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Mother Cannot Modify Custody of Children

FathersRights-150x150In a Westchester Family Court case, a mother sought to modify a judgement of divorce in which the father had received custody of the children. The judgement of divorce gave the father sole legal custody of his two young children.

The mother petitioned the Family Court in Westchester County to enter a new order giving her physical custody of the children. She claimed there had been a change in circumstances. She claimed further that the children now wished to live with her. The mother asserted that she was the superior parent and that the father was “unfit to be the custodial parent“.

The mother’s claims were rejected. The court found the mother’s claims were spurious. The father did not neglect the children. The court also placed on the record the facts and circumstances concerning the mother’s past substance abuse history. The mother also suffered from depression, had been involved in suicide attempts and had abandoned the children.

The children’s wishes were not controlling. The court stated in the decision that the desire of the children to live with their mother is not the sole controlling factor involving who should be the custodial parent. The judge found the father was a good parent and that there was no evidence that he had neglected his children. The mother’s argument that there had been a change in circumstances was not proven and it was in the best interests of the children to remain with their father.

Fathers’ Rights

Fathers have equal rights to custody in the state of New York. God gives each child two parents. The state of New York says that both parents have equal rights to be the custodial parent of their children. Fathers should be more aggressive in seeking custody of their children. They should be sensitive as to whether the mother is involved in parental alienation of their children.

The fathers’ rights attorneys at the Law Offices of Schlissel DeCorpo for three decades have been helping fathers obtain custody and visitation rights with regard to their children.

We take an aggressive stand on all fathers’ rights, custody, child support, parental alienation, orders of protection and visitation issues. In cases where there are orders of protection issued against fathers, we fight the orders of protection. We get the fathers back into their homes.

The fathers’ rights attorneys at the Law Offices of Schlissel DeCorpo have more than 30 years of experience helping fathers maintain relationships with their children. Contact us at 1-800-344-6431 or by email. We can help you!

No-Fault Divorce (Finally) Comes To New York

NoFaultDivorce-150x150Governor David A. Patterson recently signed a new groundbreaking “no-fault” divorce statute into law. The statute goes into effect on October 15, 2010 and brings New York into conformity with the other 49 states concerning the issue of no-fault divorce.

The statute provides for a new ground for divorce which does not assign blame or fault to either party. Instead, one of the parties to the marriage need only swear in an affidavit that the marriage is irretrievably broken for a period of six months. This becomes the sole basis for the divorce. All other issues involving child support, spousal maintenance, custody, equitable distribution of property and other issues that arise in a divorce are not effected by the new divorce law. These issues will still need to be worked out.

Prior to the new law, one of the parties either had to prove adultery, abandonment, cruel and inhumane treatment or imprisonment for a period of three years or that the parties were living separate and apart (pursuant to a written agreement of separation or a separation decree) for a period of one year. An individual seeing a divorce under the old law often had to lie in order to obtain a divorce with regard to the issue of grounds.

In addition to implementing no-fault divorce in New York, Governor Paterson also signed into law a number of other statutes related to divorce. One of these new statutes provides new guidelines for temporary spousal support during the course of a divorce. It also authorizes the court to grant a financially dependent spouse up-front attorney fees if necessary.

Although the legal process in dealing with the issue of fault in divorce has been simplified, their are still many complicating factors each of the parties must face involving issues such as custody, visitation, child support, spousal maintenance and equitable distribution. Should you be facing the prospect of a divorce, contact the attorneys at the Law Offices of Schlissel DeCorpo for a free consultation at 1-800-344-6431, or by email.

“Parenting Plan” Not A Substitute For A Separation Agreement

Handshake-150x150The State of New York has a very narrowly defined requirements regarding what needs to be in a separation agreement and how it is executed.

In late 2009 the Appellate Division for the Fourth Department (an upstate appeals court) held that a separated couple’s agreement which dealt with terms of custody and visitation for their three children did not satisfy the minium statutory requirements to constitute a Separation Agreement in New York. Therefore the parties living separate apart under the terms of this agreement for a period of one year could not use this as a basis for obtaining a divorce.

The court held that “it is a physical separation of the parties, not the written agreement, that supplies the grounds for divorce under the New York Domestic Relations Law section 170(6).”

Donald J. Scully and Carol M. Harr married in May of 1993. They separated in December of 2005. The couple executed a “parenting plan agreement” on May 11, 2007.

On May 13, 2008, one year and two days after they entered into this parenting plan agreement, Mr. Scully filed for divorce. Ms. Harr contested the matter. Her position was that the parenting agreement did not constitute a separation agreement under New York law. The Fourth Department of the Appellate Division agreed with her. They held that the agreement dealt solely with matters of custody and visitation, and even though it was signed and acknowledged by the parties, it did not constitute a separation agreement in conformity with New York State Law.

Separation agreements are complicated detailed documents. Should you and your spouse seek to enter into a separation agreement, feel free to contact the divorce lawyers at the Law Offices of Schlissel DeCorpo to discuss this matter at 1-800-344-6431, by email or on facebook.

Woman Jailed for Alienating Children from Father

parental-alienation-ii-150x150In June of this year Supreme Court Judge Ross, the supervising judge of the matrimonial courts in Nassau County, held that a mother, Lauren R., willfully violated his court order by intentionally and deliberately alienating her young children from her ex-husband Ted R.

Civil Contempt

Judge Ross held her in civil contempt and ordered that she be incarcerated every other weekend during the course of the summer. Judge Ross held that “the evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ stipulation of settlement.”

The judge’s decision also stated “the extensive record is replete with instances of attempts to undermine the relationships with the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unsatiated vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of good faith, and her imposition upon the children to fear her tirades and punishments if they embrace the relationship they want to have with their father.”

During the course of the hearing regarding this matter Mr. R testified to numerous occasions in which his ex-wife interfered with his visitation or took action to alienate the children from him.

During Mr. R’s testimony he told the court of events in the winter of 2007 when he was prevented from seeing his children for a period of 6 weeks. He was relegated to lighting a menorah for Hanukkah and watching his daughters open their grandparents’ presents in the back of his truck as the base of his ex-wife’s driveway.

Change In Custody

Judge Ross was so shocked by Mrs. R’s behavior that, in addition to holding her in contempt, he ordered a hearing to consider a change in custody and to consider Mr. R’s request for more than $134,000 in attorney fee’s to be paid by Mrs.R. The hearings on this matter were postponed due to an appeal brought by Mrs. R. Hooray for Judge Ross!!

This case should serve as a warning that both parents are responsible for putting their children’s best interests before their own anger at their spouses or ex spouses.

If you have problems involving parental alienation or interference with visitation contact the parental rights attorneys at the Law Offices of Schlissel DeCorpo 1-800-344-6431.

No Fault Divorce Comes To New York

dealdivorce-150x129New York is now joining the other 49 states in the United States with regard to divorce laws. The New York State Assembly has passed a no fault divorce law. Now both the State Senate and the Assembly have passed the liberalized New York divorce law, and it is anticipated that Governor Patterson will sign the new no fault divorce law very soon.

The new no fault divorce law will provide a ground for divorce where one spouse can unilaterally end a marriage by swearing under oath that the marriage has been broken beyond repair for at least six months. This is a major change in the divorce laws of the State of New York. New York was the last hold out to the modernization of its divorce laws; New York is now in synch with the other 49 states.

Up until now to obtain a divorce in New York, one party had to prove a fault ground such as cruel and inhuman treatment, abandonment, constructive abandonment, or adultery. The only ground for a no fault divorce was living separate and apart pursuant to a written separation agreement for one year.

It should be noted that the new divorce law only deals with the issue of fault. It does not deal with issues concerning child custody, visitation or division of property (equitable distribution).

The new law will allow individuals in an unhappy marriages to get divorced more quickly than they could have in the past. Critics claim that the new divorce law will allow people to place less importance on marriage and therefore increase the divorce rate.

Some critics have raised issues concerning the new divorce law with regard to individuals abandoning critically ill spouses. In situations where a spouse may need to go into a nursing home, obtaining a divorce may free the individual from supporting the spouse and create a further burden on Medicaid or other publically funded programs to pay the expenses for the nursing home. There is also concern that more affluent spouses will use the new divorce law to quickly end marriages and leave the less affluent spouses destitute.

I believe the new New York No Fault Divorce Law is a good thing for the residents of the State of New York. It may help simplify some divorces and make the system more efficient and user friendly. Query: Should marriage now become contract that is subject to renewal every 5 years?

If you have any questions concerning New York Divorce, contact the divorce attorneys at the Law Offices of Schlissel DeCorpo by email or at 1-800-344-6431.

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