by Robert E. Hornberger, Esq | Jan 12, 2016
Putting the Children First After Divorce
As a Long Island child custody lawyer and divorce attorney, I’m seeing that now that the Holiday season is officially over and we’re back to our more normal routines, many Nassau and Suffolk residents are breathing a sigh of relief instead of feeling a residual sense of joy. Children of divorce, especially, might find that the abundance of gifts, parties and desserts does not quite feel so fulfilling in the midst of family stress. Even if divorced parents (or families) are not openly arguing or criticizing, the undertones of the problems that led to the divorce in the first place often quietly continue throughout the growth and development of the children of divorce.
Adjusting to Major Events After Divorce Takes Time
For any family member involved in a divorce, learning to adjust to day-to-day life is no easy task, and the holidays only increase the challenge. For young children of divorced parents, the level of holiday stress of the holidays is often highly underestimated by the parents. These children are asked to split the holiday festivities between their parents and their two, separate families, and must often hear about their parents’ tensions or disputes about which days are spent with which parents, the precise pick-up and drop-off times, and other details along the way.
Holidays Often Increase Children’s Stress Levels
The holidays only exacerbate the already existing stress within a divorced family, and children are particularly sensitive to the rifts caused by the divorce. If you suspect that your children had a tough holiday season due to your divorce, it is not too late for you to address and validate your children’s feelings and concerns. It is also important to evaluate what, if any, role you might have played in contributing to your child’s feelings of stress, and how you might begin to ameliorate the effects and make changes in the New Year.
Unresolved Child Custody & Visitation Make Things Worse for Children
Especially for families with unresolved child custody and visitation issues, it is crucial that parents learn to communicate with one another in respectful and compassionate manner. Putting the children first during and after divorce means putting aside the anger, hurt, betrayal, and sadness that are directed at the other parent. The emotional needs of your children are far more important at this point, as children going through this process are sensitive and impressionable. Remember that the arguments, criticism, and guilt tripping can have long-term impact on childhood development. Unless there are real safety issues involved, make it a priority to encourage your child’s relationships with both parents. Your child should not have to feel guilty for loving or being with his other parent.
Guidelines to Help Your Children Through Your Divorce
Parents should commit to working through their own anger and control issues, as this will benefit their children greatly in the long run. Professional counseling can be a great tool for both parents and children involved in a divorce. Here are some other guidelines to follow if you are concerned about how your divorce is affecting your children:
- Do not speak ill of your ex to or in front of your children.
This includes eye rolling, other gestures or remarks, or expression of disinterest in things your child wants to tell you about time spent with the other parent. In fact, you should encourage your child to openly talk to you about time spent at the other house. Keep in mind that if you brush off any discussion that mentions the other parent, you are effectively showing your child you do not want to hear about a big portion of your child’s life.
- Do not make the children responsible for any form of communication between parents.
Unpleasant as it may be for you, it is your job to make all scheduling and arrangements with your ex. Don’t leave the footwork to your child, who may end up absorbing the emotional reactions from each side.
- Never discuss money with your children as it relates to your ex.
Do not discuss child support or who pays for what. This is an emotionally charged issue, and the children should not have to be concerned with it.
- Do not cause your children feel guilty for being away from you.
As much as you want to be honest with your children, they do not need to bear the emotional weight of knowing your every feeling and concern. Be mindful of how much you share with your children regarding your own emotional struggles, and how much it affects them.
Make a New Year’s Resolution to Keep Your Children Safe From Your Divorce
Among the New Year’s Resolutions you may have made for yourself, consider committing to these guidelines as much as you can. By doing so, you can give your children the freedom to feel safe and happy wherever they are. Divorce is difficult on the children even without the emotional issues between parents. Recovering from a difficult divorce can be a long and difficult process, but with self-awareness and attentive parenting, the bonds between family members can be strengthened rather than worn down.
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
Speak to an Experienced Child Custody Lawyer About Your Child Support, Child Custody or Visitation
If you have questions about a child support, custody, or visitation issue, and are not sure how to best proceed, contact the Law Office of Robert E. Hornberger, P.C. for a free consultation with a premier Long Island family lawyer and divorce attorney.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Dec 29, 2015
As a Family Law and Child Custody Attorney practicing on Long Island, I see that many divorcing parents in Nassau County and Suffolk County have questions about their rights to visitation with their children after divorce.
Arrangements for child custody and visitation can be one of the most difficult agreements for divorcing parents to make, but coming to a private agreement about visitation rather than making the courts decide can result in better outcomes for the children and parents. Parents can avoid the time, cost, and stress of litigating child visitation issues by trying to put differences aside in order to come to a private agreement. Courts in Nassau County and Suffolk County on Long Island are governed by New York state law, which is designed to encourage parents to work together whenever possible to create an amicable environment for the children.
If You Can’t Agree on Child Visitation Schedules, Nassau County or Suffolk County Supreme or Family Courts Will Decide For You
When divorced or separated parents cannot come to a private agreement about child custody and visitation, a court in Nassau County or Suffolk County will likely issue a custody and visitation order, which can include a detailed visitation schedule. When one parent is granted full or sole custody of a child or children, the noncustodial parent is often entitled to visitation with the child. The visitation schedule crafted by the court will consider the schedules and locations of the parents and children, and will keep the best interests of the child in mind, as well as the best interests of the family as a whole.
Child Visitation on Long Island Is Not Just Every Other Weekend
You should be aware that in Nassau County and Suffolk County, visitation arrangements are no longer confined to an “every-other-weekend” schedule as many parents may believe. Presently, many noncustodial parents are awarded weekly weeknight and weekend visitation, which is arranged based upon the schedules of both parents as well as the child’s or children’s activities.
When issuing a visitation order, courts have the discretion to allow parents to work out the schedules on their own, or to impose specific dates and times for visitation, including pickup and return times and locations, holiday arrangements, and where the children may or may not travel during visits. When the parents can get along well enough to work out details between one another so that they can accommodate everyone’s schedules and locations, courts will likely allow the parents to arrange the details privately. When a divorce is not amicable and parents cannot seem to agree on any point, the court will clearly define the terms of the agreement so that there is no ambiguity and less room for manipulation or argument.
The Child or Children Have Input on their Visitation on Long Island
The wishes of minor children will be taken into account, and more weight is given to the wishes of older children. Nassau County and Suffolk County Courts will try to accommodate the children’s wishes in most cases; however, the court will also consider the influences on the child’s wishes as well as the maturity level of the child.
Visitation Can Be Withheld by Nassau County or Suffolk County Supreme or Family Courts
In some cases, noncustodial parents will not be entitled to visitation. Cases in which there is abuse, neglect, or abandonment can result in a withholding of visitation rights, or in extreme cases, a termination of parental rights. As the bottom line for the courts is the best interests of the child, any visitation that could be emotionally or physically damaging to the child is unlikely to be ordered by the court. Visitation may be withheld from parents who are abusive, or who struggle with drug or alcohol addiction (especially if they refuse treatment), emotional volatility, or a propensity to disregard court orders.
Child Visitation is Decided by Nassau County or Suffolk County Family Court or Supreme Court
Visitation petitions can be filed in the Family Court or the Supreme Court in order to ask the court for an initial order of visitation, or to request modification of an existing order. Child custody and visitation orders can be included in the divorce or separation agreement, or can be made by a separate order of the court. Custody or visitation may also be modified by the court upon the petition of a parent if circumstantial changes have occurred that warrant a change in the custody or visitation arrangements. For example, if a parent’s work schedule has changed, or if a parent is relocating, courts may find that a significant change in circumstances has occurred that makes modification necessary. Finally, if a visitation order is being violated, a parent can file a violation petition in order to address the violation. In response, the court will use its discretion and may terminate or reduce visitation rights.
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.
Contact Long Island Child Custody Attorney for Help With Child Visitation and Child Custody in Nassau County and Suffolk County
Child custody and visitation is one of the most sensitive issues in the divorce or separation process in Nassau County and Suffolk County, NY. Confide in a trusted Long Island Child Custody Lawyer and Family Law attorney and to address your family’s unique circumstances and needs in order to ensure the best possible outcome for your children and family. If you have questions about your visitation rights in Nassau County, Suffolk County, or the five boroughs of New York City, contact the Family Law Office of Hornberger Verbitsky, P.C. at 631-923-1910 for a free, confidential consultation.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Dec 1, 2015
As a Family Law Attorney and Divorce Lawyer practicing on Long Island, it is critical that I stay abreast of any potential new legislation that may affect my clients’ cases in Nassau County or Suffolk County Court.
One piece of new legislation that could dramatically affect my clients is Assembly Bill A7645. This new bill would significantly change the Spousal Support (AKA Alimony) as well as Child Support for families throughout Long Island.
The bill that has been passed in the New York State Legislature awaits the signature of Governor Cuomo to take effect. Assembly Bill A7645 sets forth guidelines for determining the appropriate amount and duration of both temporary and post-divorce spousal support, and will amend the Family Court Act (FCA) and Domestic Relations Law (DRL) in this regard. At present, the court must determine the level of spousal support based upon certain factors enumerated in the DRL. The enactment of Bill A07645 would provide specific formulas that will reduce the amount of court discretion involved in the determination of spousal support.
The new bill consists of new formulas for calculation of spousal support for both temporary and post-divorce maintenance, among other changes regarding modification and termination of support, which are outlined in some detail below.
Calculating Spousal Maintenance
Assembly Bill A7645 establishes specific formulas for calculating spousal support. The method of calculation will be different depending upon whether the paying spouse is also the noncustodial parent and will be ordered to pay child support, or if there are no children or the paying spouse is the custodial parent and therefore will not be required to pay child support.
Temporary Maintenance
In particular, the bill provides formulas for determining “temporary maintenance,” the spousal maintenance that is required as the divorce is pending, and post-divorce maintenance. First, the income cap for temporary maintenance is changed from the current $543,000 to $175,000 of the payor’s (higher earning spouse’s) income. For the purposes of the formulas below, if the payor’s income is greater than $175,000, any amount higher than $175,000 will be a matter for the court’s discretion.
Formula for Divorces With Children
In cases where the payor is responsible for both spousal and child support, the formula is as follows:
“(i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income;
“(ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
“(iii) the lower of the two amounts will be the guideline amount of maintenance.”
When a payor is responsible for both spousal support and child support, spousal support will be calculated first using this formula. After subtracting the amount of spousal maintenance that will be paid, child support is calculated by using the income of the payor minus the spousal maintenance paid, and the income of the payee including the spousal maintenance received.
Formula for Divorces Without Children
In cases where there are no children, or where the higher earning spouse is the custodial parent, the steps for calculating spousal support are as follows:
“(i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income;
“(ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result;
“(iii) the lower of the two amounts will be the guideline amount of maintenance.”
The formulas presented by the bill provide some level of predictability for couples with moderate to low incomes. There will be less court discretion involved in determining the amount of spousal maintenance when the amount of income for the higher earning spouse is at or below the $175,000 cap. However, courts will be permitted to consider certain additional factors in certain cases in order to prevent injustice. If courts choose to use such discretion, they must set forth the particular factors or circumstances in the decision. Additional factors might include termination of a child support award, actual, partial, or anticipated retirement, and income or imputed income on assets being equitably distributed. These factors may affect the amount or duration of support.
New Guidelines for Temporary & Post Divorce Maintenance
In addition to the numerical formulas above, the bill provides other new and important considerations for temporary or post-divorce maintenance. For calculating temporary maintenance, courts may allocate responsibility for certain family expenses while the divorce is pending. For post-divorce maintenance, courts now must also consider the income derived from any income-producing property that will be equitably distributed upon divorce. Finally, actual or partial retirement resulting in a considerable decrease in income must be considered as a grounds for modification of a spousal support order.
Calculating Duration of Post-Divorce Support
The bill also provides judges with suggested ranges for the duration of maintenance awards, which applies to post-divorce maintenance only. The ranges depend upon how long the marriage lasted.
For marriages of zero to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage.
For marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage.
For marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage.
However, the court retains discretion to award post-divorce maintenance without limit as to duration in appropriate cases.
Other Notable Changes
The bill eliminates “enhanced earning capacity” such as a degree, professional license, celebrity goodwill, or career enhancement, earned by a spouse as a marital asset. These “enhancements” will no longer be considered an asset for the purpose of distribution of marital assets. The bill also amends DRL Section 248 (Modification of Judgment or order in action for divorce or annulment) to make it gender neutral, so that it will also apply to married couples of the same sex.
The bill awaits approval from Governor Cuomo in order to become law. The formulas will become effective 120 days after the bill becomes law, and will not apply to existing judgments or agreements.
Contact An Experienced Long Island Family Law Attorney to Learn How the Latest Legislation May Effect Your Divorce on Long Island
For more information about how this new bill might affect your divorce, or any other area of divorce or family law on Long Island, contact the Family Law offices of Hornberger Verbitsky, P.C. at 631-923-1910 for a complimentary consultation.
NOTES:
1. The bill can be found at: http://www.nysenate.gov/legislation/bills/2015/A7645. The Sponsor’s Memo can be found at http://assembly.state.ny.us/leg/?default_fld=&bn=A7645&term=2015&Memo=Y.
2. The terms “paying spouse,” “higher earning spouse,” and “payor” are used interchangeably in this memorandum. These terms are used to describe the spouse with the greater income, who is therefore the spouse responsible for paying support.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law attorney Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Aug 19, 2015
As a divorce attorney on Long Island, I’ve seen that child custody is one of the most contentious of issues in a divorce in Nassau County or Suffolk County courts. If custody of your unemancipated child(ren) is a contested issue during your divorce, chances are the judge assigned to your matter will appoint an attorney to represent your children, otherwise known as a Law Guardian. During your Long Island Divorce the Law Guardian has one purpose and one purpose only – to represent your children.
The Law Guardian’s Role in a Contested Long Island Child Custody Case
When meeting with a Law Guardian, he or she will speak to your children privately, although at times he or she will request to speak with you and your spouse as well. If your children see a therapist or attend school, the Law Guardian may also request to speak with those individuals to obtain additional information. However, once your children turn 18, neither you nor the Court can order them to live with either you or your spouse.
The Law Guardian plays the most important role in matters where parents are unable to agree with each other as it pertains to custody and visitation of their unemancipated children. In these cases, the Law Guardian’s goal is to shield your children from being placed in the middle of a nasty divorce battle between you and your spouse.
If your case proceeds to trial in Nassau County or Suffolk County court on the issue of custody, the Law Guardian will call witnesses and state his or her case just the same as your divorce attorney. However, the point which he or she will try to make may be different from that of your attorney – the Law Guardian will need to show that custody with one parent over the other is in the best interests of the child.
Can the Law Guardian’s Opinion Outweigh that of the Child’s Parents?
In some instances, parents will settle the issue of child custody and visitation without a trial. This is done by a Custody Agreement on Consent, meaning that both parents consent to the terms set forth therein. Naturally, one would assume that due to this the Court or the Law Guardian cannot appeal the agreement. However, the Second Department case of Velez v. Alvarez, which was decided on June 26, 2015, held that a Law Guardian may appeal from an order of custody on consent.
In Velez, the parties entered into a custody agreement on consent which provided that the parties would have joint legal custody of the unemancipated children. In the event the parties were unable to reach an agreement, the Mother would have final decision-making authority. However, this order was entered over the objection of the Law Guardian, and therefore, the Law Guardian had the right to appeal from said order.
The Court noted that although “the paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances”, it cannot enter an order of custody “based upon controverted allegations without the benefit of a full hearing.” Velez v. Alvarez, 129 A.D.3d 1096 (2d Dep’t 2015). The Law Guardian felt the custody agreement entered into between the parties was not in the best interests of the children involved, and therefore, when the agreement was entered against his wishes, he appealed it. On appeal the Second Department found that the Family Court did not have sufficient facts in its possession to “render an informed and provident determination as to the best interests of the subject children.” Id. Therefore, the case was remanded to the Family Court for further fact finding inquiries.
How to Avoid Law Guardian Appealing Your Custody Agreement?
This case likely causes discomfort in the minds of many parents going through a divorce on Long Island. However, your Long Island divorce attorney should be equipped with the knowledge necessary to know how to prevent this type of outcome. First and foremost, any time there is an issue of custody your attorney should seek for you to be put on the record and for the judge to conduct a hearing. This way, any determination is based upon your sworn testimony, and not simply motion papers. Additionally, your Long Island divorce attorney should be prepared with witnesses whom he or she may call to testify on your behalf if need be. Because the law states there must be a hearing before a custody determination, it is in your best interests for your attorney to insist on a hearing being performed in your matter.
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.
Receive a Free Long Island Divorce Attorney Child Custody Consultation
For more information about how to protect yourself and your children during your divorce in Nassau County of Suffolk County, contact Long Island divorce attorney with great experience in contested child custody cases. Long Island’s Robert E. Hornberger, Esq., PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced divorce lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Jul 28, 2015
As a divorce lawyer on Long Island, I have seen that many couples, after their divorce, find it difficult to communicate with each other calmly and rationally regarding their children. At first, emotions are raw and it is unlikely you wish to engage in any type of communication with your now ex-spouse. After a time, emotions calm down but other issues develop that can complicate the issue.
As children grow older they become involved in a multitude of activities, making it difficult for both parents to enjoy consistent, uninterrupted, scheduled parenting time. The non-custodial parent often begins to feel as though the custodial parent is scheduling doctor’s appointments, swimming lessons or dance classes during his or her parenting time, when, in reality, this may have been the only time available. These types of miscommunications and assumptions are exactly what lead to fights and arguments down the road.
As a divorce attorney serving Suffolk County and Nassau County I encourage my clients to maintain open channels of communication with each other after their divorce is finalized. However, I realize this may be difficult as time goes on and their daily lives become less inter-twined. Therefore, when I received a brochure in the mail for a program called “The Our Family Wizard” I saw it as a useful tool for my clients and any potential clients.
What is “The Our Family Wizard”?
“The Our Family Wizard” is a computer software program designed to minimize miscommunication and arguments between parents who have joint legal custody of their children. Joint legal custody means that both you and your ex-spouse have the right to be involved in major decisions on behalf of your children, such as those relating to education, religion and health. The software, which contains the following features, can be installed on a desktop computer, laptop or downloaded as an application on a mobile smartphone.
1. Calendar. The calendar feature allows you and your ex-spouse to set the parenting schedule as you see fit. You have the ability to input information such as designated parenting time, requests for changes in the parenting schedule and the children’s after school activities or scheduled appointments. Families in Nassau County and Suffolk County use their phones for everything these days. Now, you can swap your old handwritten journal and schedules filled with parenting issues for a simple application on your iPhone, Droid, Blackberry or Kindle Fire. It will most likely be with you all the time and you won’t have to worry about losing that scrap of paper with your child’s reschedule soccer game ever again.
2. Message Board. With the message board you can communicate with your ex-spouse with the ease of an e-mail. You or your ex-spouse will receive an instant notification when the other makes an entry or a request for change on the calendar. This way, there is no chance of miscommunication, or either party failing to receive a message. Each and every message regarding your children is sent via “The Our Family Wizard” secure, private sever.
3. Expense Log. Perhaps the most important feature for Long Island couples who have been divorced in Nassau County or Suffolk County is the expense log. Most parents enter into child support agreements where they are each supposed to pay their pro-rata share of the cost of the children’s unreimbursed medical expenses and extracurricular and educational activities. In reality though, once couples are divorced and the children reside mainly with one parent, that parent tends to absorb the majority of the cost of the children’s day-to-day expenses. To combat this, these expenses can be tracked using “The Our Family Wizard” expense log feature. The paying parent has the ability to input all the appropriate information, including the amount of payment, what it was for and when it was made, and the software will calculate each parent’s pro-rata share. From there, the non-paying parent will receive notification of the payment and their share through the message board. Once the payment is received it may be marked as “paid,” which provides both parents with an easy way to keep track of those payments which are satisfied and those which are due and owning.
“The Our Family Wizard” takes the guess work out of co-parenting. You no longer have to provide your ex-spouse with receipts for every item purchased or co-pay paid for. You no longer have to call your ex-spouse every time you need to request a change in the parenting schedule. Having everything related to your children in one place makes the aftermath of a Nassau County or Suffolk County, Long Island divorce that much easier.
Receive a Free Divorce Attorney Long Island Consultation
For more information about how to keep the lines of communication open with your spouse before and after your Long Island Divorce, contact an experienced Long Island divorce attorney. Long Island’s Robert E. Hornberger, Esq., PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced divorce lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Jul 14, 2015
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by Robert E. Hornberger, Esq | May 13, 2015
As a Long Island Divorce Lawyer, I have been captivated by the sweeping headlines of the past five years, and especially throughout the last couple weeks, regarding the heart-wrenching story of a Colorado man who never gave up hope of seeing his two daughters again. The story begins around 2010, when the man, Dennis Burns, was granted residential custody of his two children after a heated legal battle with his soon to be ex-wife, Ana Alianelli. Shortly thereafter, Ms. Alianelli took the parties’ two children to her native Argentina against both Burn’s wishes and the Court Order which stated the children were to reside with their father. After approximately five long years, numerous trips to Argentina, multiple court appearances and appeals and countless sleepless nights, Mr. Burns was finally reunited with his children in April 2015.
Please keep in mind there are underlying international abduction and kidnapping issues at play in the Burns’ matter; however, putting those aside for a moment, I believe the case highlighted certain aspects of custody battles which are important to couples experiencing similar circumstances in Nassau County and Suffolk County during their Long Island Divorce. In reading articles and watching news programs about the Burns family, the phrase “best interests of the child” was continuously mentioned.
If you’ve read in prior posts on the subject of Child Custody on this Long Island Divorce Law website, you will know that the best interests of the child is the standard used by the Courts in Nassau and Suffolk counties, and all divorce courts in New York state, when making a child custody determination.
Pretend for a moment there are no international issues involved, the parties in this case both reside within the State of New York and Ms. Alianelli legally relocated with the children from Long Island to Buffalo. Five years later, Mr. Burns files with the Family Court seeking a modification of the current child custody order to declare him the residential parent and order Ms. Alianelli to return the children to Long Island. Not only would the court consider whether the potential relocation was in the best interests of the children, but it would also consider whether the potential change in custody was in the child’s best interests.
Taking facts from the Burns’ matter and simply replacing Argentina with Buffalo, the court would certainly consider the fact that while in Buffalo with the children Ms. Alianelli refused to allow Mr. Burns reasonable access to them. Although there was an existing Court Order which directed Ms. Alianelli to allow Mr. Burns to communicate with the children via Skype three times a week, Ms. Alianelli continuously and willfully violated this Order. It is the court’s strong opinion that it is in the best interests of the children to have two loving and caring parents. Naturally, the court looks unfavorably upon one parent if he or she alienates the children from the other parent.
Furthermore, Ms. Alianelli refused to allow the children to speak to their paternal grandparents while in Buffalo. However, upon the children’s return to Long Island, Mr. Burns seems more than willing to facilitate their relationship with their mother, even permitting their mother to travel from Buffalo to Long Island with them and agreeing to allow their mother to enjoy supervised visitation with the children.
If you are seeking custody or a modification of custody you must demonstrate that you foster a relationship between not only the children and their other parent, but also between your children and the other parent’s family.
As stated, it is important to keep in mind there were underlying international issues at play in the Burns matter, however, the three factors previously mentioned play an extremely important role in your Long Island Divorce if there is a custody battle, or if you believe there is the potential for a custody battle. As much as you and your soon to be ex-spouse may not get along or cannot stand to be in the same room together, you cannot let that get in the way of the child or children’s relationship with their parents. If you truly seek to be the residential parent, you must facilitate and foster the relationship between your children and their other parent, as well as their relationship with the children and their extended family.
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 Your Child Custody Case? Receive a Free Consultation from a Divorce Lawyer, Long Island’s Robert E. Hornberger, Esq.
If you have questions about your children’s custody or need more information about issues of Child Custody in Nassau County or Suffolk County on Long Island, you should immediately consult a local divorce lawyer. Long Island’s Robert E. Hornberger, Esq., PC’s compassionate and experienced divorce attorneys can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced Divorce Attorney Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
by Robert E. Hornberger, Esq | Mar 31, 2015
As a Long Island divorce lawyer, my assistance is often sought to submit to the court a name change request on behalf of their minor children Nassau County or Suffolk County court. I have found that the general consensus regarding name changes in New York is that the process is quite easy. However, the reality of the situation is quite opposite.
Procedural Requirements for a Name Change in Suffolk County or Nassau County Court
In order to file a name change request, you must first download and fill out the appropriate forms from the New York State Unified Court System website. If you wish to do this on your own you must be careful, as there are different forms for “state” residents as opposed to “city” residents. Because my divorce attorney firm practices mainly in Nassau County and Suffolk County, this blog will discuss only how to file for a name change in those counties. After completing the requisite forms, you will need to file them with the court. There is a $210 filing fee in Supreme Court, as well as any additional fee associated with filing a Request for Judicial Intervention. A Request for Judicial Intervention is a necessary form that alerts the court to your request in order to have a judge assigned to the matter.
The Petition for an Individual’s Name Change requests information such as whether the minor (or individual seeking a name change) has ever been convicted of a crime, has ever filed for bankruptcy, or if there are any judgments or liens against the child or any property titled to the child. This information is requested because if the judge believes you are seeking to change your child’s name to commit fraud or otherwise avoid debts, liabilities and/or other responsibilities, it is likely your request will be denied.
What Do I Have to Show in Suffolk County or Nassau County Court for My Petition to Be Granted?
The recent Suffolk County case Matter of Dennington (Schaeffer), 2014 NY Slip Op 51735 (U)(2014), analyzed what may and may not be a valid reason to grant a name change petition.
The Petitioner, who alleged the child’s father was absent from the child’s life, sought to change the child’s last name to her own maiden name. After hearing conflicting testimony about the father’s role in the child’s life, the Court noted that deciding a name change petition must be done after an examination of the totality of the circumstances, and whether based upon those circumstances, granting the petition would be in the best interests of the child involved. Therefore, such a decision is not based solely upon the word of the moving party. Rather, the court will consider, among other things, whether changing the child’s surname would affect his or her relationship with either parent, how the child is known throughout the community, the extent to which the child identifies with his or her last name, and, if old enough, the child’s preference to have his or her named changed. Matter of Eberhardt, 83 A.D.3d 116, 123-24 (2d Dep’t 2011).
Additionally, even if a court finds a name change to be in the best interests of the child, there must still be a “compelling” reason to grant the name change, such as “where the natural father is guilty of misconduct, abandonment, or lack of support.” Matter of Dennington (Schaeffer), 2014 NY Slip Op 51735 (U)(2014). It is believed that unless one of the above is shown, such a decision is better left to the child when he or she reaches maturity. Id.
What if the Non-Custodial Parent is Delinquent in Child Support Payments?
What most likely caught your eye from the above decision is the statement that the lack of support may be a compelling reason to grant a name change application. However, it also must be known that while the Court in Dennington did note that the lack of support was a compelling reason, it also denied the Petitioner’s motion even though she alleged that the Respondent-Father was in arrears on child support and his wages were now being garnished. Therefore, it seems that there must be a gross lack of support for this to be sufficient grounds on which to base a name change application.
Your Long Island Divorce Lawyer Can Advise You Regarding Name Change Petitions in Suffolk County or Nassau County Court
Whether or not to file a name change petition on behalf of your minor child is a purely personal decision. As a Long Island divorce lawyer, I can only guide you as to the laws involved and the likely outcomes. If you have doubts as to whether your petition would be granted, you may take either the “wait and see” approach, and allow the child to make his or her own decision upon reaching the age of 18, or the “I’ll never know unless I try” approach and file now. As always, it is important to remember that the child will be affected by any name change, and you must be sure you are seeking this for the right reasons.
When you’re ready to move forward, give the experienced and compassionate Long Island divorce lawyers at Robert E. Hornberger, Esq., PC a call at 631-923-1910. We’ll help walk you through the process so you can decide for yourself which route is in your, and your child’s, best interests.
by Robert E. Hornberger, Esq | Feb 10, 2015
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by Robert E. Hornberger, Esq | Dec 2, 2014
When you get divorced on Long Island, New York, you and your spouse will be faced with many decisions. One of those decisions will be what type of child custody arrangement you will enter into. While there are many types, the two most common are Joint Legal Custody and Joint Residential Custody, and both of these raise concerns when dealing with the child’s education.
What is Joint Legal Custody?
Joint Legal Custody is an arrangement you and your spouse may enter into that allows you both to play a role in all major decision making on behalf of the child. This may include issues involving the child’s health, religion and education. Naturally, you and your spouse may opt to include other decisions as “major decisions” in your Settlement or Separation Agreement.
What is Joint Residential Custody?
Joint Residential Custody simply allows both parents to have physical custody of the children on an equal basis.
How do These Arrangements Play a Role in My Child’s Education?
As a divorce lawyer on Long Island, New York, I have a great deal of experience explaining the implications both joint legal and joint residential custody may have when it comes time to consider your child’s education. When you enter into a joint legal custody arrangement with your spouse, it is important to be aware that you both will continue to have the legal right to access any and all of your child’s educational records.
According to the Family Educational Rights and Privacy Act, educational records are anything that is maintained by a school that is receiving federal funding which contains information that would allow you to directly identify the student. This means that both you and your ex-spouse will have access to any records maintained by the school concerning your child. While this is of concern to some parents, if you are considering entering into a joint legal custody arrangement, it is likely that you and your spouse have a somewhat amicable relationship and you would not object to him or her being involved in the child’s education.
On the other hand, joint residential custody prevents a greater barrier to a child’s education than joint legal custody. Under Section 3202 of New York’s Education Law, children “are entitled to attend school in the District where they reside” tuition free. To establish residence within a specific district, the student and/or parent must show that the student is physically present within the confines of the school district and has the intent to remain there. If your child does not reside within the boundaries of a specific school district, they still may be entitled to attend school but on the condition that tuition be paid. You may be wondering how this ties into your Long Island Divorce, but it plays a greater role than you may imagine. If you and your spouse elect a joint residential custody arrangement, your child technically resides in two homes, and may be two school districts. For educational purposes, a child can only have one residence. Therefore, if you and your spouse reside in different school districts, your child may not be a resident of either and you may be faced with a situation of having to pay tuition for an otherwise free public school education.
How Can I Avoid This Problem?
The easiest way to prevent barriers to your child’s education is to elect to enter into a joint legal custody arrangement, with only one parent having residential custody. This way, both parents will have access to the child’s school records but the child will have one residence for purposes of the school districts. Your Long Island divorce lawyer can guide you as to specific parenting time schedules to be placed in your stipulation of settlement or separation agreement so both parents are provided ample time with the child.
A second possible solution is to elect a joint physical custody arrangement, but declare one parent the residential parent for educational purposes. This way, both parents may be permitted to have the child on an equal basis, but the child will attend school in the district of the designated parent. If you decide to enter such an arrangement, keep in mind that a school district may not provide your child transportation outside of the district’s boundaries. Therefore, you and your spouse may opt to live close to one another so you can provide transportation if the district refuses.
While each divorce is different, the above are a few general points of consideration to think about when faced with decisions regarding child custody on Long Island and how that will affect your child’s education.
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.
Compassionate Long Island Divorce Attorney Has Child Custody Answers
The experienced and compassionate divorce attorneys at Robert E. Hornberger, Esq. P.C. have helped hundreds of Long Island couples resolved their divorce and Child Custody and Support issues amicably and affordably. Contact us today at 631-923-1910 to schedule your free, no-obligation consultation with an experienced Long Island divorce attorney.
