At Simon and Milner, we handle various types of family and matrimonial cases. Click on a title below to read more about each case type:A: AdoptionAdoption is the process by which you become the legal parent of a child that is not your own.
Whether you are seeking to adopt a child from a relative, from foster care or you wish to adopt your own step-child as your own, you need the approval of the Family Court (except in Nassau County where some adoptions are handled by the Surrogate Court).
The process is started by the filing of a Petition in the Family Court. Simon & Milner will be able to assist you in the preparation of a petition.
In a simple adoption case (such as where you seek to adopt a step-child and the other parent is either deceased or given their consent) you will only have to appear in court once, at the conclusion of the case for the Judge to meet with you and the child you are seeking to adopt and to sign off on the paperwork. In other more complex cases, additional court appearances will be necessary.
Before you can even file for adoption of a child whose parents are still alive, those parents must have had their parental rights terminated either voluntarily or by Court order. For more information on voluntary surrenders of parental rights click here. For more information on court ordered terminations of parental rights click here.
After you have filed for adoption there are several steps that the Court will take prior to approving the adoption.
First you must submit to a home study. This means that a representative from ACS or CPS (depending on where you live) will come to your home and will want to inspect each and every room. They will also personally interview you as well as any other people living in your home.
Next you must have fingerprints taken so that a criminal background check may be run on you. The Court will also want to run your name through the domestic violence registry, sex offender registry and child abuse registry. Obviously, if there are hits for your name, this could cause complications to your adoption case.
In addition, if you are adopting someone else's child by consent (meaning they are giving you permission to adopt the child… as opposed to someone who had their child taken) you may also need to work out a “Post Adoption Contact Agreement” with the party from whom you are adopting the child.
Sometimes, people place their children for adoption because they are just unable to care for the child properly but it does not mean they want to give up all rights to the child. In this case, you need an experienced Family Law attorney to help you work out the details of such an arrangement.
Simon & Milner will guide you through each step of the process and ensure that the Court is in receipt of all of the proper documents.
__________AS: Surrender of Child for Adoption
Sometimes, a person is simply unable to care for their child, whether they don't have the money, are too young, or are just psychologically or physically unable to. In a case such as this, you may sign a voluntary surrender of the child to any other person.
However, just because you are unable to care for your child does not necessarily mean you want to give up all contact and connection to that child. In such a case, you need the assistance of an experienced Family Law attorney to prepare a “Post Adoption Contact Agreement”.
Simon & Milner has decades of experiencing preparing Family Court agreements and are aware of all of the important hallmarks of a proper “Post Adoption Contact Agreement.”
It is vital that before you enter into any kind of voluntary surrender of your child that you speak to an experienced family law attorney first. Once you sign the surrender it is not very easy to take it back. Very importantly, any type of Post Adoption Contact Agreement must be entered into BEFORE the surrender of your child.
Of course, the most important consideration to keep in mind is that once the adoption has been finalized by the Court THERE IS NO GOING BACK. Once your parental rights are terminated, you cannot have them back. Your child is no longer your child, but the child of someone else.
You are only permitted contact with them at that point pursuant to a Post Adoption Contact Agreement. Even if the new parents do not follow the post adoption contact agreement, the adoption cannot be voided. Your only remedy is to take them back to court to enforce the agreement.
Simon & Milner cannot stress enough how important it is to talk to an experienced attorney prior to surrendering a child for adoption.
________B: Permanent Termination of Parental Rights
A proceeding to permanently terminate parental rights is exactly what it sounds like. The Petitioner is asking the court to terminate your parental rights so that your child can be placed for adoption. Except in rare circumstances, only CPS/ACS can file such a petition.
In order to permanently terminate parental rights the Court must find by clear and convincing evidence:
Abandonment of the Child
Abandonment is found when: the parent demonstrates an intent to forego his or her parental rights and obligations as demonstrated by his or her failure to visit the child and communicate with the child or agency (CPS/ACS) although able to do so and not prevented or discouraged from doing so by the agency.
Permanent neglect of the Child
- Basically, if your child is placed into foster care as a result of a Child Protective Proceeding and you fail to visit or contact the child or to take advantage of any services (i.e. substance abuse treatment, anger management, etc…) offered by CPS/ACS you are deemed to have abandoned your child.
In order for a finding of permanent neglect to be established, the court must find by clear and convincing evidence that:
Mental Retardation of the Parent
- The child is in the care and custody of an authorized agency (CPS/ACS).
- The parent of that child has failed to maintain contact with the child or plan for the future of the child for a period in excess of one (1) year.
- This is basically the same standard as abandonment except that under these circumstances, even if the parent maintains contact with the child, if the parent fails to plan for the future of the child (i.e. find appropriate housing to reside with a child, find employment, get into a substance abuse program, enter other parenting classes, etc…) the parent can be found to have permanently neglected the child.
- The parent was physically and financially able to maintain contact and plan for the future of the child.
- The foster care agency used diligent efforts to encourage and strengthen the parental relationship.
- This is very important. If the agency with which the child was placed did not assist the parent in completing services and did not continue to attempt to engage the parent in contacting their children and explaining to them the importance of utilizing the services recommended by ACS/CPS the petition to terminate parental rights will be dismissed even if the parent has not availed themselves of the services offered to them.
Mental Illness of the Parent
- If the court finds that a parent suffers from mental retardation that is of such a serious nature that the parent cannot care for the child presently or for the foreseeable future the Court may order a Permanent termination of parental rights.
Severe and repeated abuse of the child
- If the court finds that a parent suffers from mental illness that is of such a serious nature that the parent cannot care for the child presently or for the foreseeable future, the Court may order a permanent termination of parental rights.
Surrender of the Child
- The court may permanently terminate parental rights if it finds by clear and convincing evidence that the child has either been severely abused or repeatedly abused defined as follows:
- A severely abused child is a child found to be abused as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life which results in serious physical injury to the child.
- There are other ways that a finding of severe abuse could be entered as well such as murdering a child in your care or custody, prostituting a child in your care or custody and other very serious acts.
- A repeatedly abused child is a child who has been found to be abused by a parent who has already been found to have abused that child within the previous five (5) years.
- There are several other additional criteria which are beyond the information that is provided on this website.
- CPS/ACS has the option but is not required to make efforts to reunite a child with their parent once a finding of severe or repeated abuse has been entered and there is no requirement for ACS/CPS to prove substantial efforts to reunite a child in a termination of parental rights proceeding based upon severe or repeated abuse provided ACS/CPS has made a motion to relieve themselves of the obligation to promote reunification of the parent and child.
D: Juvenile Delinquency
- If you voluntarily surrender your child, your parental rights will be permanently terminated.
and E: Designated Felony (committed by a child ages 13 – 15)
These two (2) types of petitions are both basically the same. They are alleging that your child has committed a criminal act. Simon & Milner understands how stressful a time period this may be for you. Very often such allegations catch parents completely by surprise and they just don't know what to do or where to turn. Contact an experienced attorney at Simon & Milner who will help guide you and your child through this very stressful time in both of your lives.
The only difference between D & E petitions is that a Juvenile Delinquency (D Petition) alleges that a child under the age of 16 has committed an act which if that same act was committed by an adult would be considered a crime. A designated felony (E Petition) is the same allegation but it applies to certain violent felonies and repeat offenders. The major difference is that the level of punishment under a designated felony petition is greater.
Juvenile delinquency proceedings are similar to criminal proceedings but are not the same. Unlike criminal proceedings, the goal is not to punish the offender but rather to treat the child and attempt to “set him on the right path.” However, if the child is deemed to be a danger to the community, the child could be placed into some type of incarceration or other secure facility.
Juvenile Delinquency proceedings begin either by the filing of a petition against your child alleging that he is a juvenile delinquent, the issuance of a Family Court Appearance Ticket to your child for alleged acts that would be considered a crime if they were an adult, or the arrest of your child for alleged acts that would be considered a crime if they were an adult.Who can be charged as a juvenile delinquent?
Any child over the age of 7 and under the age of 16 who is alleged to have committed an act that if committed by an adult would be considered a crime (misdemeanor or felony). Children under the age of 7 are presumed to not be responsible for their actions and children over the age of 16 are considered adults under the New York State Criminal Procedure Law.
Can the Police Arrest my Child without informing me?
If the Police believe your child has committed a criminal offense the Police may detain your child and bring him or her to the Police station. However, the Police are required to make a good faith attempt to contact you before attempting to speak with your child. With few exceptions, any statement that your child makes to the Police without first being permitted to speak to his parent/guardian will be ruled inadmissible at a juvenile delinquency proceeding.Are they going to make my child take mug shots and get fingerprinted?
This depends on the nature of the offense and the age of your child. If your child is 13 years of age or older at the time he is arrested and the offense with which he was charged would be a felony if he were an adult, your child will be fingerprinted and photographed. In addition, if your child is 11 years of age or older and charged with what would constitute an A or B felony (the most serious criminal charges possible) for an adult they will be finger printed and photographed. In almost all other situations, your child will be exempt from being photographed and fingerprinted at the time of arrest.What is going to happen to my child between the time they are arrested and the conclusion of the case?
Usually, the child will be “released to the custody of his parents” along with a variety of restrictions (such as a curfew) which the parent must abide by. This means that as the parent you will be responsible for ensuring that your child obeys any orders of the Court.
However, if the Court believes there is a substantial probability that your child will not appear in court if released or that there is a serious risk your child will commit another act (which would be considered a crime if committed by an adult and that there are no reasonable efforts that can be taken to avoid removal of the child from your home), the child may be detained pending the outcome of the juvenile delinquency petition.
However, it is important to keep in mind that unlike criminal court, children in juvenile delinquency proceedings have no right to bail.How long will a case like this take?
There are very strict time limits that apply to juvenile delinquency proceedings. Once your child has been arrested or a petition has been filed against him the child must be arraigned by the next court day if he is custody and within ten (10) days if the child is not in custody.
Once the child has been arraigned, the trial must begin within sixty (60) days. If your child is in custody, the trial must begin within three (3) days except in cases of serious felonies in which case the trial must begin within fourteen (14) days.
If your child is adjudicated to be a juvenile delinquent, the dispositional hearing (to determine what action the court will take) must be held within fifty (50) days, unless the child is in custody, in which case the hearing must take place within ten (10) days.What is going to happen at the first court appearance?
The first court appearance is very similar to an arraignment in criminal court. Your child is advised of the charges against him and is asked to either admit or deny the charges against him. The Court will also decide if your child should be released to your custody or detained pending the outcome of the proceeding.What will happen after the initial court appearance?
After the initial court appearance the procedure is very similar to criminal court. (For more information on criminal law please click here). Your child's attorney will have an opportunity to review the charges and evidence to be presented against your child. Your child's attorney will have an opportunity to challenge various pieces of evidence and ask that it be suppressed due to various violations of your child's rights.
Usually your child's attorney will attempt to negotiate a resolution (also known as a plea bargain) with the County Attorney (or other attorney representing the agency prosecuting your child). If plea negotiations are unsuccessful the matter will proceed to a fact-finding hearing (trial). Just as in criminal court the burden is on the state to prove that your child committed the acts with which he is charged beyond a reasonable doubt.
It is important that you have an experienced family law attorney who also has knowledge of criminal law to assist your child in their time of need. Significant rights are at stake and you need to make sure your child is adequately protected!
What happens if my child is found to have committed one or more of the acts they are charged with?
This is the equivalent of a finding of guilty in the Criminal Court. Your child has been found guilty of some sort of act that would be considered a crime if they were an adult and the Court must now determine how it will deal with your child. The court makes this determination at a dispositional hearing. The hearing must be held within ten (10) days if your child is detained and within fifty (50) days if your child is not detained.
Unlike criminal court, prior to imposing a sentence the Court will hold a full hearing to determine what actions, if any should be taken against your child.
The court must find that your child “requires treatment, supervision or confinement.” If the Court is unable to make this finding, the Petition against your child will be dismissed even if they have been found to have committed the acts as alleged in the petition.
It is important that you have an experienced family law attorney to fight for an appropriate outcome for your child.
Factors which the Court will take into account on behalf of your child include:
What are the possible outcomes of a dispositional hearing?Dismissal of the Petition
- Evidence that the criminal act was an isolated incident.
- Evidence that your child has shown remorse.
- Evidence that you as the parent have instituted new controls to better supervise your child.
- Evidence that the parent has the capability to supervise the child.
- Evidence that the child will be amenable to parental supervision.
- This will occur if after the dispositional hearing the Court determines that the child does not “require treatment, supervision or confinement.”
- This is the only disposition which will not result in your child being labeled a “juvenile delinquent.”
- The court will discharge your child subject to certain conditions (i.e. regular attendance at school, pass random drug tests, do not get re-arrested, etc…).
- The conditional discharge can last for up to 1 year.
- If your child violates the terms of the conditional discharge he can be brought back to Court for additional consequences.
In addition to setting various conditions which your child must adhere to, the Court will also assign your child a probation officer for a period of up to two (2) years.
Placement outside of the home
- The probation officer will require your child to come to their office for regular visits and may also make surprise home and school visits to ensure your child is complying with the orders of the court.
- Should your child violate the terms of probation he can be returned to Family Court to face additional consequences.
Child and Spousal Support (F Petitions) & and Uniform Interstate Support (U Petitions)Child and spousal support is one of the most common reasons that people go to the Family Court.
- For more serious offenses or where the court believes that the community needs to be protected from your child, the Court may place the child in a facility outside of your home.
- Depending on the nature and severity of the offense your child could be placed in a non-secure group setting, a secure detention center, or something in between.
- The placement outside of your home can be for up to 12 months if your child was found guilty of a charge that would ordinarily be a misdemeanor and up to 18 months for a charge that would ordinarily be a felony. However, the Court has the right to extend this placement for additional one year periods as the Court deems necessary up until your child turns 18.
The law requires that both parents contribute to the support of their children according to the financial ability of each parent.
Although support seems like a simple concept the reality is that in many instances a support case can become quite complex and the assistance of an experienced Family Court attorney will be very helpful to getting the results you deserve.
The only major difference between an F petition and a U petition is that a U petition is filed by an out-of-state resident against a non-custodial parent living in New York State or by a custodial parent living in New York State filing a petition against a non-custodial parent residing outside of New York State. In a U petition, the petitioner does not need to appear in Court. Instead, an attorney for the County will be present to represent the Petitioner's interests.
What is the difference between spousal support and child support? Can I get both? Do I have to pay both?
Child support is money you are required to pay for the support of your children. Spousal support is money you must pay to support your spouse.
It is possible to go to family court seeking both spousal support and child support.How do I qualify for Spousal Support?
You must be legally married to the person from whom you are seeking support. Typically, you must be considered the “non-monied” spouse (the spouse with less income) in order to ask for spousal support.
Whether or not the Court will grant you spousal support and how much they will grant you is based upon a complex set of many factors. In order to find out more about spousal support you should speak with an experienced Family Law attorney.How do I qualify for Child Support?
You must be the primary custodial parent. This means that the children are living with you more than 50% of the time. If that is the case, the other parent legally responsible for your child must pay you child support.
If you are seeking child support from the father of the child you must first establish that the individual is in fact the father of the child. For more information on establishing paternity click here.How much child support am I entitled to?
In general, if the combined income of both parents is under $130,000 the Court will follow a very simple formula known as the Child Support Standards Act (CSSA). Child support will be calculated as a percentage of gross income minus social security tax, Medicare tax and local income taxes (other deductions are sometimes possible as well). The applicable percentages are as follows:
- 1 child: 17%
- 2 children: 25%
- 3 children: 29%
- 4 children: 31%
- 5 or more children: no less than 35%
If the parents' combined income is over $130,000 the calculation is based on many other factors and becomes much more complex. Furthermore, if the parents have a very low income, additional deviations may be permitted as well.
The above percentages are the presumptive amount
of child support. An experienced Family law attorney may be able to argue that you are entitled to a “deviation from the standard” thereby possibly entitling you to receive more money or pay less money. Your ability to receive a deviation will depend upon your individual circumstances.
In addition to the above percentages, the non-custodial parent may also be required to pay a pro-rata share (based upon the parties income) of unreimbursed medical expenses and/or health insurance premiums as well as a pro-rata share of child care expenses if the custodial parent is gainfully employed.What happens if I can no longer afford the Order of Support? What about if I need more child support?
Things happen. People lose their jobs, get injured, are forced to move. The Family Court provides for such a situation. If you have experienced an “unanticipated change of circumstances” since the entry of the order of support you will be entitled to a modification of the child support order.
It is important to keep in mind that the change of circumstances must be unanticipated. This means that simply having less money available to you because the prices of goods and services have gone up is not sufficient for a change of circumstances because inflation is clearly something that was anticipated.
An example of unanticipated change of circumstances would be involuntarily losing your job, (you cannot quit just to claim a change of circumstances), getting injured or ill to the point you must miss work, extraordinary additional unexpected expenses, etc…
The party seeking the modification must first demonstrate that there has in fact been an “unanticipated change of circumstances.”
Once that has been established, the Court will recalculate the order of support based upon the non-custodial parent's then existing income.
It is important to have an experienced Family Law attorney who will be able to review your financial situation and determine what, if any, your change of circumstances is, and the proper strategy to maximize the modification as a result of this change of circumstances.How long must I pay child support for?
You are required to pay child support until your child has become “emancipated.” Emancipation in New York State is defined as:
- Attaining the age of 21.
- Full time employment while no longer attending school.
- Enlisting in the military.
- Refusal to follow reasonable rules set out by the parent such that the child leaves the home to avoid parental control.
- Some other factor as may be agreed to between the parties.
Although it sounds silly, simply because your child is emancipated does not mean you can stop paying child support. You must still file a petition with the Family Court asking that the Order of Child Support be terminated.Is the money going to be automatically taken from my salary?
Unless the party entitled to receive the child support agrees that you can pay voluntarily, you must pay child support through the New York State Support Collection Unit (SCU). If you are a W-2 wage earner they will send an income execution to your employer requiring them to withhold the proper amount of child support from your salary each week and remit it directly to SCU.What happens if I refuse to pay? What happens if the non-custodial parent refuses to pay me?
If you fall behind on child support payments or any other additional support the Court ordered you to pay, the parent entitled to receive the support may file a Violation Petition against you asking the Family Court to hold you in contempt of court for refusing to obey the order of child support.
The Court will hold a hearing to determine how much you have failed to pay in child support and whether or not the failure to pay was “willful.” Once it is proven that there was a valid order of support and you did not make timely payments your violation will be presumed to be willful.
The burden of proof will be on your to establish that you were unable to make the required child support payments. It is important to note that quitting your job and/or being fired for cause would still be considered a willful violation as your inability to pay would be based upon your own actions.
If the Court determines that your violation was non-willful (i.e. you simply did not have the means to pay the order) the Court may do any of the following:
- Enter a money judgment against you for the total amount owed.
- Issue an income deduction order and submit to your employer.
- Require the posting of a bond to ensure future payments.
- Suspension of your drivers' license.
- Suspension of your recreational and sporting licenses (i.e. hunting license, fishing license, etc…).
However if the Court determines that the violation was willful, meaning that you had the means and ability to pay the order the Court will enter a finding of willfulness and may proceed as follows:
- Enter a money judgment against you for the total amount owed with 9% interest from the date each payment was due.
- Place you on Probation.
- Require your participation in job training or educational programs.
- Sentence you to up to 6 months in jail.
It is essential that you have an aggressive experienced Family Law attorney to protect your rights at a violation hearing. Navigating a violation hearing can be very tricky and many parents with valid claims for violations see their cases dismissed just as many non-custodial parents are found to have willfully violated the Order of Support when they may have had a valid excuse. An experienced attorney from Simon & Milner will help to ensure that you get the results you deserve at a violation of an order of support hearing.Guardianship (G Petition)
Guardianship petitions are filed when you are seeking to become the guardian of a child under the age of 21. To become a legal guardian means that you have been given the authority by the Court to take care of the child and to plan for that child's future. As guardian you will have the right to enroll the child in school, consent to medical treatment and many other rights that are usually attendant with being a parent.
The major difference between a guardian and a parent is that a person can obtain guardianship over a child without terminating the parental rights of the biological parents. In addition, a guardian, unlike a parent does not a have a duty to support the child. For instance, you can become the “permanent guardian” of a foster child who gives you the right to be that child's guardian until they turn 21 but will still allow you to collect foster care stipends.
There are many reasons one may want guardianship over a child. Perhaps the parents are still alive but for some reason (maybe illness) are unable to take care of the child. In a case such as this the child needs someone to take care of them but clearly the parents would not want to lose their parental rights.
Sometimes, foster parents who wish to adopt their foster child but simply do not have the economic resources request guardianship over their foster children as it allows the children to remain in their home while receiving foster care stipends.
Other times, a child may have been freed for adoption because their biological parents had their parental rights terminated but the child does not want to consent (a child 14 years or older must consent to be adopted) to be adopted by another person, they wish to remain the legal child of the parent whose rights were terminated. These are just examples; people apply for guardianship for many reasons.
Like all cases involving children in family court the ultimate decision regarding whether or not guardianship will be granted to a specific person is based upon “the best interests of the child.”Application for a Minor to Get Married (M Petition)
For obvious reasons, this type of petition is rarely if ever filed, particularly in today's day and age. Odds are if you are on this page, you were simply curious.
New York State does allow children as young as age 14 to get married. For 16 and 17 year olds only the permission of both parents is required. However if the child is 14 or 15 years of age a petition must be filed with the Family Court and the marriage must receive the approval of a Family Court judge.NA: Child Abuse
NN: Child Neglect
Child Abuse and Child Neglect proceedings are initiated by either CPS (child protective services) or ACS (Administration for Children's Services) depending upon the County in which the child resides.What is the difference between Child Abuse and Child Neglect?
In terms of definitions, Child Abuse consists of the actual physical abuse of a child which causes or creates a substantial risk of death or serious physical injury or protracted impairment of psychological well being. It can include excessive corporal punishment, sexual abuse, or physical abuse.
In terms of definitions, Child Abuse consists of the actual physical abuse of a child which causes or creates a substantial risk of death or serious physical injury or protracted impairment of psychological well being. It can include excessive corporal punishment, sexual abuse, or physical abuse.How does a Child Abuse or Neglect Case begin?
Usually, you are not even aware when the case is first beginning. A child abuse or neglect case usually begins when the child abuse hotline receives an anonymous tip or complaint regarding you or someone else involved in your child's life.
Certain people are required to report suspected abuse or neglect of children, these people are known as mandated reporters. Even if they have a duty of privacy to you, they are required to report the suspected abuse or neglect even though it violates your privacy.
Mandated reporters include: Doctors, nurses, EMTs, any type of mental health professional, social workers, teachers, any other school officials, day care workers, substance abuse counselors, district attorneys and police officers.
In addition to mandated reporters, anyone can call the New York State Child Abuse Hotline to report suspected neglect or abuse of a child. All calls to this hotline remain confidential so you will never, under any circumstances be permitted to find out who made the original call.How Will I know someone has made a complaint against me to the Child Abuse Hotline?
CPS/ACS is required to notify you once someone has made a report about you to the ACS/CPS hotline. CPS/ACS then has a certain period of time during which they must investigate and determine their findings.Do I have to let CPS/ACS into my home? Should I speak to them?
Once the child abuse hotline receives the tip, an employee of CPS or ACS will usually attempt to conduct a home and/or school visit of both you and the child.
In general, in our opinion it is not a good idea to speak to CPS/ACS. Very often, they will just surprise you by showing up at your house. They will almost always act as if they have the right to enter your premises. THIS IS NOT TRUE. You DO NOT have to speak to ACS/CPS and you certainly are NOT REQUIRED TO ALLOW THEM INTO YOUR HOME OR TO SPEAK TO YOUR CHILD unless they have a Court Order.
There is of course nothing you can do to prevent ACS/CPS from showing up at your child's school to talk to your child and his teachers or to prevent them from knocking on your neighbor's doors to ask questions about you. However, you certainly have the right to tell your children that they are also NOT REQUIRED TO SPEAK TO ACS/CPS. ACS/CPS is generally very pushy and acts as if they have the right to do whatever they please. DO NOT BE INTIMIDATED!!!
Even if you have nothing to hide, there is really no good reason to allow CPS/ACS into your home. In our experience, Simon & Milner has found that ACS/CPS is expert at finding problems where none exist, especially if they are responding to a complaint, in which case, they will already be looking for issues.
The best thing to do if you are contacted by ACS/CPS or if they show up at your home is to call an experienced family law attorney at Simon & Milner who will be able to advise you appropriately as to how to proceed.Ok, they came to my home and investigated. What happens next?
CPS/ACS must decide how they wish to proceed. In general, there are 3 possible outcomes to a CPS/ACS investigation.
What happens once CPS/ACS files an Abuse and/or Neglect Petition?
- CPS/ACS determines the report is unfounded: This means that CPS/ACS found no credible evidence to support the abuse or neglect you were alleged to have committed. In this case, all records with respect to the investigation are sealed and can never be used against you in the future.
- CPS/ACS determines the report is indicated but takes no further action: In such a case, this means that CPS/ACS determined there was “credible evidence” that you have committed the act or acts consisting of neglect or abuse as alleged in the call to the Child Abuse Hotline. In a case such as this, CPS/ACS simply makes a notation in the Child Abuse Registry that you have committed a certain act. This report will remain in the registry until your youngest child's 28th birthday. There is no way to eliminate it earlier unless you make an administrative appeal within sixty (60) days of the determination.
- If you have a job involving contact with children, your employment could be jeopardized and it will be much harder to find another job involving contact with children. However, CPS/ACS has determined that you are not an imminent threat to your child so they will take no further action.
- CPS/ACS determines the report is indicated and files a Child abuse or Child neglect Petition: In this case, CPS/ACS has determined that there is credible evidence that you committed certain acts of abuse or neglect towards your children and feels that the child is in need of court intervention in order to protect the child.
Very often, before the Petition is even filed, CPS/ACS will use their emergency removal powers to remove your child from the home and place that child with another relative (if possible) or directly into Foster Care.
The facts and circumstances required for an emergency removal are too complex to get into on this website, but odds are if you are reading this page your child has already been removed from your care and you need to contact an experienced Family Law attorney immediately!
After your children have been removed however, the Petition must be filed within three (3) days and you must be given an opportunity to appear in Court to answer the allegations in the Petition.What if I didn't do anything wrong? How do I get my children back?
The law provides for what is known as a 1028 hearing. If you demand such a hearing, the Court must hold a hearing within 3 court days to determine if there is any feasible alternative to protecting your children other than removing them from your care and custody.
It is important that you have the services of an experienced Family Law Attorney for such a hearing. If you win the hearing, you will get your child back pending the outcome of the Petition.What can I expect to happen at the first court appearance?
At the first court appearance, the Family Court must take several steps:
My Relative had their child taken away as a result of a Child Abuse or Neglect Petition. Can I help by volunteering to care for the child while the case is pending?
- Appoint a law guardian to represent the interests of the child or children.
- Advise you of the specific allegations of the petition and give you an opportunity to enter a denial to the allegations.
- Give you an opportunity to request an adjournment so you can hire an attorney (assuming you have not already hired one).
- Hold a hearing to determine if it is in the child's “best interests” to continue the placement of the child outside of the home.
- Advise you of your right to request a 1028 hearing for the return of your child if the Court determines that your child is going to remain in Foster Care Placement.
Yes, absolutely. This can avoid the emotional damage that a stay in foster care might cause. As long as you have the consent of one of the parents, any relative may move to intervene in a proceeding such as this for the purposes of seeking temporary custody of the child that is the subject of this proceeding. As an intervener, you would be permitted to participate in all aspects of the child protective proceedings.
If you think you may need to intervene in a Child Protective Proceeding you first should speak to an experienced Family Law Attorney.Will I be able to visit my child if they are placed in Foster Care?
Yes, the law requires that you are permitted to see your child at least once every two (2) weeks unless the visits would place your child in imminent danger. Most of the time, the Court will order that CPS/ACS provide visitation much more often than once every 2 weeks as well as provide you with regular telephone contact with your children.What can I expect after the initial court appearance?
Child protective proceedings are very complex and can drag on for months or even years. There is no formula as to how a case like this can proceed. Books could be written about this entire process so there is no way to fully explain this area of the law on our website. However, all child protective cases follow the same general path:
The first few appearances will be simply conferences between your attorney and the attorney for the child as well as the attorney for CPS/ACS and the Judge so all of the parties can attempt to determine visitation and other arrangements for contact with your children while the proceeding is pending, and also so that CPS/ACS can suggest various “services” (i.e. parenting classes, substance abuse, anger management, etc…) to expedite the process of returning your children, and finally, to negotiate a resolution to your case.
A resolution could be a full withdrawal (dismissal) of the Petition by ACS/CPS but this is unlikely unless ACS/CPS has no evidence with which to proceed.
The parties could agree to an ACOD. In cases involving relatively minor allegations this is sometimes used as a method to resolve the matter. Essentially, the matter is placed on hold for a period of 1 year. During that 1 year, you agree to abide by certain conditions. Assuming you adhere to all of the conditions the petition will be completely dismissed after the 1 year period has expired.
Most of the time, if a case is going to be resolved without a trial the parties agree upon some kind of full resolution other than a withdrawal or ACOD in which both the finding entered by the Court as well as the disposition (see below for more info) are agreed to in advance (it is sort of like a plea bargain in a criminal case).
After a series of conferences, if no resolution has been agreed to there will be a fact-finding hearing.
The fact-finding hearing is just like any other trial. The Petitioner (ACS/CPS) must present their evidence first. The Respondent's (you) attorney gets an opportunity to cross-examine all of the Petitioner's witnesses. The Respondent then gets to put on their own case and the Petitioner's attorney gets to cross examine your witnesses.
If the Judge finds that you have committed the allegations in the Petition by a preponderance of the evidence the allegations in the Petition will be sustained and a finding of either abuse, neglect or both will be entered against you.
Depending upon the circumstances, the Judge may also enter a finding of Aggravated Circumstances:
- A finding of aggravated circumstances means that the Judge has found by clear and convincing evidence that the child was severely abused, repeatedly abused, or permanently neglected.
If the Judge does not find that the allegations were proven by a preponderance of the evidence the petition will be dismissed and all of the records will be sealed.
Once a finding is entered against you, the record will be sealed from the general public but the record will be entered into the State Central Child Abuse Registry and remain there until your youngest child is twenty-eight (28) years old. If you have a job which involves children your employment opportunities may be significantly impaired as a result of this type of finding.
If a finding has been entered against you, the Court will then conduct a Dispositional Hearing:
Essentially, this hearing is held to determine what the Court should do as a result of the finding that has been entered against you.At the dispositional hearing the Court will consider many factors including:
- The nature of the findings against you (what exactly the Court found you did to either neglect or abuse your child).
- The best interests of the child.
- The current needs of the child.
- The present fitness of the parent.
- The family's prior involvement with CPS/ACS.
- If the child has already been returned to you the Court will also consider whether or not you have complied with the terms and conditions upon which the child was returned to you.
- If the child remains out of your home the Court will then consider the efforts you have made towards resolving whatever problems caused the finding of neglect or abuse to be entered in the first place (i.e. have you successfully completed substance abuse treatment, anger management, etc…)
The Court has enormous discretion to order a wide variety of possible dispositions. The most common include:
- Issuance of an Order of Supervision with or without an Order of Protection: An Order of Supervision basically means that your children will be released to you but you will be subject to the supervision of CPS/ACS for a period of one (1) year. During this 1 year period you must comply with all of ACS/CPS reasonable requests (such as random drug tests, home visits, completion of various self-help seminars, etc…).
- CPS/ACS will be required to file progress reports with the Court in order to keep the Court updated with respect to your progress. If ACS/CPS believes that you still require supervision they may apply to the Court to extend the Order of Supervision for an additional year.
- In addition, the Court may issue an Order of Protection on behalf of the child which orders you not to engage in certain behaviors (such as consuming alcohol) in the presence of your child. Violation of an Order of Protection can subject you to jail time in addition to CPS/ACS filing additional petitions against you.
- Placement of the Child with a Relative: The Court can order that the child is to be temporarily placed into the custody of a relative. During this period of time the Court will set an Order with respect to your rights to visit your child and maintain telephone and other contact as well. The temporary placement lasts until at least the next Permanency Hearing.
- Placement of the Child with ACS/CPS: If no qualified relative is available the Court can order that the child be temporarily placed with an agency sponsored by ACS/CPS such as a group home or Foster home. The temporary placement lasts until at least the next Permanency Hearing.
- Order of Custody to another relative or otherwise suitable person: The Court can only order this remedy with the consent of the Respondent. Upon such an Order, the Respondent can no longer be subject to an Order of Supervision or receive any type of services from ACS/CPS.
If the Respondent consents to giving custody to another person and the Court determines that it would be “in the best interests of the child” and “that the safety of the child will not be jeopardized if the Respondent is no longer under supervision or receiving services” the Court can grant an order of custody to another relative or other interested party.Permanency Hearings
O: Order of Protection (Family Offense Petition)Orders of Protections can be issued by the Family Court to protect people from domestic violence, harassment, and stalking.
- Beginning at eight (8) months after the Petition is filed against you, and every six (6) months thereafter, for so long as your child remains in Foster Care, the Court must hold a Permanency Planning Hearing to determine if your child will remain in Foster Care or be returned to you.
- Permanency Planning Hearings are just like they sound, it is a hearing at which the Court attempts to plan for the permanent placement of your child.
- The law and procedure behind these hearings is far too complex to explain on a website, however, in general the hearing is held so that the Court can determine the placement of the child for the next six (6) months.
- The hearings continue to be held until “permanency” is established.
- This would mean that the child has either been returned to your care and custody, a final order of custody is granted to another relative or interested party, or the child has been adopted by another person.
Orders of Protections are sometimes necessary to protect a person who is suffering abuse at the hands of a family member. Unfortunately, Orders of Protection are sometimes also used maliciously by one person to try to gain the upper hand in a custody proceeding or a divorce.
Simon & Milner, as experienced Family Law attorneys have participated in many Family Offense Proceedings. We are committed to fighting hard to get you an Order of Protection when it is necessary for your safety. By the same token, we are equally committed to vigorously defending you in a Family Offense Proceeding if you have been wrongfully accused of committing a Family Offense.
What Exactly is an Order of Protection
An Order of Protection is an Order issued by the Family Court which orders a specific person to obey certain conditions and/or stay a certain distance away from another person or persons. Violation of an Order of Protection is a serious crime under New York State Law, a violation of which can result in significant jail time.
Once you have an Order of Protection, you only need to call the Police to report a violation of the Order and the Police are obligated to arrest that person. It can be a very valuable tool in preventing domestic violence.Can I get an Order of Protection against anyone in Family Court?
No. In Family Court you may only seek Orders of Protection against the following persons:
- Persons to whom you are related by consanguinity (blood relative) or affinity (related by marriage or adoption).
- Person you are legally married to.
- Person you were formally married to.
- Persons with whom you have a child in common.
- Persons with whom you are or were in an intimate relationship.
- “Intimate Relationship” does not have to mean that you were dating or involved in any type of a sexual relationship. It is open to interpretation by the Court but could include close friends, roommates, neighbors, etc…
If you need an Order of Protection against any other person you must go to the Criminal Court to request one.How do I qualify for an Order of Protection
In order to receive an Order of Protection against someone you must prove that they committed a Family Offense. Under New York State law a Family Offense is defined as:
- Disorderly Conduct.
- Harassment in the 1st or 2nd degree.
- Aggravated Harassment in the 2nd degree.
- Menacing in the 2nd or 3rd degree.
- Reckless Endangerment in the 1st or 2nd degree.
- Assault in the 2nd or 3rd degree.
- Attempted Assault.
- Stalking in the 1st, 2nd, 3rd or 4th degree.
- Criminal Mischief.
How do I get an Order of Protection
Just like any other case in Family Court, an Order of Protection is requested by filing a Petition in the Family Court. It is essential that the Family Offense Petition is filled out properly otherwise there is a great likelihood you will be unsuccessful in your request for a Family Offense Petition. The Petition must be detailed and be very specific as to what happened and when it happened.
It is very important that you have an experienced Family Law Attorney prepare a Family Offense Petition for you. At Simon & Milner we will prepare the petition with you here in our office and accompany you to Family Court so that the Petition can be filed and the process started as quickly as possible.IF YOU FEEL YOUR LIFE IS IN IMMINENT DANGER, YOU SHOULD CALL 911 AND/OR GO TO THE FAMILY COURT FOR AN ORDER OF PROTECTION IMMEDIATELY.
In such a case, an attorney will be able to ask the Court to amend your petition at a later time.
In Family Court, when you file a Family Offense Petition you are immediately sent to go before a Judge who has the power to issue a Temporary Order of Protection on an immediate “ex parte” basis. Ex parte means without the other party being present.
If the allegations in your petition are severe enough the Court can grant you a Temporary Order of Protection immediately upon the filing of the Family Offense Petition. As soon as you file the Petition you will be sent to see a Judge who will review the Petition and determine if a Temporary Order of Protection is appropriate.
The Temporary Order of Protection will protect you between the time of your first court appearance and the time the other party is ordered to come to Court.
If you cannot prove the allegations in your petition the petition will be dismissed and the Temporary Order of Protection will be vacated (cancelled).How does a Family Offense case proceed?
The first appearance of both parties is called an arraignment. Just like in criminal court the Respondent will be advised of the allegations against him, offered the opportunity to hire a lawyer and will be asked to admit or deny the allegations. If there are children involved in the Family Offense allegations a law guardian will be assigned by the Court to represent the interests of the children.
If the Respondent denies the allegations the Court will set the matter down for a trial at which the commission of a Family Offense must be proven by a “preponderance of the evidence.”Are there different types of Orders of Protection?
Yes there are. The Court can issue Orders of Protection with varying degrees of restrictions based upon the nature and severity of the offense as well as the nature of the relationship between the parties.
There are 2 major categories of Orders of Protection:
Stay-away Order of Protection: A person is ordered to stay away from a specific person at their home, business, place of employment, school or wherever else they may be. In addition the person may also be ordered to refrain from any contact with that person whether by telephone, text message, face-book, letter, email, et
- These are issued for more serious Family Offenses.
- If you live with a person but a stay-away order of protection is issued against you, you are now excluded from your own residence. It doesn't matter if you do not have any other place to go.
Limited Order of Protection: A person is ordered to not commit acts of disorderly conduct, harassment, menacing, reckless endangerment, assault, or other offensive conduct against the person whom the Order of Protection is in favor of.
In addition to the above the Order of Protection may also contain additional provisions such as:
I was just excluded from my own home. What about my stuff?
- Refrain from conduct that interferes with an existing Child custody order.
- Cooperate in receiving treatment or psychiatric diagnosis.
- Abstain from drinking alcohol or using illicit drugs in the presence of the protected person.
- Refrain from using corporal punishment on your child.
- Refrain from acts that tend to make the home an improper place for a child to reside.
If the Court issues an Order directing you stay away from your own home, upon application by your attorney, the Court will issue an Order directing the Police Department to accompany you to your home at a specific day and time to retrieve your personal belongings.I have been ordered to stay away from my spouse but they have custody of my children. What do I do?
An experienced Family Law attorney will recognize this issue and ensure that this fact be brought to the attention of the Judge issuing the Order of Protection. So long as the Family Offense Allegations do not concern the children, the Court will usually modify the Order of Protection to create an exception for “contact to effectuate Supreme & Family Court orders of visitation.” Essentially, you will be permitted an exception to go to a location from which you have been excluded or to make phone calls to a person you are not allowed to for the sole purpose of arranging pick up and drop off of your children as per a Court order.I received a stay-away order against my spouse. What if I don't want them coming to my home even to pick up the children?
In such a case, your attorney can ask the Court to require that pick-up and drop off of your children occur at a local police precinct. In such a case, the parent will only be permitted an exception under the Order of Protection to have contact with you at the local police precinct for the purposes of picking up and dropping off the children.If the Court finds I committed a Family Offense what will happen to me?
A “finding” of a Family Offense will be entered against you. A “finding” is not a criminal conviction but there is a record that you were found to have committed a family offense. This “finding” could be used against you later in a proceeding related to custody or a child protective proceeding (even one not related to this Order of Protection).
In general, upon the finding of a Family Offense the Family Court will issue a Final Order of Protection. The Final Order can be a full stay-away order of protection or a limited order of protection. (For more information on types of Orders of Protection click here). The Court will also choose the duration of the Order of Protection, generally between 6 months and 2 years.
In addition to issuing the Order of Protection the Court has the power to do the following upon the finding of a Family Offense:
What if the Order of Protection is Violated?
- Place the Respondent on Probation.
- Order the Respondent to participate in a batterer's education program.
- Order the Respondent to participate in a substance abuse program.
- Order the Respondent to pay restitution to the Petitioner of up to $10,000.00.
- Order the payment of child support to the Petitioner (only where Petitioner and Respondent have children in common).
- Set an order of custody.
- Award counsel fees to the Respondent.
- Order the Respondent to reimburse Petitioner for medical bills that resulted from his or her commission of a family offense.
- Suspend the Respondent's firearms licenses.
If the Respondent violates the Order of Protection after it has been issued you can simply call the Police and ask that that person be arrested. They will be charged with criminal contempt and be forced to answer for their violation in the criminal court.
In the alternative you can file a violation petition in the Family Court alleging that the Respondent is in contempt of court for failure to obey the Order of Protection.
Obviously, for more immediate relief, you should simply dial 911 and report the violation.Any other Questions?
If you have any other questions or concerns regarding an Order of Protection that is not answered here please feel free to contact us and speak with an experienced Family Law Attorney!P: Paternity
Paternity petitions are filed to legally establish that a person is the father of a child. Establishing paternity is a required gateway to Family Court with respect to many issues. You cannot file for custody of a child unless you are the legal father. You cannot seek support from the father of a child unless you first prove that that person is in fact the legal father. Even if the name of the father is on the birth certificate so long as the parties were not married the father's name on the birth certificate is not necessarily proof that that person is the legal father. An Order of Filiation may still be necessary.
Upon proof by clear and convincing evidence that a person is the biological father of a child an Order of Filiation will be issued naming that person as the legal father for all purposes.Who can File Paternity Petitions?
In general paternity petitions are usually filed by either the father of a child seeking to establish that he is the legal father or by the mother of a child seeking to have the father named the legal father for purposes of child support.
In addition, paternity petitions can also be filed by the following persons:
Does everyone who wants to establish paternity need to file a Paternity Petition?
- The Child.
- The Child's guardian.
- Person legally responsible for the child.
- Department of Social Services if the child is receiving public assistance.
No, not at all.
If you were married to the mother at the time of the child's birth, one of the strongest presumptions under the law applies. That is “the presumption of legitimacy”, that a child born during a marriage is a child of that marriage. Absent evidence to the contrary, a child born during a marriage is presumed to be your child and no paternity proceeding would be necessary.
In addition, an unmarried person may sign an “Acknowledgement of Paternity” acknowledging that they are the father. As long as the Acknowledgement was in the proper format and is filed appropriately, the acknowledgement is just as valid as an Order of Filiation.
However, if the mother of the child was married to someone other than the biological father of the child at the time the child was born, a paternity petition MUST be filed regardless of whether or not the biological father signed an Acknowledgment of Paternity.How is Paternity Established?
Thanks to the advances of modern science, paternity proceedings are quite simple today. In most cases, if there is a dispute as to paternity the Court will simply order a DNA test. In such an instance the mother, father and child will all be ordered to go to a testing facility to determine paternity.S: PINS (Person in Need of Supervision)
PINS Petitions are petitions that are filed against a child. Unlike juvenile delinquency petitions, PINS petitions are USUALLY filed by a parent against their own child.
In actuality, the child's school district, a witness, as well as a victim of PINS activity may also file a petition but this is much rarer.
A PINS petition is filed when your child is “in need of supervision.” This is truly a petition of last resort and should only be used in the most extreme instances where you have completely lost control over your own child.
In order to file a PINS petition you must allege that your child:
- Is Habitually truant (skips school).
- Is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of the child's parents, guardian or lawful custodian.
- Possessed marijuana.
- Has engaged in Prostitution related offenses.
- Has loitered for the purpose of engaging in prostitution related offenses.
Before you can even file a PINS petition you must first file a PINS complaint with the local child protective agency and seek “diversion services.” Diversion services are services meant to help you and your child receive an immediate response to whatever crisis or problems are occurring in your family life at that time.
Diversion services can include finding temporary alternative housing for your child, family crisis counseling, substance abuse treatment, mental health treatment, anger management and alternative dispute resolution (mediation).
Only after diversion services fail may you then file a PINS petition. At that time, your child could be placed in a non-secure facility (such as a group home) pending the resolution of the PINS petition but ONLY IF there is a substantial likelihood that the child will not appear in court on the next date, there is no likelihood that the child and his family will benefit from any additional attempts at diversion and all available alternatives to detention (i.e. temporary residence with a relative) have been exhausted.
In order to prevail on a PINS petition you must prove the allegations in your petition beyond a reasonable doubt
. If you prevail against your child, your child will be labeled a “Person in Need of Supervision.” As a result, the Family Court could order one or more of the following:
- Simple discharge with a warning to the child not to repeat that behavior again.
- Conditional Discharge (basically sending the child home but with specific conditions they must follow).
- Placement of the child with a suitable relative (other than the parent who filed the Petition).
- Placement of the child with the Department of Social Services for an initial period of up to 1 year which can then be extended until the child is 18.
- Place the Respondent on probation.
- Order restitution.
- Community Service.
Although a PINS petition is intended to help your child, you are of course in reality also “prosecuting” your child in Court and seeking to potentially have your child placed on probation or ordered to live in a group home for some time. Filing a PINS petition is not something to be taken lightly and Simon & Milner cannot stress enough how important it is that you consult with an experienced family law attorney prior to making any decision regarding initiating a PINS petition. CONTACT US NOW FOR MORE INFO.V: Visitation and Custody
In addition to child support, custody and visitation is probably the area most generally associated with the Family Court. Everyone knows someone who has been through the Family Court system as a result of a dispute over custody or visitation of their child.
Simon & Milner understands how stressful and emotional a situation such as this can be and we vow to be as understanding and helpful as possible during your time of need.
If you have a child in common with someone else and are no longer in a relationship each party remains entitled to contact with that child. The nature and degree of that contact will depend upon your individual situation but any parent of a child has the absolute right to apply to the Family Court for custody or visitation of that child unless their parental rights have previously been terminated. (For an explanation of termination of parental rights click here.)Who may file a petition for custody or visitation?
In general, only a parent may file a petition for custody. (For more information on establishing paternity click here) There are provisions in the law that allow for others to file for custody under “extraordinary circumstances” or if the parents have died. For more information on filing for custody as a non-parent you should contact an experienced family law attorney at Simon & Milner.
Visitation Petitions can be filed be parents, grandparents, siblings, step-siblings and step-parents.What is the difference between Custody and visitation?
Visitation is simply a legal right to spend time with your child. Custody means that you have control over the child and any important medical, educational, and other decisions affecting the child's life.What is joint custody?
Joint custody means that the parents have agreed to share the decision making authority over the child. However, even though parents have joint custody, one of the parents must still be the “primary custodial parent.”How does the Court determine who should get custody?
The simple answer is that the Court awards custody and visitation time in accordance with what would be in the “best interests of the children.” Although the standard is only five words long, in reality, the factors that go into determining what is in the “best interests of the children” is quite complicated.
There is no standard custody/visitation case. Simon & Milner understands this and treats each custody/visitation case like the unique set of facts that it is.
If you would like a realistic assessment of your custody/visitation case you should contact an experienced attorney at Simon & Milner today for a free consultation.How does a custody/visitation case proceed?Initial Court Appearance
Subsequent Court Appearances
- Before proceeding the Court will appoint an attorney known as a law guardian to represent the interests of the children.
- At the initial court appearance the Court will usually set some type of temporary order of custody and visitation.
- Very often the temporary order will be based upon which parent may currently have “de facto” custody (i.e. possession of the child).
- The order can also be based upon a host of other factors such as allegations in the petition, drug test results, general appearance of the parties, or simply a judgment call by the Judge.
- If there is a dispute as to substantial facts the Court may hold a hearing to determine a temporary order of custody or visitation.
- It is important to keep in mind that a temporary order of custody has no effect on the ultimate outcome of the proceeding; it is merely a temporary decision by the Judge until the case has been fully decided.
- At subsequent Court appearances the Court will attempt to encourage the parties to settle. Most, but not all custody and visitation cases will settle. The simple fact is that parents and children are usually happier when everyone can agree on a solution rather than fighting it out in Court.
- If the case does not appear to be likely to settle the Court will set the matter down for trial.
- However, prior to trial the Court may wish to do some or all of the following:
- Conduct a home study investigation by CPS/ACS of both parent's homes
- Appoint a forensic evaluator
- A forensic evaluator will conduct a psychiatric interview with each child, both parents, and any other persons living with either parent and make their own recommendation to the Court (which the Court may or may not follow) regarding custody and/or visitation.
Order Drug Testing
Miscellaneous additional requirements for the parents
- Depending on the Court, the Judge may ask you to submit to an “instant drug test” which may be conducted in a facility located within the court house.
- There are a host of other things that the Court can order parents involved in a custody or visitation dispute to do that are far too numerous to list here.
Does my Child's Opinion Matter? Will my child have to testify?
- Most custody/visitation cases settle before trial.
- However, if there is a trial, the issues of custody and visitation will be decided by the Judge based upon what is “in the best interests of the children.”
- Both the Petitioner, Respondent, and the children (through the law guardian) participate in the trial and have the right to call witnesses and cross-examine the other witnesses.
- At a trial the Court will consider countless factors before making a custody decision. Some of the most important factors are as follows:
- Child's school records (attendance, behavior, etc…).
- Work schedules of each parent.
- Home environment and neighborhood each parent could provide.
- History of past parenting.
- Testimony from a therapist or other mental health professional of the child.
- Activities the parent is engaged in with the child.
- Presence or lack thereof of extended family.
- Domestic violence.
- Prior agreements with respect to custody of the children at issue.
As a part of almost any custody trial the Family Court Judge will conduct what is known as a “Lincoln Hearing.” A “Lincoln Hearing” is essentially your child's opportunity to testify. However, a “Lincoln Hearing” is held in the privacy of the Judge's chambers and neither parent nor the parent's attorneys are allowed to be present. The only people present for a “Lincoln Hearing” are the Judge, your child, the Law Guardian and a Court Reporter.
Your child's age will determine how much of an effect his opinion will have on the Judge making the determination. Once your child attains the age of about 12 the Judge will take the wishes of the child quite seriously and the Judge may even make a decision contrary to what he believes is in the child's best interests if he feels that the child making the decision is mature enough to understand the consequences of what he is doing. Ultimately your individual child's level of maturity and understanding of what is transpiring will determine how much weight is given to your child's opinion. Once your child is 16, it is almost a certainty that the child's opinion will be the determining factor.
Even if your child is young, their opinion will still be taken into consideration by the Judge. The amount of weight accorded to your child's opinion will be based upon your individual child's level of maturity and understanding of the process as well as the rationale behind your child's decision. For example, a 10 year old child who wants to live with their Dad full time because Dad bought a new puppy will have their opinion granted far less weight than the 10 year old who wants to live with Dad because Dad is closer to his school and friends and the child thinks Dad does a better job helping him with his homework.If I don't get custody how much Visitation with my Children, should I expect?
There is no simple answer to this question. Your visitation schedule will depend on the unique circumstances of your case as well as the unique circumstances of your child's schedule. In addition the Court will need to take into account the work schedules of both parents as well as the distance between the homes of the two (2) parents in crafting an Order of Visitation.
Can Custody be Changed?
Yes, certainly. In order to modify custody, you must file a Petition to Modify an Order of Custody/Visitation. In order to be granted a modification the Petitioner must demonstrate a “substantial change in circumstances since the prior order or agreement.” In addition, even if there is a “substantial change in circumstances” the Petitioner must still demonstrate that the modification would be “in the best interests of the children.”
Although certainly not a comprehensive list, some of the major factors courts accept as a “substantial change in circumstances” are as follows:Interference with the relationship between the child and the non-custodial parent (also known as parental alienation).
• If the custodial parent is attempting to keep you away from your child for no good reason or is “brainwashing” your child to dislike you that is certainly a reason to ask the Court to change custody. No parent has the right to “alienate” a child from the other parent.Denial of Visitation with non-custodial parent
- Very similar to parental alienation
- Parents have a right to visit with their children and if the custodial parent is preventing the non-custodial parent from enjoying that right very often the only remedy is to change custody to the parent who will follow the order of custody and visitation.
Custodial parent is now less fit as a parent
- This is clearly a very broad category. As an example, the custodial parent could be suffering from a substance abuse problem, psychiatric issue, or simply be acting negligently towards the children. Any of these would be sufficient reasons to ask the court to modify the order of custody.
Preference of a child if sufficiently mature
- For example, if at the time a child was 8 years old, an order of custody was entered granting residential custody to the mother but now, at age 15 the child states that he wants to move in with his father there would be sufficient reason to ask the Court to modify an order of custody.
Can the Custodial Parent move far away if they Wanted?
In order for a parent to properly relocate that parent must file a petition to modify the order of custody with the Family Court. As with any other custody or visitation decision the Court will either permit or deny the relocation request based upon the “best interests of the children.”
Some of the major factors that the Court will consider in determining whether or not to approve a relocation request are:
Good faith of parents in requesting or opposing the move
- The Court is unlikely to approve a parent moving halfway across the Country with the children simply because the weather is nicer or they are looking for a change of scenery. However, if the parent has been offered a unique job opportunity or something else of that nature the Court will be more inclined to honor the relocation request.
Child's respective attachments to each parent
What if the Custodial Parent ignores the Order of Visitation and Refuses to Allow me to Visit my Children?
- If the child is very close to both parents the Court will be much less likely to grant a relocation request than if the child is much closer to the parent who is seeking to relocate the child.
- Possibility of devising a visitation schedule that will preserve a meaningful parent-child relationship.
- Change in lifestyle of the child if the move is permitted.
- For example, will the child be moving to a safer neighborhood or to a better school district.
- Effect of relocation on the child's relationship with extended family members.
The remedy for such a refusal is to file a Petition for Violation of an Order of Custody/Visitation. If you can demonstrate that the parent is willfully disregarding the Order of Custody/Visitation the Court has the power to hold that parent in contempt of Court.
As a result of such a finding the Court has many potential remedies including but not limited to ordering “make up” visitation, changing the visitation/custody order, sanctions (fines) or incarceration for up to six (6) months.
The Court is unlikely to hold a parent in contempt for a single isolated violation. For instance, if the custodial parent takes the child away for the weekend instead of providing you with your court ordered visitation the Court is unlikely to take any action if that was the first and only time such an incident occurred. However, if something like that becomes a regular occurrence, that would in fact be considered a violation and the parent could certainly be held in contempt of court.
In addition, if there is simply a disagreement regarding the interpretation of the Order the Court is unlikely to hold the incorrect parent in contempt, instead, the Court would simply instruct the parents as to the proper interpretation of the Order and instruct the parents not to have this same dispute again.Need Additional Information?
Simon & Milner understands how stressful and emotional a custody/visitation case can be and we are here to answer all of your questions. If you have additional questions that weren't answered here please feel free to call an experienced Family Law attorney at Simon & Milner who will be happy to provide you with a Free Consultation!