by Robert E. Hornberger, Esq | Nov 25, 2014
As a divorce lawyer on Long Island, you might be surprised at the myriad issues we have to consider when drafting Divorce, Settlement and Separation Agreements for our Clients. One of these includes the possibility of abduction of a child by a former spouse.
Many people remember the Sally Field movie “Not Without My Daughter”, where a family traveled to Iran under the pretense of visiting the husband’s family, only to find out they would never be permitted to return to the United States without his consent. Now imagine your ex-spouse taking your child on an international vacation, and you being told two weeks later that your spouse and child intend to reside in Italy or Portugal for the rest of their lives. What would you do? Would you even know where to begin or who to seek assistance from? As divorce lawyers on Long Island, these are the types of things we think about when drafting Settlement or Separation Agreements for couples seeking a divorce.
Are There Any Preventative Measures?
When drafting a Stipulation of Settlement or Separation Agreement in a Long Island, NY divorce, the issue of passports and international travel should be addressed. As of 2002, the consent of both parents is required before the state may issue a passport for a minor child under the age of 14. Therefore, if your child does not yet have a passport as of the date of your stipulation or separation agreement and he or she is under 14, your spouse will need to show he or she has sole custody of the child or your written consent to the issuance of the passport for the child.
If you have severe concerns your spouse may abduct the child, it is obviously in your best interest to withhold this consent. However, many settlement or separation agreements contain language giving both parents the authority to apply for a passport on behalf of the child. Be mindful of such language if you have these concerns.
Put Your Fears in Writing
United States law enforcement does not have the power to prevent a parent with a valid United States passport from traveling out of the country with his or her child who also has a valid United States passport. Therefore, if you wish to prevent your spouse from applying for a passport for your child, it would be important to discuss with your Long Island divorce attorney language representing that fact.
Your agreement may include a statement indicating that the child may only be permitted to travel internationally upon the written consent of both parents, or that the passport may not be obtained unless both parents are present at its issuance. You may also ask your attorney to include a provision which completely prohibits international travel, or that the courts hold the child’s passport. While none of these are foolproof methods, they will help you combat the threat of international abduction as you will have a larger degree of control over your child’s international travel.
Get the Full Travel Itinerary for Your Child
On the other hand, if you do not wish to prohibit your child’s international travel either at all or completely, you may ask that your agreement include language requiring your spouse to provide you with an itinerary of any trips he or she may have planned. For example, your Long Island divorce lawyer may include statements which require your spouse to provide you with flight information, including times, dates, and numbers, the location and phone number of all accommodations, and the time period they will be staying in each location if further travel is planned. The international travel may be conditioned upon your receipt of this information. This permits you to be aware of your child’s whereabouts at all times while overseas, and to alert you if something is not as it was presented.
Children’s Passport Issuance Alert Program
Another key preventative measure is provided by the government itself. The United States Department of State has created the “Children’s Passport Issuance Alert Program.” Parents have the option to enroll their child, so long as he or she is under 18 years old, in this program. Once enrolled, you will be notified upon the submission of a United States passport application on behalf of the child. If your child already has a United States passport, enrollment will serve to notify you if there has been an application to renew the passport. The completed form should be submitted to PreventAbduction@state.gov.
See this page to learn everything you need to know about Child Custody and Visitation on Long Island.
Compassionate Long Island Divorce Attorney Has Answers to Child Abduction Concerns
If you have concerns about your child traveling out of the country with your ex-spouse, you should contact an experienced Long Island divorce attorney immediately. The experienced and compassionate divorce attorneys at Robert E. Hornberger, Esq. P.C. have helped hundreds of Long Island couples protect their rights and their children. Contact us today at 631-923-1910 to schedule your free, no-obligation consultation with an experienced Long Island divorce attorney.
by Robert E. Hornberger, Esq | Nov 4, 2014
As a Long Island divorce attorney, I’ve seen that when planning a wedding, the last thing couples think of is how the location matters if they were to get divorced. Some couples may get married in New York State for the luxury of the Hamptons or the beautiful scenery upstate, but not live in New York. On the other hand, couples who have resided their entire lives in New York may decide to move out of state after their marriage. Years later, while residing in Massachusetts or Florida, that same couple may have a child and years after that, that same couple may decide that a divorce is the best option for them. While New York will have jurisdiction over the couple’s marital status because the marriage was performed in New York, that is not the only issue present in a divorce matter.
When you are discussing your pending divorce with your Long Island Divorce Attorney, it is important to inform him or her whether or not you have children with your partner, and more importantly where these children reside if they do not reside within New York State. Section 76 of New York’s Domestic Relations Law provides that New York may only make a determination of child custody if New York is the child’s home state on the date the action is commenced or “was the home state of the child within six months before the commencement of the proceeding and the child is absent from th[e] state but a parent or person acting as a parent continues to live in the state.”
Additionally, the Domestic Relations Law provides that New York may be able to exercise jurisdiction over an unemancipated child if no other state has jurisdiction over the child, or the home state of the child declines to exercise such jurisdiction upon the belief that New York is the more appropriate forum. If the child’s home state declines to exercise jurisdiction, such refusal must be grounded in the belief that the child and the child’s parents have a significant connection with New York aside from their physical presence, there must be substantial evidence in the state concerning the child’s care, protection, and personal relationships, and all courts which could exercise jurisdiction over the child have declined to do so.
What Does “Home State” Mean?
A common question parents have for their Long Island Divorce Attorney is “What does it mean for New York to be my child’s home state?” Thankfully, the New York legislature realized parents would have this question, and set forth an exact definition in the statute. A child’s home state is the state in which he or she resided with a parent or person acting as a parent for “at least six consecutive months immediately before the commencement of the child custody proceeding.” Domestic Relations Law § 75-a(7). Because the statute is very specific, it is clear that it is not sufficient that your child resided in New York sporadically throughout his or her life for a period totaling six months. But what about your three month old? The home state of a child under six months old is “the state in which the child lived from birth with any of the persons mentioned.” Id.
Although the statute permits New York to exercise jurisdiction over a child who resides within the state on the date of the commencement of the proceeding, Valentin v. Valentin demonstrates how the Second Department is inclined to look to where the child resided in the months immediately preceding the filing. Valentin v. Valentin, 167 A.D.2d 390 (2d Dep’t 1990). In that instance, the child resided in California with the mother “from about November 1987 to August 1988 when the child was taken to New York by the [] husband.” Id. at 391. The husband thereafter filed for divorce and demand for child custody in New York, alleging the New York courts could resolve issues of custody because the child was residing in the state on the commencement date. However, because the child had resided in California for nine months prior, California was deemed the child’s home state even though the child was now in New York. In other words, “New York cannot assume jurisdiction over [] custody [issues] pursuant to Domestic Relations Law §75-d(1)(b), [] if the child has a ‘home state’ other than New York. Id.
What Does This Mean for Me?
As always, your Long Island Divorce Attorney will provide you with the best advice in this area. But as long as you are aware that the most important thing for getting your child custody case into court is where your child has resided for the last six months, you are on a good path to begin.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Long Island Divorce Attorney Can Answer Your Questions About Child Custody
Have questions about Child Custody on Long Island? The compassionate and experienced Long Island Divorce Attorneys at Robert E. Hornberger, Esq., PC are here to help. We have a long and successful history of representing couples and individuals in Nassau and Suffolk County in their Child Support and Custody matters. Contact us at 631-923-1910 for a complimentary divorce consultation, or fill out the form on this page and we’ll get right back to you.
by Robert E. Hornberger, Esq | Jul 1, 2014
The final school bell has rung in Long Island elementary and high schools, you’re children are going to be home for the next 2-1/2 months and now you have to figure out how your divorce and child custody agreements pertain to summer vacations.
Summer days get longer, people are generally happier (likely due to that extended sunlight), and children get to play outside until sunset.
If you are going through, or recently went through a divorce, the onset of your children’s summer vacation can cause you anxiety rather than relaxation. Because your divorce agreement likely sets forth a child custody arrangement, you may be wondering how these procedures will affect the children’s summer vacation. Naturally, you would like to take your vacation time when you can spend meaningful time with your children, but did you put that in your child custody agreement? Are you able to have your children with you for an uninterrupted week or two so you can maybe go away with them. Or, even if you can’t afford to stay out of town, can you just get some uninterrupted time when you can take day trips without having to worry about having them back in time for your ex’s visitation?
How Can We Avoid Problems With Summer Vacation and Custody?
If you are currently going through a divorce, it is important to discuss this matter with your divorce attorney. If the divorce agreement is not yet finalized, you and your partner can come to a mutual agreement regarding the children’s summer vacations. The agreement does not have to be specific to summer, it can be applicable to any school vacations the children may have.
At this point, you may agree that during the summer, the typical yearly custody schedule will be dispensed with. For example, if there are 10 or 12 weeks of summer, you and your partner could agree that you will get the children for six weeks, and your partner for the other six.
It would be wise to include the dates in the divorce agreement, this way, when the time comes, there is no room for error or alleging a miscommunication. Furthermore, having advance notice of the summer dates during which you will have custody of your children will allow you to schedule your own work vacation and any family vacation time around those dates.
On the other hand, you and your partner may decide to simply allot “vacation time” in the divorce and child custody agreements. In this instance, both you and your partner would be entitled to a specified amount of time per year deemed “vacation time.” The parent, at any point that the children are off of school, may then make use of this allotted time for trips or other quality events such as weekends away. If you and your partner do decide to allot vacation time, you should also make note in the divorce agreement if you do not want this time used on certain occasions, such as holidays or birthdays.
Do I Need Permission from My Ex-Spouse to Travel Out of State with Our Children?
There is no provision of New York’s Domestic Relations Law (which governs marital relationships and divorces), that imposes a duty on either parent to notify their ex-spouse if they plan to travel out of state with the children during scheduled visitation time. However, although there is no requirement placed on you by the State of New York to inform your ex-spouse if you plan a trip to Disney World, one may be created upon you by your specific divorce agreement.
As always, your divorce agreement controls the interactions between you and your ex-spouse and can expose you to liability for failure to comply with its terms. Even if your divorce agreement does not impose such an obligation, informing your ex-spouse of out-of-state travel plans will help foster a civilized relationship between you and make future interactions easier. Do not forget, if you have children together you will likely be in contact with each other for the rest of your lives, it is important to treat each other with respect from the beginning.
What Does This Mean For Me?
If your divorce is not yet finalized, do not forget to discuss the matter of vacation time with your Long Island divorce attorney. Having dealt with these issues numerous times, your divorce attorney will likely have experience with a number of creative, and practical solutions.
If, on the other hand, your divorce agreement is already finalized and these provisions are not included, or the current child custody provisions make vacation time impossible, be sure to discuss any options you have for modifying the agreement with your divorce attorney as this may require court involvement.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Long Island Divorce Attorneys are Here to Help
The experienced and compassionate Long Island divorce attorneys at Hornberger Verbitsky, P.C. have dealt with all sorts of Divorce and Child Custody issues, both before agreements are signed and modifying them after. If you have questions about your divorce agreement or child custody arrangements, give us a call at 631-923-1910 or fill out the short form on this page and we’ll arrange for a convenient time for you meet us in a free initial consultation to discuss your issues.
by Robert E. Hornberger, Esq | Jun 10, 2014
Think back to your days in elementary or middle school. Whether you went to school on Long Island, NY or not, aside from your friends, what likely comes to mind are signed permission slips for field trips, leaving school early for doctors’ appointments, and even (maybe) the dreaded calls home from the principal’s office. These things are exciting and scary for school age children, and those emotions are intensified if the child’s parents are divorced.
Naturally, while going through a divorce, the issue of whether you or your partner will sign your children’s field trip permission slips is probably not at the forefront of things you feel need to be resolved, but it is important you discuss such matters and include it in your divorce settlement so disputes do not arise later when they can negatively affect your child.
What Can We Do to Avoid Conflicts Over our Children’s Education Going Forward?
First and foremost, it is important that you sit down with your divorce attorney, either with or without your partner, to ensure that you are aware of all the possible challenges that lie ahead. The following, although not exclusive or comprehensive, are a few examples of issues that may arise in regards to the education of your children. They will probably suggest other ideas along the same lines.
- Who will sign your children’s permission slips? This is especially important if you have grade school age children, as they are most likely to go on field trips requiring permission slips. Will it be the custodial parent? Does the non-custodial parent have any say? If you agree as to how this will be handled in your divorce agreement, it will avoid future stress when your children come home with a permission slip for the planetarium.
- Who will take the children to and from school? This may not be relevant to you and your partner if your residences are not within close distance, but at times, one parent will move out of the marital residence only to live a few blocks away. Under these circumstances, both parents may want to spend the extra time with their children by taking them to school. This can be arranged simply by noting in the divorce agreement that transportation to and from school will be the responsibility of the custodial parent or the non-custodial parent when the children have their visits. On the other hand, you may wish to agree that the custodial parent will transport the children when they are visiting the non-custodial parent, and vice versa. Because no two situations are alike, this is a completely personal decision.
- What school district will the children attend? If you and your ex-spouse live close to each other, but not in the same school district, this is an extremely important decision. While your children likely will not want to switch schools, if the custodial parent is forced to relocate out of the marital residence, this may be necessary. Be sure to discuss the laws relevant to residency for enrollment in a specific school district with your divorce attorney.
- If the children need to leave school early, who will be called? Again, this is something that should be discussed with your partner and noted in the divorce agreement. Emergencies arise when children are at school, especially when they are young, and you do not want your child to be caught in the middle while they are sick and waiting to be taken home. Decide beforehand to whom the school nurse will address her/his call when your child comes down with a stomach virus on a Tuesday at 1pm.
- Once the children get older, who will the school contact regarding placement in special AP or college credit courses? Again, this is something you may not be thinking of while in the midst of the divorce process. However, seven years down the line when your child comes home requesting to be enrolled in the $300 a semester college English course, you need to know if you can make this decision on your own or if you need to consult your ex-spouse.
A divorce is a difficult time in the lives of each and every family member, not just the couple splitting up. It is commonplace that seemingly insignificant things are overlooked while you and your partner are debating who gets to keep the marital residence and who gets physical custody of your children. While the aforementioned child issues are important matters, they may not be relevant your individual situation or they may be critical issues. Be sure to discuss with your divorce attorney other possible disagreements that may arise surrounding your children’s education so you will know the solution before the problem arises,
Need Help? Contact the Compassionate Divorce Lawyers at Hornberger Verbitsky, P.C.
The highly trained Long Island divorce attorneys at Robert E. Hornberger, Esq., PC are very experienced in the many issues that may arise with regard to child custody and other matters related to child-rearing after your divorce. These compassionate and caring divorce lawyers have proven time and again that creative solutions to complex child-related issues are often the best tool to keeping both parents and child happy and healthy. For more information or a free consultation, please contact us at 631-923-1910. You’ll be glad you did.
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by Robert E. Hornberger, Esq | Jun 3, 2014
What is Parental Alienation & Are You a Victim?
All too often in divorces on Long Island, one spouse attempts to influence the child or children of the marriage against the other spouse/parent. Often, this is a result of anger and resentment at the former spouse, who then tries to use the children against the other out of revenge. While divorce is often an emotionally charged event, there is no excuse for using your innocent children as weapons or pawns in your own childish vendetta against a person you once loved.
These situations, which as a practicing Long Island divorce attorney, we see too often, are referred to in legal circles as “Parental Alienation”, and can include things such as:
• Speaking badly about you directly to the children
• Speaking badly about you to relatives who in turn relay these messages to your child
• Making allegations of physical or emotional abuse against you
• Prohibiting the child from speaking about you or anything concerning you in a positive way
It is not uncommon for those involved in a romantic relationship to act out of emotion, and at times those negative emotions toward the former spouse can be purposely or inadvertently directed at the children.
Even if you have no direct knowledge of the actions of your former spouse, you may notice that your child is unable to maintain as close of a loving relationship with you as you had prior to your divorce. This could be a sign of Parental Alienation.
Long Island, NY Laws Affecting Parental Alienation?
If you feel that your situation may potentially be an instance of parental alienation, you should immediately contact your divorce lawyer for advice. This is a complex area of law but there is a possibility that your case may rest upon Section 241 of New York’s Domestic Relations Law. This statute references only the non-custodial parent in instances where the custodial parent interferes with the relationship, but does not discuss what the result may be if you feel the non-custodial parent is interfering with your relationship with your child.
You Could Lose Your Child Support & Maintenance
Under Section 241, a non-custodial parent is permitted to suspend child support or maintenance payments if a judge finds that the custodial parent receiving these payments wrongfully interfered with or withheld the court ordered visitation of the non-custodial parent. Additionally, if the judge determines such is warranted, he may order a complete cancellation of the child support or maintenance payments. Parental alienation however cannot be used as a defense by the non-custodial parent for failure to pay child support.
The non-custodial parent may only suspend payments if it is so ordered by a judge in court. If you feel you are the victim of parental alienation, be sure to discuss your legal options with your divorce attorney, who will inevitably be able to give you the best guidance.
How to Prevent Yourself from Committing Parental Alienation?
Assuming that you love your children and do not want to do them any emotional harm, the worst part about parental alienation is that you may not even recognize the fact that you are doing it. If you fear you may be doing this unconsciously, it may be beneficial to you to focus on supporting your child’s relationship with the non-custodial parent. We’re not saying you have to sing your former spouse’s praises every minute, but you could encourage the children to spend more time with your former spouse doing activities they both enjoy.
You May Note Even Realize You’re Doing It
It is important that you be aware of what you say about your ex and be careful not to make stray remarks about your former spouse that have the potential to be interpreted negatively by a child. A common example of such a statement might be instructing your child to ask your former spouse to pay for something for the child because he or she has more money. While to you that is a seemingly harmless statement of fact, a child will see such a sentence as requiring him or her to make a choice between his two parents.
If You’re Doing It On Purpose; Stop
On the opposite end of the spectrum are the parents who actively and consciously try to destroy the relationship their former spouse has with his or her children. This type of alienation stems from extreme anger on behalf of the parent directed toward the other. The parent may seek revenge for an affair or other betrayal of trust (whether real or imagined), and use the child’s love as the bargaining chip. Most important to preventing this type of alienation is to recognize it before the child comes to favor one parent over the other. Afterward, it will be necessary to work on the relationship between the child and the former spouse in order to rebuild the trust and emotion.
Are You the Victim of Parental Alienation? We Can Help
If you feel you are a victim of Parental Alienation, you should take action to protect your children and their relationship with you. Give the experienced and compassionate Divorce Attorneys at Hornberger Verbitsky, P.C. a call today at 631-923-1910 to schedule a free consultation to discuss your case and what you can do about it. We’re here to help.
by Robert E. Hornberger, Esq | May 27, 2014
When we consider matters of Child Custody on Long Island, we usually think that one parent will have physical custody of all the children and the other parent will have Visitation rights. However, in reality, children are separated from their siblings in a divorce more often than you might think. This can occur for a number of reasons, including, but not limited to, one child’s desire to live with a different parent than the other. In these cases, Custody of one child may be awarded to the mother and Custody of another child may be awarded to the father.
If you are contemplating a divorce, or have recently begun divorce proceedings, you will have to come to agreement with your spouse over matters of child custody. Among considerations that may have crossed your mind may be not only your right to see your children if you are not awarded physical custody, but also perhaps the rights of your parents or your siblings to see their grandchildren or niece or nephew. What you may not have considered, until now, are the rights of your children to spend time with their siblings if they are living separately after your divorce.
What is the Governing Law in New York Regarding Familial Visitation Rights?
As most issues that arise during the divorce process, the issue of a sibling’s right of visitation is governed by Section 71 of New York’s Domestic Relations Law. Under this section, a child’s brother or sister (or the parent or guardian of the brother or sister if the individual is a minor) can petition the court for visitation rights. As in all cases involving children, the court decides and directs any rights the sibling or siblings may have to visitation in accordance with what it believes are in the best interest of the child in question.
Because this is a sensitive, and perhaps emotional decision that may arise during the divorce, if at all possible it should be made between you and your partner with the assistance of your respective divorce attorneys, ahead of time. However, because this is such an emotionally charged issue that often leads to hurt feelings, it may be difficult to come to agreement on these issues outside of court and you may wind up litigating them in front of a judge.
The United States Supreme Court in Troxel v. Granville provided guidance for the New York State legislature in creating its grandparent visitation statute, which is also applicable to siblings. Under this statute, the court must determine if the individual filing the petition has standing, and then if this is satisfied, the court will determine if visitation is in the best interest of the child. Generally, these visitation statutes require some type of legal, biological, or familial relationship between the party filing the petition and the child in question. In addition to looking into the relationship between the child and the party who is seeking visitation, the court will look into the specific circumstances of the child’s environment and note if the individual was aware of negligent or negative treatment of the child and failed to act, as well as the relationship between the party seeking visitation and the parent with whom the child currently resides. Courts are generally reluctant to permit visitation rights if it feels that the person seeking those rights may not be a positive influence in the child’s life.
Does the Court Take My View as a Parent into Consideration At All?
One would like to believe that arguing between family members about child visitation is a rare occurrence. However, if you find yourself faced with this situation, remember that as your child’s parent, you have a fundamental right to raise him or her as you see fit, and this includes affording you a presumption that if you are denying visitation rights to certain individuals, you are doing so because you believe that it is in the best interests of your child. But of course, as your divorce attorney will likely inform you, your desires are not the final answer, and the court will require visitation if its finds this would be in the child’s best interest.
While you or your spouse may harbor negative feelings toward one another, it is not as likely that your child harbors negatives feelings toward his or her siblings. As most of these posts have noted, when a child’s parents are going through a divorce the child needs certain constants to remain in his or her life, and his or her siblings are no doubt one of those things.
Questions About Child Custody and Visitation on Long Island?
See this page to learn everything you need to know about Child Custody and Visitation on Long Island.
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Need Help with Child Custody or Visitation in Your Long Island Divorce?
We’re here to help. The experienced and compassionate Long Island divorce attorneys and Child Custody and Visitation experts at Hornberger Verbitsky, P.C. can help you navigate the murky waters of your divorce, child custody and visitation issues in Nassau and Suffolk County courts. Give us a call at 631-923-1910 for a complimentary consultation in our conveniently located offices in Melville, NY where we can get to know each other and discuss the specifics of your situation and the best way to resolve them. If you prefer, fill out the short form on this page and we’ll call you.
by Robert E. Hornberger, Esq | Apr 29, 2014
If you are thinking about, currently in the process of, or have recently gone through a divorce on Long Island and have children, it is inevitable that both you and your partner have or will discuss child custody arrangements. Coming to an agreement that makes both you and your partner 100 percent happy will likely be rare, but if you are able to compromise with each other, you will both most likely get the majority of that which you desire.
What is Child Custody?
First, it is important that your divorce attorney makes you aware that there are two different types of custody involved:
- Legal Custody: gives the parent the authority to make legal decisions for the child(ren)
- Physical Custody: determines where the child or children will live.
Mothers Not Automatically Awarded Child Custody
While many people believe that Nassau County and Suffolk County courts will favor the mother over the father when determining the custody arrangement, this is not the case. Rather, the court looks at what situation would be in the best interests of the child or children. Factors taken into consideration are:
- which parent provided the child or children with the majority of his or her care
- the individual health of the parent
- the individual work schedule of each parent
- the child or children’s relationship with his or her other family members
Keep in mind that this is not an exhaustive list, and therefore it is important to discuss with your divorce attorney any specific circumstances that you believe may effect the child custody arrangement.
General Visitation Rights
While joint custody is becoming more and more common, there are still instances where one parent will be awarded sole custody of the child or children. In these cases, the non-custodial parent will likely be awarded visitation rights. Visitation rights do not come in a one size-fits-all medium, and the type of visitation granted depends on the individual circumstances.
Supervised Visitation
If there has been an instance of domestic violence or doubts about a child’s safety when with a parent, the court may order supervised visitation where it will appoint another adult to supervise the parent while he or she is visiting with the children. Additionally, if there are concerns of the actual meeting between the parents for exchanging the child or children, the court can appoint the interaction to be done at a neutral location, or direct a third party to be present when the change of custody for the visitation is taking place.
Holidays Are Important, So Are There Alterations to the Custody Agreement for Special Occasions?
Holidays, especially the winter holiday season, are a stressful time for most American families – where to go, what to eat, what to wear, and what gifts to purchase. However, if you are recently divorced, or are facing the first holiday season after a divorce, the thought of not spending the holidays with your children can perhaps be the most stressful thought of all. There are, however, a variety of arrangements you and your partner can enter into to help avoid the last minute stress of where your children will spend Christmas or Thanksgiving or any other holiday.
Suggested Holiday Arrangements
Because every family is different, the following are simply suggestions, and not meant to be a set of rules that you must follow. You and your spouse are free to create any arrangement which works best for the both of you. First, you may simply follow the 12-month calendar and agree that you will have the children for one holiday, and your partner will have the children for the next holiday. Or, if you want to ensure you each get to spend Christmas with the child, you can rotate years, i.e., the children will spend Christmas with you one year and then your spouse the next. You may decide to enter into a more personalized agreement; perhaps your favorite holiday is Halloween, while you are indifferent toward Christmas, and your spouse enjoys Thanksgiving. You can agree that you will each have the children on the days that mean the most to you. Additionally, if you cannot come to an agreement and you both are steadfast on seeing the children on every holiday, it may be the best idea for you to agree to split the day evenly. For example, the child will be with one parent from the morning through the early afternoon, and then spend the rest of the day with the other parent.
As always, do not forget that child custody arguments and battles often impact the children most. Whenever possible, try to have such discussions outside the presence of your children, and remember, that the happiness of your children should be the most important consideration.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation
Need Help With Your Child Custody Agreement on Long Island?
The divorce and family law attorneys at Hornberger Verbitsky, P.C. are adept at negotiating Child Custody agreements that are fair and equitable for both parents. Give us a call at 631-923-1910 for a free consultation regarding your child custody issues.
by Robert E. Hornberger, Esq | Apr 15, 2014
When granted your divorce on Long Island, either you or your partner will be awarded physical custody of your children. Given that the normal American household moves every five years, it is likely at some point in the future that the party who was awarded physical custody, the Custodial Parent, will desire to relocate and take the children with him or her.
What is the Governing Law on Long Island, NY?
The landmark case of Tropea v. Tropea focused on this issue and provided basic guidelines for what Nassau County and Suffolk County courts will look for when presented with the issue of the relocation of the custodial parent.
In Tropea, the parties’ judgment of divorce granted sole physical custody of the children to their mother, and Visitation rights to the father at least three days a week and on holidays. The agreement further prevented either parent from relocating outside of the county in which they currently resided without judicial approval.
A year after the judgment of divorce, the mother sought permission from the court to relocate two and a half hours outside of the marital county due to her plans to remarry. Because of the extended distance, the proposed residence of the mother and children would interfere with the father’s rights to mid-week visitation with his children. Naturally, the father contested the mother’s petition for relocation.
Prior to the court’s decision in Tropea, to determine relocation of a custodial parent courts used a three-step analysis that required inquiry into whether the relocation would deprive the non-custodial parent of “regular and meaningful access to the child.” If the court concluded that such interference did not exist, its inquiry stopped there. However, if such interference was shown, there was a rebuttable presumption that the move was not in the best interests of the child, requiring the custodial parent to show there were exceptional circumstances to justify the move. If the custodial parent could provide such information, the court would then look into the factual circumstances present to determine whether or not the move was in fact in the best interests of the child. Because this standard was difficult to apply and was rarely done so uniformly throughout the courts, the court in Tropea dispensed with the standard and created its own.
Custodial Parent Relocation Now Reviewed on a Case-by-Case Basis Focused on Best Interests of the Child or Children
Adopting what seems to be a more appropriate standard, instances of a custodial parent’s relocation are now analyzed on a case-by-case basis, focusing on the best interests of the children, which includes their wants and needs. Courts will also look to the effect the move will have on the child’s relationship with the noncustodial parent, any benefit or harm the child will receive if the move is or is not permitted, the economic reasons for the move, if the move is related to health-concerns, as well as the possibility and desirability of a change in custody of the children.
Do Visitation Rights Play a Role in the Relocation Analysis?
The noncustodial parent’s visitation rights play a large role in the Tropea analysis of custodial parent relocation. In this specific case, the mother was willing to work with the father to provide proper visitation, and drive the children to and from their father’s home for frequent and extended visits. Therefore, if you are a custodial parent discussing physical relocation with your divorce attorney, make sure you are aware that a court will be much more likely to grant you permission to relocate if you are willing to work with the noncustodial parent.
What Does this Mean for Me on Long Island?
If you are a custodial parent considering relocation outside of Nassau or Suffolk County, it is important to gather all facts surrounding why you desire to relocate, whether this will help or harm you economically, and the effects of such a move before you enter court (if it comes to that). Keep in mind however, that while you may desire to relocate in order to start your life anew, it is important to realize the implications this may have on your children. Divorce has the potential to be extremely hard on children, and a physical relocation may, at times, make a bad situation worse. Therefore, it may be in your best interest to discuss the issue of your relocation with the noncustodial parent before seeking permission to relocate from the court.
Be Sure to Consider and Address the Relocation Issue in Your Divorce Agreement
While it is customary for divorce agreements to include a stipulation restricting the custodial parent’s relocation, you and your partner can include any provision regarding custodial parent relocation you desire in your divorce decree. Therefore, it may be of importance for you, your spouse, and your divorce attorney to discuss what you will do if this situation were to arise before entering into your divorce agreement.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Need Help with Your Divorce Agreement on Long Island?
If you need more help or advice addressing the potential relocation of the custodial parent on Long Island, give the caring, experienced divorce attorneys at Robert E. Hornberger, Esq., PC a call at 631-923-1910. We’ll be happy to arrange a consultation to discuss your concerns and how best to address them.
by Robert E. Hornberger, Esq | Apr 1, 2014
How Do I Get Custody of My Pets In My Long Island Divorce?
Along with divorce on Long Island comes the heart-wrenching questions of which partner will be awarded physical custody of the children, who will continue living in the marital home, and at times most one of the most difficult questions, who retains physical custody of beloved family pets? Unfortunately, for some, the battle over which spouse gets to keep the cherished family pet can be almost as grueling and heartbreaking as the issue of custody of the children. Recently, a Manhattan court found itself faced with the issue of pet custody upon divorce, and provided guidance for divorcing couples on Long Island as to who will be awarded custody and how that decision may be reached.
Recent New York Divorce Case Involving Pet Custody Provides Guidance
The court case, Travis v. Murray, centered on a miniature dachshund named Joey that the plaintiff had purchased with her own money before the parties were married. It was alleged that the defendant had wrongfully removed the dog from the marital residence. Once the plaintiff realized the defendant had removed the dog, she filed a motion with the court for sole custody of the pet, claiming that he was in fact her property because she had personally purchased the dog, and that it was in Joey’s best interests to be returned to her care because she had been the sole caregiver. The defendant, however, countered the plaintiff’s arguments, and alleged that Joey had in fact been a gift from the plaintiff to the defendant, and that the defendant shared in financial, emotional, and practical caretaking of Joey, and therefore the defendant was entitled to custody of the couple’s pet. The question was up to the judge to determine what approach to take – a traditional property approach, or a case-by-case analysis of the best interests of all involved.
What is the Law on Long Island Regarding Pet Custody?
Long Island divorces are covered by New York State law. Historically, the prevailing law in the state of New York was that pets were strictly personal property (chattel), and therefore the laws of property would apply. Therefore, in order for a party to regain physical custody of a pet removed from his or her possession, an action in replevin (return of chattel) was necessary. However, with the rise in number of individuals who love their pets as they do their own children, the law has been swaying away from traditional laws of property and toward classifying pets as “somewhere in between a person and a personal piece of property.” Travis v. Murray, 977 N.Y.S.2d 621, 627 (2013). Accordingly, courts have recently been deciding issues of pet custody on an individualized, case-by-case basis.
Pet Custody Has Different Rules Than Child Custody in NY
While you may believe that this means the courts will apply a traditional child custody analysis to situations of pet custody, this is not the case. When determining child custody, the courts look to what living situation would be in the best situation of the child, and this is too subjective a standard to be applied to pet custody cases. Furthermore, child custody proceedings generally call for an attorney for the children, interviews with teachers, care givers, doctors and personal testimony from the children as to their wants and desires concerning their living situation. Such information is practically impossible to obtain in pet custody cases; one cannot realistically objectively gauge the emotions of a pet.
Pet Custody Cases Awarded Court Hearings on Long Island, NY
Therefore, if you find yourself in a pet custody battle, you will be happy to know that you will be awarded a hearing in court. The standard used during this hearing would be the “best for all concerned” standard, which places importance not only upon what situation is best for the pet, but also upon what situation is best for you and your soon-to-be ex-spouse. Accordingly, you both would be permitted to present evidence showing who spent more time with the animal, who took the animal to the vet, who was the animal’s primary caregiver, and whatever else the judge may find to be important.
Joint Pet Custody Not Addressed by New York Courts
Unfortunately however, the court in Travis v. Murray did not address the issue of joint custody over pets. Rather, it seemed to expressly reject this notion when it stated “[t]he extension of an award of possession of a dog to include visitation or joint custody . . . would only serve as an invitation for endless post-divorce litigation.” Id. Therefore, it seems as though whichever partner is awarded custody of the animal at the hearing will retain sole physical custody to the exclusion of the other.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Address Pet Custody Issues With Your Long Island Divorce Attorney
In order to avoid the issue of pet custody in court all together, you should discuss the matter with your divorce attorney and attempt to reach a resolution with your partner that will satisfy both of you outside of court. The divorce attorneys at Hornberger Verbitsky, P.C. have successfully negotiated appropriate Pet Custody arrangements for Long Island couples outside of a the restrictive rules of a Nassau County or Suffolk County courtroom. Give us a call at 631-923-1910 to schedule a free consultation where we can discuss your Pet Custody or any other issues of your divorce in our comfortable offices in Melville, NY. If you prefer, you can fill out the form on this page and we will contact you to schedule your appointment.
by Robert E. Hornberger, Esq | Mar 25, 2014
Can Ex Keep Children From Their Grandparents?
After a divorce on Long Island and depending on whatever child custody agreement you and your partner have entered into, a child may find that the environment he or she has become accustomed to has been turned upside down. In these instances, it is helpful to keep as many constants in your child’s life as possible. These constants may include their friends, pets, room color, and perhaps most importantly, their grandparents.
It often comes as a surprise to Long Island couples that their children’s grandparents are not automatically awarded visitation rights upon your divorce. If you are the non-custodial parent you should be aware that the custodial parent is legally allowed to keep your parents from seeing their grandchildren. As harsh as this might seem, sadly, some non-custodial parents find themselves in this dilemma, and if you happen to be one of those individuals, the following may be useful to you in determining what rights your parents have to see their grandchildren.
Why Aren’t These Rights Automatic?
The United States Supreme Court has decided that a parent’s right to raise their children as they wish is a fundamental right and they therefore have the right to deny visitation to the children’s grandparents. The Court operates under the assumption that a fit parent will always act in the best interests of the child. Because of this, a parent’s right to raise a child cannot be infringed upon unless it is necessary to advance a compelling interest set forth by the government. In other words, the government must have a VERY good reason to interfere with how a parent wishes to raise his or her child, and included within thosee rights is the right to decide who visits and spends time with that child.
What is the Law in New York State?
Grandparent visitation rights on Long Island are governed by New York’s Domestic Relations Law §72. Under this statute, a grandparent has standing to seek a court order to compel visitation rights to his or her infant grandchildren in two limited instances:
- When one or both parents are deceased.
- When equity favors a grandparent’s intervention. If both parents are alive and the fitness of the parent has not been called into question, a grandparent can only petition for visitation rights in instances where equity would favor his or her intervention.
Decisions Made on a Case-by-Case Basis
However, the fact that a grandparent can provide facts supporting one of the above two conditions does not end the court’s inquiry. From here, each decision will be made on a case-by-case basis, with the court taking into consideration the best interests of the child. Included in this analysis are whether visitations would force a custodial parent to accept grandparents from out-of-town, the amount of time grandparents spent with the children pre-divorce, if they ever babysat, the state of the relationship between the parent and the grandparents, and most importantly, whether or not the children want to see their grandparents and the relationship between the two. Clearly, this statute is very limiting, and grandparents cannot be awarded visitation rights solely on the grounds that they miss their grandchildren.
How Can I Avoid a Situation Such as This?
Your best option to avoid a situation in which grandparents are denied access to their grandchildren is to discuss the situation with your partner, provided that you currently maintain a relationship that allows you to discuss matters civilly. If you can, sit down, with or without your divorce attorney, and explain how grandparent visitation will affect your children. Although the right itself is deemed a “grandparent visitation right,” it is important to discuss grandparent visitation in terms of the rights of the children and not the grandparents. This way, it will be easier for your partner to see the consequences from the eyes of their children, rather than a third party to whom they may currently harbor negative feelings. If you and your partner cannot come to an agreement on your own, you may consider bringing the issue in front of a divorce mediator. This can be a mid-level step between discussing the issue between yourselves, and having the grandparents petition the court. And as always, keep in mind that a grandparent’s visitation rights are about the children – this is one constant that will benefit your children during a time of change.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Have Questions About Grandparent’s Rights in Your Long Island Divorce?
The divorce attorneys and divorce mediators at the law firm of Hornberger Verbitsky, P.C. have helped hundreds of divorcing couples on Long Island protect the rights of the children’s grandparents. Give us a call at 631-923-1910 to set up a convenient time to come in and sit down with one of our experienced divorce attorneys and mediators to discuss the particulars of your situation at a free consultation in our convenient Melville, NY offices.