must look for cases where defendants are charged for indirectly contact a protected person by making statements to others.”  The court further held, that there was nothing in the order of protection that prevented him from accessing the Facebook account.

The court held that by communicating with individuals through Facebook he was not either directly or indirectly trying to contact Ms. Perry.  The court further stated, the order of protection did not prevent the defendant from having contact with individuals that happen to be listed on Ms. Perry’s Facebook account.  It also did not prevent him from having contact with family, friends or acquaintances.

Conclusion

This is a win for Facebook.  If you have an order of protection against you can still communicate with third parties through Facebook provided the order of protection doesn’t specifically mention no contact through Facebook accounts.

California is considering passing a multiple parenting law. This law would allow children to legally have more than two parents. This statute was proposed by State Senator Mark Leno of San Francisco. It has already passed the California State Senate and is being considered in the California State Assembly.

Mr. Leno claims that the definition of the American family is evolving. The statute takes into consideration surrogacy arrangements and reproductive techniques that involve multiple individuals and same sex marriages. Mr. Leno has stated “the bill brings California into the 21st century recognizing there are more than Ozzie and Harriett families today.”

Mr. Leno, in an interview with ABC News.com, discussed a situation when an appeals court in 2009 placed a girl in foster care when her legally married parents, who were two lesbians, could not care for her.  One of the child’s mothers had been jailed.  The other, non biological mother was in a hospital facility.  The girl’s biological father fought to be recognized as a parent. She had a relationship with the father, but the court could not recognize him as a parent because she already had two recognized parents.  Mr. Leno points out that Pennsylvania, Delaware, Maine and the District of Columbia already have statutes recognizing more than two parents

Statute Deals With More Than Same Sex Relationships

Mr. Leno argues with regard to the new law, that it is more inclusive than just involving same sex relationships.  He uses as an example in which a man raises a non-biological child with a woman when the child also has a relationship with his biological father.  Another example he gives is when a lesbian couple wants to include a male friend who provided sperm for conception as a legal parent for the child.  Leno strongly argues it is in the child’s best interest to designate multiple parents to provide financial support, health insurance and other state benefits.

Legal experts are concerned about the issues that would be created by this new California law.  Issues involving tax deductions, child support, health insurance, inheritance rights, custody issues, visitation issues, child support and wrongful death situations could be significantly impacted by the situation where a child has three parents.

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.

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.