The Elliot Schlissel New York Law Blog

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.

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.

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.

Judge Daniel Palmieri, sitting in a Supreme Court part handling matrimonial matters in Nassau County, New York, recently vacated the decision of a Beth Din determination and award.  Beth Din is a Jewish Religious Court.

The parties in this case had entered into a written agreement to arbitrate financial issues related to the marriage before the Beth Din religious court. The agreement authorized the Beth Din arbitrators power to hear and determine all issues of a financial nature. The determination of these financial issues are enforceable in the Nassau County Supreme Court.

Limitations Of An Arbitration Agreement

The arbitration agreement did not empower the Beth Din court to render final and enforceable decisions concerning issues involving child custody and visitation. This is due to public policy in New York. In New York, only state courts can render decisions on issues of child custody and visitation.

In the case, before Justice Palmieri, the husband moved to set aside a decision and award by the Beth Din arbitration panel. He also asked the Court to grant a downward modification of child support. The wife moved to confirm all aspects of the decision of the Beth Din panel.

Justice Palmieri vacated the arbitration award to the extent that it dealt with decisions of custody and visitation as being against a public policy in the State of New York. He confirmed the portion of the award dealing with financial issues.

Private Arbitration Of Legal Matters

More and more litigant today are opting for alternate dispute resolution of legal matters.  This usually involves hiring a retired judge to conduct an arbitration. These private tribunals can resolve litigated issues much faster than the overworked courts in New York.

Justice Dollinger, sitting in the Supreme Court in Monroe County, recently suspended a man’s spousal maintenance (alimony) because he found it would be “an extreme hardship” for him to continue to make these payments. Justice Dollinger stated in his opinion in the matter of Platt v. Platt, 2012 N.Y. Slip Op. 51583(U), “[w]e debate ‘extreme politics.’  Even the New York songster, Billy Joel, wondered – ‘darling I don’t know why I go to extremes.’ ” Judge Dollinger, in his opinion, stated the legislature had not established a specific standard for “extreme hardship.”  The Judge wrote “what constitutes an extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party.”

In the matter of Platt v. Platt, the judge found the husband was unemployed.  He lived below the poverty level. In this case the wife also lived at the poverty level. Both the husband and wife were enduring extreme hardship.  The Judge’s opinion stated “this Court cannot stretch the family resources beyond the dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line.”

Separation Agreement

Christine Platt and William Platt had entered into a separation agreement in 2011. Under the terms of the agreement Mr. Platt was to pay spousal maintenance of $700 per month. In February of 2015 this increased to $1000 per month when their daughter graduated college. Unfortunately Mr. Platt lost his job. At that point the Judge reduced his monthly spousal payments to $400 per month. Eventually, Mr. Platt’s unemployment benefits expired. At that time Mr. Platt moved to have his spousal maintenance obligations suspended due to “extreme hardship” pursuant to New York State Domestic Relations Law section 236. His wife Christine Platt opposed the motion.

Justice Dolinger, in his decision, suspended the spousal maintenance payments. His decision stated the suspension was temporary. He wrote that the maintenance would resume “in an amount that the Court deems proper upon the husband obtaining employment or receiving other benefits from another source including gifts from his parents.”

About The Author

Elliot S Schlissel, Esq. is an attorney practicing matrimonial and family law in the metropolitan New York area for more than 34 years.

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.

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.