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Dream Is Back with Mom

Dream Is Back with Mom

Be careful what you believe because that is what you will experience. Your belief system is a mechanism which ...

July 7, 2017
This is what divorce looks like after 50 years of marriage

This is what divorce looks like after 50 years of marriage

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June 14, 2017
FAQ

How to get full custody in New York State?

In New York, there are two types of full custody. A parent may obtain full legal custody, which means the parent has the authority to unilaterally make all of the important decisions on behalf of the minor child. Full physical custody refers to the parent with whom the child lives full time.

Courts in New York State generally are not enthusiastic about full custody, believing that the child benefits when both parents are actively involved. Full custody is appropriate, however, in many situations, and yours may be one of those. The attorneys at Sager Gellerman Eisner Attorneys at Law explain your options and help you achieve your goals relating to child custody or custody modifications.

Factors that influence who gets charge of the children in New York State

Revenge and anger are not legitimate reasons for seeking full custody. A New York court is likely to reject nearly any reason that doesn’t directly relate to the welfare of the child. In deciding whether to grant full custody, courts consider such factors as:

  • The ability of each parent to provide emotional and financial support
  • The ability of each parent to foster the child’s safe and healthy upbringing
  • Preference of the child, if the child is old enough to have a meaningful opinion
  • The ability of each parent to meet any special medical needs of the child
  • Criminal history of the parents
  • Drug use by the parents

Mothers do not automatically get full custody in divorce cases. Our law firm has convinced New York State courts to grant full custody to fathers on numerous occasions.

The attorneys at Sager Gellerman Eisner analyze your situation and advise you of the likelihood of obtaining full custody in your case. If you decide to seek full custody, our lawyers present a compelling case to the court that full custody would best serve your child’s interests.

Joint and shared custody laws

While shared custody might seem like a fair compromise in a potentially bruising custody battle, the focus of New York State courts is not on the parents, but on what is in the best interests of the child. So there is no guarantee that the court will agree to joint custody, even if the parents do. If joint custody is your preference, the attorneys at Sager Gellerman Eisner Attorneys at Law have the experience necessary to make a persuasive case to the court for your desired arrangement.

New York State law on joint custody

No law in New York State compels a court to impose joint custody by default. However, the appellate court in Braiman v. Braiman, 44 N.Y.2d 584 (N.Y. App. Div. 1978) wrote that joint custody is encouraged when:

  • It is a voluntary alternative to full custody.
  • The parents are stable and amicable.
  • The parents behave in a mature, civilized manner.

The court added that when joint custody is “imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.”

The important point here is that the parents’ behavior and attitude can greatly affect the court’s decisions on child custody.  In our experience, New York State judges are committed to securing a safe, stable home for children.

What are the grounds for divorce in New York State?

Before 2010, a petition for divorce required an allegation of fault on the part of the other spouse. These allegations were the “grounds” for the divorce. Some of the grounds for divorce in New York included:

  • Adultery — The petitioning spouse was required to provide proof of adultery. Evidence that would lead a reasonable person to believe adultery occurred was sufficient.
  • Abandonment for more than one year — The petitioner was required to prove that the other spouse lived elsewhere.
  • Imprisonment — At least three years’ imprisonment before the time of the petition was grounds for divorce.
  • Cruel and inhumane treatment — The physical or mental health of the petitioner was threatened to the point that the two spouses couldn’t safely live together.
  • Separation — If the spouses lived apart for at least one year under a written separation agreement, they could file for divorce.

Since 2010, petitioners for divorce in New York State may seek a no-fault route. The petitioner doesn’t have to allege any grounds for divorce other than that there has been an irretrievable breakdown of the marriage for at least six months. Regardless of the reason for your divorce, our attorneys help you obtain a favorable settlement or judgment.

How do I file for joint custody in NYS?

A parent, grandparent or a person with an established relationship with the child can petition the court for custody of the child. The person seeking custody would go to family court and file a petition requesting custody. You can work with your New York family law attorney to represent you. Custody arrangements can also be worked out through mediation.

No absolute right to the children in New York

Parents should also keep in mind that according to the New York Domestic Relations Law, “In all cases there shall be no prima facie right to the custody of the child in either parent.” This means that neither parent in New York State is presumed to have a right to custody. The court will not, for instance, award full custody to an unfit parent merely because the other parent would be an even worse alternative. The court is not required to place a child with the lesser of two evils.

Do grandparents have custody or visitation rights in NY?

Grandparents in New York State do not have an automatic right to custody or visitation by virtue of their biological link with their grandchildren. Grandparents can, however, petition the court to award custody or visitation. Circumstances that may work in your favor include:

  • A present or past custodial situation with your grandchild
  • A demonstrated bond between you and your grandchild
  • Contribution to the child’s basic needs, such as education, or other substantial financial support

A court evaluates any request for a custody modification based on the best interests of the child.

Protecting your grandchildren’s safety

If your grandchild’s present situation poses a danger to his or her safety or well-being, a New York State court may consider placing the child in your temporary custody until the threat subsides. Circumstances that may lead to temporary custodial rights include:

  • Domestic violence
  • Drug use by the parents
  • Child abuse by the parents
  • A generally unsafe living environment with the parents

A court also considers your fitness to assume child custody or visitation rights. It considers your own history, including criminal and abuse history, as well as your physical and mental health. If the parents oppose your request, these issues may be raised at your family court hearing.

The attorneys at Sager Gellerman Eisner Attorneys at Law help you assess your options for pursuing grandparental custody or visitation in New York State. Our lawyers will guide you through the complex family court process, listen to your concerns and answer your questions.

How to obtain a temporary order of protection in New York State?

An order of protection — also known as a protective order or restraining order — prohibits the abuser from contacting you or coming within a specified number of feet of you. The court enjoys a wide range of discretion in drafting the order. However, New York State courts require evidence that the person is actually a threat so that it does not limit his or her rights without good cause. The target of the order can challenge it at the hearing. Our law firm assembles the evidence and presents the court with a compelling case that an order of protection is needed.

How to get a protective order in New York

A temporary order of protection is designed to prevent immediate harm. A police call can result in a temporary order, but a hearing must be held to convert the temporary order into a long-term order. While the temporary order is in place, our attorneys use the time to explore long-term solutions to your domestic violence problems, such as:

  • Legal separation or divorce — Physical and psychological abuse are grounds for divorce.
  • Child support — Now that the abuser is out of your home, financial arrangements must be made for the care of your children.
  • Child custody and visitation — Physical and psychological abuse are grounds for challenging the abuser’s parental rights.
  • Spousal maintenance — If divorce is in the cards, you need to think about your financial future.

Father's rights in NY

As a matter of law, fathers have the same custody and visitation rights as mothers in New York State. In practice, however, many fathers feel that the deck is stacked against them. The courts, they believe, put a greater value on a mother’s contributions to a child’s upbringing. The family law attorneys at Sager Gellerman Eisner Attorneys at Law help you pursue your parental rights and maintain your bond with your child after your divorce.

There are ways to successfully assert fathers’ rights in New York. Consider the following:

  • Grants of full custody — There’s a widely held misconception that fathers cannot achieve full custody in New York State over the objections of the child’s mother. If the court is convinced that granting full custody to the father is in the child’s best interests, the court will order it. We have helped countless fathers gain full custody.
  • Shared custody arrangements — As a father, you can seek a shared custody arrangement that allows you to spend substantial time with your children. Our attorneys help you design a workable shared custody agreement.
  • Visitation rights — The court will take an older child’s wishes into consideration when determining a visitation schedule for the noncustodial parent.
  • Child support modifications — Child support arrangements in New York State are not set in stone. If circumstances change after divorce, as they often do, our attorneys petition the court for a change in your child support order.
  • Child custody modifications — If your ex-spouse is negligent in her parental duties or poses a danger to your child, our attorneys persuade the court to modify the custody order.

What rights does a father have in New York?

A father’s rights are equal to those of the mother in the case of divorce. If the parents of the child were never legally married, then the father has no custody or visitation rights unless he legally established paternity  in family court.

Child support enforcement in New York

If your ex-spouse refuses to comply with a child support order in the State of New York, the following options are available to you:

  • Enforcement action — You can petition the court to compel compliance with the child support order. The court often will order your ex-spouse to pay not only the arrearages but also interest on the past-due payments. Our attorneys file the enforcement action on your behalf and present your case to the court.
  • Attachment — When parents fail to pay child support, the court can attach their investments, property or bank account. A state agency forwards the money collected from the attachment to the custodial parent to cover overdue child support payments. Other property that can be attached includes real estate and motor vehicles.
  • Garnishment — The court can order your ex-spouse’s employer to make deductions from the ex-spouse’s paycheck to cover the unpaid child support.

Our attorneys help you decide which options for collecting overdue child support you should pursue, and then we petition the court for the appropriate orders.

What is defined as marital property in NY?

How is marital property divided in New York?

New York is one of 41 states that follow the doctrine of equitable distribution. (The other nine are community property states.) Under equitable distribution, marital property is divided between the spouses equitably, which means fairly — but not necessarily 50/50. Marital property generally is property that was acquired during the marriage by either spouse. Debts as well as assets can be marital property.

Nonmarital property, in broad terms, is property that a spouse owned before the marriage. A number of issues complicate this picture, such as:

  • Nonmarital property can become marital property if joint assets are used to improve or maintain the nonmarital property during the marriage.
  • The way in which property was acquired — as a gift or inheritance, for example — can make an asset nonmarital property even if it was acquired during the marriage.
  • When marital and nonmarital assets are commingled, nonmarital assets can become marital property.
  • Prenuptial and postnuptial agreements generally specify how the property will be divided during a divorce.

Gifts and inheritances as nonmarital property

There are a number of exceptions to the general rule that property acquired during the marriage is marital property. Among these exceptions are gifts and inheritances. If, for example, you personally inherited a vacation home or received valuable jewelry as a personal gift, this property should be excluded from equitable distribution.

New York courts presume, however, that any property acquired during a marriage is marital property. As a result, the burden is on you to rebut that presumption by proving that a particular asset was acquired as a gift or inheritance.

What does community property mean?

Community property vs. equitable distribution

In a community property state, property acquired during the marriage is considered to be jointly owned by the spouses and is divided equally upon divorce. New York, however, is an equitable distribution state. Equitable distribution seeks to divide marital property in a manner that is fair, but is not necessarily equal. Prenuptial and postnuptial agreements may also affect property division.

Property division in an equitable distribution state

In New York State, the equitable distribution of property as part of divorce involves a number of factors, including:

  • Duration of the marriage
  • Age and health of the spouses
  • Whether one spouse can demonstrate a need to stay in the marital home — for instance, if the custodial parent needs to keep the home to raise the children
  • Whether it is feasible to split the property down the middle
  • Whether the assets are liquid
  • Income of the spouses at the time of the divorce
  • Other court-ordered financial obligations, such as alimony
  • Likely financial future of each party
  • Whether one of the spouses wasted the couple’s assets
  • Whether a spouse fraudulently transferred property in anticipation of divorce

An equitable distribution in New York State is much more complex than a simple 50/50 split. Our experienced divorce attorneys help you understand how equitable distribution may affect your property, and we work hard to convince the court to make a distribution that is fair to you.

Same Sex Marriage

Alyssa Eisner’s understanding combined with her sophisticated perspective and experience dealing with all current New York State and national laws, including the U.S. Supreme Court decision of June 2013 and the July 2011 New York State Marriage Equality Act, equips her to properly handle any legal matters impacting same sex couples. Sager Gellerman Eisner LLP are experienced in divorce and matrimonial cases for same-sex couples in New York dealing with:

  • Divorce & Separation agreements
  • Child custody
  • Visitation rights
  • Issues concerning biological and non-biological parents
  • Spousal or child support
  • Pre-nuptial agreements