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Divorce and the Internal Revenue Service

Divorce and the Internal Revenue ServiceMany issues can arise after parties are divorced with regard to the filing of their income taxes. In the event you are divorced as of the end of the year you must file your taxes as either being head of household or as being single. If you had entered into a separation agreement you also may file as single or head of household.

It should be noted that people who file head of household or married joint filers usually have lower income taxes than individuals who file married living separately or as single individuals.

Child Custody and Who Receives the Tax Exemption for the Children

Usually, the residential custodial parent is entitled pursuant to the Internal Revenue Code the tax exemption for the parties’ dependent children. Individuals who enter into a settlement agreement on divorces are entitled to divide the exemptions between them in any manner they wish. When attorneys work out the terms of settlement agreements they often give the parent who has more income the tax benefits of the dependent exemption for the children.

Medical Expenses

Even the parent who are not the primarily residential custodial parent for the children still has the right in the Internal Revenue Code to deduct medical expenses related to their children.

Child Support Payments

Child support payments are not tax deductible by the individual making the payments. In addition, child support payments are not income to the individual who receiving the child support payments.

Tax Refunds

Parties who are in the midst of a divorce litigation should work out a written agreement as to who will receive the tax refund and/or on what percentage will each of the spouses receive of the tax refunds.

schlissel-headshotElliot S. Schlissel is a divorce lawyer representing clients throughout the Metropolitan New York area in both matrimonial and family law matter. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

International Child Custody Issues: The Hague Convention

International Child Custody Issues: The Hague ConventionIn cases where a child is removed from one country where he or she resided in and brought to another country, what can a parent do? Many countries are signatories to the Hague Convention on the Civil Aspects of Child Abduction (hereinafter referred to as the “Hague Convention”). The Hague Convention is a multilateral treaty. It has been ratified by 98 countries. It provides a protocol for the return of a child unilaterally removed by a parent from one member country to another.

Article 3 of the Convention requires signatory countries to return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left behind parent. The law of the state or country from which the child was removed determines custody rights; this adds some fluidity as in some countries an unmarried father may have rights upon the birth of a child, while other countries require a declaratory order to bestow custody rights.

Country of Habitual Residence

Custody rights are usually determines by the law of the country from which a child is removed. This can be complicated by the fact that fathers who have children out of marriage may be faced with the issue that some countries do not recognize custodial parental rights to unmarried fathers.

The Hague Convention is considered a treaty the United States is a party to which can be enforced by bringing a proceeding in a United States Court. There is an expedited procedure to do this.

schlissel-headshotElliot S. Schlissel, Esq. represents parents in child custody cases. He’s been representing parents with regard to domestic and international custody cases for more than 35 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Hague Convention of International Child Abduction Petition Dismissed

An action was brought by Mohacsi in the United States District Court, before Judge William Kutz, who sits in a Federal Court located in the Eastern District of New York.  The petitioner claimed under the Hague Convention on the Civil Aspects of International Child Abduction the court should return his four year old son named Nir to Hungary.  He argued  the mother, Ropa, had wrongfully removed and kept their son Nir in the United States.  He claimed this was a violation of his parental rights under Hague Convention.

 

The Judge’s Decision

Judge William Kutz denied Mohacsi’s application.  He found the wrongful removal claim brought by Mohacsi could not be granted because at the time of the removal of the child neither he nor the Hungarian Court adjudicating the paternity claim on this matter had custodial rights to Nir.  Mohacsi’s wrongful retention claim was invalid due to the fact  Ropa was the sole custodial parent of Nir at the time of the removal.  She had the exclusive right to determine where Nir’s habitual residence would be.  In this case it was in the United States.

 

Hungary Was Not The Child’s Habitual Residence

The relationship between Mohacsi and Ropa fell apart even before Nir was born.  Evidence was presented they never shared an intent to raise Nir in Hungary.  It was therefore never established that Hungary was Nir’s habitual residence.  Mohacsi was also unable to show there was no risk of harm to Nir if he was ordered to have him returned to Hungary.  Nir now resides in the United States.

 

Elliot S. Schlissel, Esq. is an attorney with more than 40 years of experience.  He has represented clients involving international custody cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Judge Finds Child’s Best Interests Are Served By Mother Being Allowed To Relocate

Mother Being Allowed To RelocateIn a case before Judge Aija Tingling ,who sits in the Family Court of New York County, a mother brought a petition seeking to relocate with her child. The father opposed the mother’s application. The mother claimed she was hoping to relocate to Miami, Florida. She claimed her family resided there. The father convinced her initially to stay and go to New Jersey. The mother in this case claimed the relocation would provide the child with better housing, in a safer neighborhood and better educational opportunities. She claimed for these reasons it was in the child’s best interest to allow her to relocate.

No Modification of Prior Custody Order

The father’s attorney claimed a change in circumstance would be required for the modification of the present custody order. Judge Tingling found the change in circumstances was required only for a modification of a custody order. Since the court took note the mother was not seeking to modify a prior custody order, a change in circumstance would not be necessary to obtain the court’s permission to allow her to relocate.

The Court’s Decision

Judge Tingling found the mother testified in a credible manner. The testimony showed that the relocation would enhance both her life and the child’s. Judge Tingling found the mother’s testimony established the child would benefit physically, financially and educationally from the relocation and the father would not be denied meaningful access to the child. The father argued the relocation would interfere with his parental access. Judge Tingling disagreed with the father’s position. She found that the mother was able to show the relocation was in the child’s best interest. It also would not interfere with the father’s parenting time. She therefore granted the mother the application to relocate.

schlissel-headshot Elliot S. Schlissel, Esq. is an attorney who litigates relocation actions and objections to relocation proceedings throughout the Metropolitan New York. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

The International Child Abduction Remedies Act Under the Hague Convention

Airplane landing in the nightProceedings under the International Child Abduction Remedies Act Hague Convention (hereinafter referred to as: “ICARA”) and ICARA are not the same as child custody cases.  Applications under the Hague Convention and the ICARA are to force the return of a child to his or her “country of habitual residence”.  The purpose is to allow the courts of that country to determine questions relating to the custody of the child.  The Hague Convention specifically provides under Article 3 that to prevail on a child abduction claim a petitioner must show:

  1. The child was habitually a resident in one nation and had been removed or retained in a different country;
  2. The removal or retention was in breach of the petitioner’s custody rights under the law of the country of habitual residence; and
  3. The petitioner was exercising those rights at the time of the removal or retention.

The petitioner must establish these requirements by a preponderance of the evidence.  If a petitioner can show the wrongful removal, the return of the child is required.  However, there are defenses to the return of the child.  Those defenses are:

  1. The proceeding was commenced in the responding state more than one year after the wrongful removal or retention; and “the child is now settled in his or her new environment”;
  2. The party now seeking return of the child was not actually exercising his rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention;
  3. The return of the child would place him or her in an “intolerable situation”; or the Attorney Elliot Schlisselchild objects to being returned and has reached an age of maturity that is appropriate to take account of his views.
  4. The human rights and fundamental freedom would be abridged if the return was permitted.

International child removal proceedings have become more common as more members of the public have obtained the financial ability to fly to foreign countries.  These cases are handled in the United States District Courts.  They are not handled in states courts.  The statute as you can see is complicated and there are significant issues that must be proven and/or defenses which must be overcome to be successful in these cases.

Elliot S. Schlissel, Esq. has been representing parents in both domestic and international child custody cases for more than 30 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Divorce Settlement Agreements

Settlement AgreementsSettlement agreements in divorce cases tend to be long and detailed. These agreements cover issues involving child custody, child support, spousal maintenance, the division of property, how much time each parent spends with the children, who pays for college and various other issues. It is important that the language in the agreement is clear and not subject to multiple interpretations.

The agreement should lay out the responsibilities of each of the parents in a clear and concise manner.

Visitation and Parenting Time Issues

The agreement should have a chart that breaks down what holidays are being celebrated by the children and who has parenting time with the children in odd and even years on these holidays. The agreement should also clearly stress if the holiday falls after a weekend whether the weekend and holiday shall be observed by the same parent having parenting time with the children.

A Tiebreaker

Generally speaking most parenting agreements do not have time tiebreakers. So, if one parent has to confer with the other parent on a particular issue and the parents disagree how that issue should be resolved concerning the children, there needs to be a tiebreaker. The tiebreaker in most agreements is the residential custodial parent. Unfortunately, clauses giving the residential custodial parent the final say on significant issues involving the children can be misused by that parent.

Read the Agreement Carefully

If you are entering into a settlement agreement on a divorce to start with you should carefully read it. Review all terms, conditions, obligations and matters involving financial responsibilities, visitation and custody with your attorney. Make sure you are absolutely clear as to what your responsibilities are, and the responsibilities of the other parent are with regard to all of the terms and conditions of the agreemen

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. He has been representing parties in divorce and Family Court cases for more than 40 years. He can be reached for a free consultation at 800-644-6431 or e-mailed at Elliot@sdnylaw.com. .

Joint Custody

joint-custodyNew York State has a gender neutral custody law. There is no longer a presumption that either parent should have custody of the children. Both parents have equal rights to seek custody of their children. It should be noted equal rights to obtain custody is not the same standard as to what is in the children’s best interests. Courts determine who receives custody of the parties’ children based on what is in the children’s best interest.

Legal Custody

Legal custody of children is usually determined by a proceeding in front of a judge. Courts seek to avoid issuing court orders awarding joint custody to parents.

There is a Court of Appeals decision (the highest court in the State of New York) which states joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion. Situations where the parents do not get along, are not communicative with each other, are not right for joint ustody arrangements.

Quality Time with Children

Joint custody arrangements tend to work out when the children are very young. As children grow older they develop their own social circles and own friendships. Joint custody arrangements tend to get in the way of the children’s lives. Some studies have found it is not necessarily a benefit to the children for them to spend equal time with both parents.

Conclusion

Many parents seek to have equal parenting time with their children. It seems to meet the parents’ needs to develop a strong relationship with their children. However, giving each parent equal time with their children does not necessarily work out to be in the children’s best interest and equal parenting time arrangements generally break down as the children mature and go through puberty.

schlissel-headshotElliot S. Schlissel, Esq. is managing partner of Schlissel DeCorpo LLP. He has been representing parents in custody disputes for more than 30 years. He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.

False Allegations of Child Abuse in Divorces

Child-Abuse-in-Divorces

Divorces can be amicable or be a type of limited warfare between the parents. Sometimes the issue of who is going to be the residential custodial parent is a significant issue in a divorce case. It occasionally leads unscrupulous parents to create accusations of child abuse to further their desire to become the residential custodial parent of the children and have a negative impact on the other parent’s parental rights. One spouse can accuse the other spouse of abusing the children. It can be the result of anger or concern that the parent making the allegations will not be successful in obtaining custody of the children unless they resort to this underhanded, inappropriate strategy.

Parental Alienation

There is a method for one parent to demotivate a child from spending time with the other parent. The alienating parent to engages in a type of brainwashing called parental alienation. In this circumstance one parent convinces the child the other parent is abusing them. This is done during a litigated custody case. It is extremely important if this happens that an experienced child custody attorney be retained. Advocacy by this attorney can be used to point out to the court the lack of evidence of child abuse and how the allegations are specifically related to the ongoing custody case.

Orders of Protection

Temporary orders of protection are often granted to one spouse when they falsely accuse the other spouse of abusing the children. Aggressive legal action must be taken to demand a hearing with regard to these issues. These issues should not be allowed to linger. The longer the order of protection is in effect preventing one parent from having any interaction with the other parent or children, the more likely this will impact on the long term relationship between the parent whose kept away from the children.

schlissel-headshot

Elliot S. Schlissel, Esq. is an attorney who has dealt with child abuse and child neglect issues for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Grandparents’ Rights and Custody Issues

General-Website-Grandparents’-Rights-and-Custody-Issues

Grandparents who are raising their grandchildren face many practical, legal issues. Grandchildren who live with grandparents for periods of time are impacted on by a variety of the laws in the State of New York. Issues involving custody, visitation with the parents, who has custody of the grandchildren long term, where the grandchildren go to school, medical insurance for the grandchildren, child support issues between the parents and the grandparents are just some of the legal issues grandparents face. Is a grandparent authorized to make medical decisions for a grandchild?

Limitations Placed on Grandparents Raising Grandchildren

Grandparents who are raising their grandchildren do not necessarily have a legal right to make decisions involving a variety of issues concerning the health and general welfare of their grandchildren. For a grandparent to have legal authority over a grandchild the grandparent must obtain a court order. Physical custody is not the same as legal custody. If the children simply live with the grandparents they have what is commonly referred to as physical custody. However, the fact the grandchildren reside with the grandparents does not give them legal rights to make decisions regarding the grandchildren’s health care and school issues. Grandparents must bring a case in the Family Court to obtain temporary custody of their grandchildren. This will put them in a position where they can make decisions involving significant issues for their grandchildren. When a court grants a grandparent legal custody the grandparents then have legal authority to make decisions concerning the health and general welfare of the grandchildren.

Temporary Power of Attorney

In situations where the parents are cooperating, a temporary power of attorney can be given by the parent to the grandparents. This temporary power of attorney would give the grandparents temporary authority to make specifically delineated decisions on behalf of the grandchildren. The temporary power of attorney gives the grandparents specific legal rights that are clearly enunciated in the power of attorney. An example of these types of provisions may involve a grandchild travelling with a grandparent to another state or country and the grandparent is given authority during this trip to make medical decisions for their grandchildren. It should be noted the power of attorney can be revoked by the parents and has no impact on the legal rights of the parents to maintain custody of their children.

Adoption

Adoption is a permanent route for grandparents to exercise both parental rights and responsibilities over a grandchild. In essence, once the grandparents adopt the grandchild the grandparents now become the parents of the grandchild. Adoptions by a grandparent can be on consent of the parent or can be done in situations where the parents don’t consent but they have been found to be unfit, incapable or have deserted their children.

Elliot-Schlissel

Elliot S. Schlissel, Esq. has been working for grandparents’ rights with regard to issues concerning custody and visitation of their grandchildren for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Parenting After Divorce

You just went through a divorce. Your marriage is over. You have 2 children and those children have a mother and father who are now not living together, and they are going their separate ways. How do you help the children cope with the change in their life circumstances?  The answer is to cooperate and co-parent.

 

Co-Parenting After Divorce

Both parents should always work in their children’s best interests. It is important to put the children’s lives and best interests ahead of the parents. Children have daily routines, schedules, educational issues and a need for discipline. Both parents need to work together to help promote their children’s lives.  Even if the parents do not get along, they need to put their differences aside and put their children’s best interests in the forefront of their minds.  Parents divorce each other.  Children do not divorce their parents.

 

Successful Co-Parenting

Parents to successfully co-parent should communicate with each other on a regular basis regarding issues involving the children.  They should especially be consistent on addressing issues involving child rearing decisions.  They need to be flexible with each other and take into consideration each other’s work schedule to promote parenting time between the children and both parents.  There should be an accepted and established visitation schedule but the parents should maintain flexibility concerning the parenting time each parent has with the children.  The parents should be considerate of each other.

 

Supporting the Other Parent’s Relationship

Each of the parents should support the relationship the children have with the other parent.  This is true even if each of the parents have different parenting lifestyles.  Each of the parent should go out of their way to keep the other parent up to date with regard to the activities, sports, social situations and educational issues faced by the parties’ children.  Yes, the parents are divorced but No they should not allow their negative feelings about each other to burst onto the surface and impact how their children are being raised.

 

You and Your Ex Spouse

Sometimes parents feel the necessity of questioning their children about what they do when they spend time with the other parent.  This should be avoided.  Children should also not be made into messengers to convey information from one parent to the other parent.  In talking to your children should you find a disagreement with how certain matters are being handled by your ex-spouse, you should discretely listen to your children.  Thereafter, out of the Elliot Schlisselchildren’s purview discuss your issues and problems regarding your ex-spouses conduct, or parenting decisions.

 

Elliot S. Schlissel, Esq. is a family law attorney who has been practicing in the Metropolitan New York are for more than 4 decades.   He can be reached at. Elliot@sdnylaw.com or 800-344-6431.

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