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?
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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 | 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.
by Robert E. Hornberger, Esq | Jan 30, 2014
Divorce Mediation on Long Island is often a more successful, less stressful and less expensive way to divorce in Nassau and Suffolk County, especially if you have children.
A divorce is scary, difficult, and stressful, and if there are children involved that only amplifies an already complicated situation. Thankfully however, the Nassau County and Suffolk County court system is not the only medium you and your spouse have to resolve your divorce. Rather than turning to the courts, a divorce mediator can help you to achieve an amicable resolution to your divorce agreement and save you time, money and stress in the process. If you and your spouse can work together to resolve the major issues involved in separating your lives a divorce mediator can assist you in avoiding not only the obvious financial burdens and time constraints of a divorce through the court system, but it will also help you and your spouse to avoid the potential emotional burdens that can come to the surface while dragging your relationship through court.
Your Divorce Mediator is a Neutral 3rd Party
Divorce mediation allows you and your spouse to sit down with a neutral third party, express your wants and needs, and eventually permits the two of you to come to a mutual agreement regarding your future, and the future of your child or children. While you are not required to obtain a divorce attorney before commencing divorce mediation, doing so has many benefits that can assist you and your spouse in eventually reaching an agreement. If your mediator is also a divorce attorney, he or she can help you formulate and review your final agreement and prepare the final divorce papers for you.
Honesty is Key to Successful Divorce Mediation
While divorce mediation may sound appealing to you, you must be sure that you and your spouse are able and willing to be honest and truthful with each other and you’re your mediator during the mediation. If you and your spouse are going through a turbulent divorce and are unable to get along due to negative feelings such as anger, resentment, and heartbreak, divorce mediation may not be the proper choice for you. In that case, you should look into retaining a divorce attorney and obtaining your divorce through litigation in the Nassau County or Suffolk County court system.
On the other hand, if you and your spouse both want the divorce and can amicably resolve the material differences you need to move on with your lives, considering divorce mediation should be at the top of your priority list before turning to the courts, especially if you have children together.
Divorce Mediation Saves Children Emotional Distress
If you take the traditional, litigated, route for divorce, children all too often become victims of the divorce process. They often are subject to witnessing the constant battle their parents have with each other over such issues as child support, custody, visitation and who gets to spend weekends or holidays with the children. This eventually ends with one parent having custody over the children and the other getting only visitation rights. At times, children also may feel as though they have to pick sides in the battle, making decisions like picking with which parent they want to spend their birthday or holidays. Such seemingly simple decisions can put a great emotional strain on a child. While you may not realize it, this can have detrimental effects on your children, and you should try your best to avoid putting your child in such situations. Unfortunately, divorce litigation tends to amplify these issues and pull the child into them, rather than minimize them and keep the child out of them.
Divorce Mediation Allows You to Make Decisions for Your Family, Not the Courts
In divorce mediation, there is no such thing as Child Custody or Visitation Rights, rather, you and your spouse have the opportunity to sit down and amicably discuss what is best for your children, custom tailoring your parenting plan to the specific needs of your family. You get to decide what’s best for your child or children rather than putting it in the hands of the Suffolk County or Nassau County Courts. On occasion, couples in divorce mediation agree not to have a formal agreement. In such cases, rather, you and your spouse may agree to take each week as it comes depending on your schedules and the schedules of the children. In these instances, the child may spend four days with you and three days with your spouse one week, and spend the entire next week with your spouse if you wind up having to work late or go out of town for whatever reason. This also allows a child to not feel as though he or she has to pick which parent he or she wants to spend time with because you and your spouse are splitting time evenly according to your schedules. This is contrary to a traditional court ordered visitation agreement, where you or your spouse may have the children one week but yet also have other commitments during that same time period and therefore miss out on precious time together.
Whether or not you have children together, you and your spouse may find that divorce mediation is a more attractive alternative for you and your spouse. Divorce mediation puts you in control and allows you to make the right decisions for you and your family, while saving time, money and stress on you, your spouse, and your children. You and your spouse can avoid the inevitable hard feelings that come from arguing during the litigation process and agree to allow the two of you to have time with the children when you are able to spend quality time together, and not just time the court directs you to spend.
Have More Questions About Divorce Mediation on Long Island?
To learn more about Divorce Mediation on Long Island and how it can save you time, money and stress, visit this page: How Divorce Mediation Works and its Benefits for Families in Nassau, Suffolk, Long Island. The Long Island divorce mediators at Robert E. Hornberger, Esq., PC are caring, successful divorce attorneys, experienced in all methods of divorce in Nassau and Suffolk. From Divorce Mediation to Collaborative Divorce to Divorce Litigation, we will represent you to best meet the unique circumstances of your divorce. Call us at 631-923-1910 for a Free Consultation to discuss the specifics of your case and we will help guide you to the appropriate resolution method for you and your family.
by Robert E. Hornberger, Esq | Dec 12, 2013
As a divorce lawyer practicing in Nassau County and Suffolk County on Long Island, NY, I see first-hand how financial problems are frequently the source of marital discord between spouses. Very often, we find that divorce proceedings and bankruptcy filings are often intertwined. Due to the relationship between divorce and bankruptcy, it is important to understand the inner-workings of both areas of law and how filing for bankruptcy during divorce proceedings may affect all of the parties involved. In particular, it is essential for non-debtor spouses to understand what support they are entitled to when a debtor-spouse files for bankruptcy.
Bankruptcy Does Not Discharge Child Support or Spousal Support in Long Island NY Divorce
The general concept of enabling a person to file for bankruptcy pursuant to the Bankruptcy Code is to provide a debtor with a “fresh start,” by essentially wiping the debtor’s slate clean. However, legislation, as well as case law, have provided that debts related to the enforcement of familial obligations, i.e. the payment of Child Support and Spousal Support, are non-dischargeable debts in bankruptcy proceedings. The non-discharge-ability of familial obligations is rooted in public policy considerations. The Bankruptcy Abuse Prevention & Consumer Protection Act (BAPCPA), which was enacted by Congress in 2005, provides reassurance to non-debtor spouses that they will be able to recover certain property and support owed to them by spouses declaring bankruptcy. The BAPCPA further intends to prevent debtors from shirking their familial obligations by opting to declare bankruptcy.
Bankruptcy Creates Estate for Debtor’s Non-Exempt Assets
With the filing of any bankruptcy petition, an estate consisting of the debtor’s non-exempt assets is created. In the event that a debtor files for bankruptcy during a pending divorce proceeding, state law must be consulted to determine if the non-debtor spouse holds any interest in the property of the estate. The non-debtor spouse must hold “an inchoate or contingent interest” in the property, otherwise, the filing of the bankruptcy petition by the debtor-spouse cuts off any interest in that property. In Re Hoyo, 340 B.R. 100 (Bankr. M.D. Fla. 2006). Conversely, the debtor’s right to receive property from the non-debtor becomes property of the debtor’s estate. Partial ownership with respect to property, such as joint tenancy, belongs to the estate of the debtor in a bankruptcy proceeding. Also belonging to the estate is any property acquired by way of inheritance, property distributed to the debtor through a settlement agreement with the non-debtor spouse, as well as property obtained through a final divorce decree within 180 days after the filing of a bankruptcy petition.
Debtor Must Pay Domestic Support Even in Bankruptcy
Upon the filing of a bankruptcy petition, any efforts or actions to collect debts owed to creditors are strictly barred by what is known as an “automatic stay.” The BAPCPA, however, provides exceptions to the automatic stay in that debtors must continue to meet any outstanding Domestic Support Obligations (DSOs). The Bankruptcy Code defines what constitutes as a DSO and establishes four elements that the obligation must meet to qualify as an exception under the BAPCPA.
Legal Definition of Domestic Support Obligations
- the payee of the obligation is either a governmental unit or a person with a particular relationship to the debtor or to the child of the debtor
- the nature of the obligation must be support
- the source of the obligation must be an agreement, court order, or other determination
- the assignment status must be consistent with Paragraph (D).
Non-Debtor Spouses Given Priority Over Most Other Creditors
In bankruptcy, non-debtor spouses who have met these requirements are given priority over most creditors when it comes to debt collection. Furthermore, these individuals’ claims are deemed non-dischargeable under both Chapter 7 and Chapter 13 of the Bankruptcy Code. The non-discharge-ability of these claims is dependant on whether the obligation is found to be “in the nature of support.” Federal bankruptcy law determines whether an obligation meets this particular standard.
A Few Factors Considered in Determining Nature of Support
- Is the obligation is assumed?
- What are the terms of a final divorce decree?
- What is the earning potential of each party?
- Is the obligation is considered rehabilitative to one spouse?
- Is the obligation is subject to a contingency such as remarriage?
- Are minor children are in need of support?
These are just some of the items the court may consider, among others.
Consider Implications of Bankruptcy on Divorce and Support Obligations
As divorce and bankruptcy filings are often intertwined, parties must understand the consequences that come along with opting to file for bankruptcy. It is particularly important to understand the relationship between bankruptcy filings and the obligation of a debtor to continue to meet their Domestic Support Obligations pursuant to the Bankruptcy Code. Such obligations are considered non-dischargeable debts in Chapter 7 and Chapter 13 bankruptcy proceedings.
Questions? Robert E. Hornberger, Esq. PC Can Help
The Nassau County and Suffolk Count Divorce Attorneys of Hornberger Verbitsky, P.C. have a great deal of experience representing both sides during a divorce with bankruptcy and have strong relationships with bankruptcy attorneys who deal with bankruptcy on a daily basis with whom we consult. If you have questions about your or your spouse’s bankruptcy and how that will affect your divorce, child support or spousal support, please give us a call at 631-923-1910 or fill out the short form on this page for a complimentary consultation and we’ll be happy to help.
by Robert E. Hornberger, Esq | Nov 21, 2013
Child Custody determinations are a special form of legal dispute in Nassau County and Suffolk County, Long Island, NY. Although there are two official parties to the legal dispute, often the mother and the father, the unofficial third party that is the main concern of the controversy is the child. Because the child is the main concern of the courts, the method used by most states in resolving child custody disputes is what is known as the “best interests of the child” standard. Because this standard only considers the implications on the child as a neutral third party, it is technically neutral and does not favor either the mother or the father in the dispute.
Is the “Best Interests of the Child” Standard Really Neutral?
Many professionals in the legal field would answer that the current “best interests of the child standard” is not actually neutral in practice. Statistical evidence shows that custody is disproportionally awarded to the mother of the child in most disputes. Statistically, the courts seem to believe that the mother is more often than not the party best suited to care for the child. If this were intrinsically true, there would be no dispute that awarding custody to the mother was always in the best interests of the child. In actuality, however, this is not always the case.
Why Gender Bias in Child Custody on Long Island, NY?
There are several reasons why this gender bias exists in child custody disputes.
- First and foremost, the standard used to determine custody is problematic.
- General public sentiment, and historical judicial sentiment, seems to favor mothers as guardians.
- The combination of the two creates a situation forcing the father to disprove a presumption that the mother is the better guardian, which makes it much more difficult for a father to win custody of his child.
‘Best Interests’ Standard Enables Too Much Flexibility?
Allowing courts to use the best interests of the child standard is beneficial, as it allows for flexibility in child custody decisions. Custody disputes are complicated and unique situations. Allowing judicial discretion in a standard allows the courts to tailor decisions to each unique circumstance. However, this flexibility may also be the downfall of the “best interests of the child” standard. Because a flexible standard lacks objective elements or factors, the ultimate determination lies in the opinion of the individual adjudicating the dispute. Consequently, if a judge, mediator, etc. lacks objectivity; it is his or her opinion that decides the fate of the child.
Discretion Favors Mothers over Fathers in Child Custody Disputes
Such wide discretion would not be problematic if public and judicial sentiment with respect to custody matters were different. However, the general public outlook on custody-related matters seems to be that mothers are naturally better caretakers to their children than fathers. Furthermore, a history of judicial decisions shows that judges share this particular attitude with the public as well. Some courts have even explicitly stated that if all circumstances were equal between the mother and the father, the mother should be awarded custody. Matthew B. Firing, In Whose Best Interests? Courts’ Failure to Apply State Custodial Laws Equally Amongst Spouses and Its Constitutional Implications, 20 Quinnipiac Prob. L.J. 223, 249 (2007). This effectively creates a rebuttable presumption that the mother, all other things being equal, is the better caretaker. As a result, instead of being judged by an equal standard, an unfair burden of proof is placed on the father in custody disputes. With a presumption that the mother is the better custodian, the father is placed in the position of having to prove that the mother is an unfit parent. The “best interests of the child” are considered, but in a different way than intended. The judge is not actually considering, objectively, which parent provides the best situation for the child, but whether the father has proven that the mother is unable to provide the best possible environment for the child.
Gender Bias Due Process Claims Unsuccessful
In addition, gender-biases in child custody determinations implicate several constitutional issues under the Equal Protection Clause and the Due Process Clause. Courts have interpreted the Equal Protection Clause to apply to gender-based inequalities, and the Due Process Clause to protect a fundamental right to privacy in family matters. Child custody has been assumed to be a fundamental right under the Due Process Clause. Although these clauses may seem to give legal merit to a father’s challenge of gender bias in the best interests of the child standard, these challenges have been historically unsuccessful.
“Best Interests” Standard Not Fairly Applied to Fathers
Gender bias in child custody disputes is prevalent, as mothers are awarded custody of their children disproportionately more than fathers in judicial proceedings. While the “best interests” standard is a good method to gauge the best environment for the child involved in a custody dispute, the standard is not always properly and fairly applied by the courts. Therefore, it may be time to reevaluate our societal outlook on child custody and make some real changes that would result in more equitable decisions for fathers.
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.
Long Island, NY Child Custody Questions?
Call Us. We’re Here to Help in Nassau & Suffolk
The law firm of Robert E. Hornberger, Esq. P.C. has regularly and successfully represents both mothers and fathers in Child Custody disputes in Nassau County and Suffolk County courts on Long Island. If you have questions about your Child Custody case, give us a call at 631-923-1910 or fill out the short form on this page for a free, complimentary consultation where we can discuss your case and advise you on the best way forward. We’re here to help.
by Robert E. Hornberger, Esq | Nov 7, 2013
As a divorce attorney working on Child Custody cases in Nassau County and Suffolk County on Long Island, NY, I’ve seen first-hand that following the dissolution of a marriage, it is not uncommon for former spouses to relocate away from the marital neighborhood. There are as many varied reasons for this as there are people: some wish to pursue other career opportunities, while others choose to move closer to family and friends in order to re-establish a support network post-divorce.
Heated Disputes over Child Custody
While it’s perfectly natural and understandable that people want to, or have to, move, it can become an issue when the former spouses have children together. Although many parents have their children’s best interests in mind when making the decision to relocate, choosing to do so often leads to heated disputes between the parents regarding Child Custody. It can become most heated when the moving parent is the one who has custody of the child or children. That parent feels as if they should be able to relocate freely, while the other parent may feel that the access they have to their children should not be compromised. Consequently, the relocation of one parent frequently triggers the filing of petitions for modification of child custody orders. In order to address the issue of parent relocation, many states consider what is in the best interests of the child.
Relocation May Require Modification of Child Custody Agreement
In the 2002 issue of the American Law Institute (ALI) Principles on the subject of parental relocation, the guidelines suggested that relocation should not be considered a substantial change in circumstances warranting the modification of a child custody order. However, the ALI acknowledged that there should be a general exception to this standard where the relocation of the parent would “significantly impair” the visitation arrangement had between the parties. The Principles also establish, however, that a parent should be allowed to relocate if that parent engages in “the clear majority of the custodial responsibility,” and has a valid reason for the relocation. The ALI provides a list of examples as to what should constitute valid reasons for relocation.
Some Valid Reasons for Relocation:
- Pursuit of career opportunities
- Educational opportunities
- Relocating after remarriage
New York Puts Restrictions on Relocation
Presently, many jurisdictions, including New York, have departed from the notion that parents should be able to relocate freely, and have instead opted to determine matters of relocation on a case-by-case basis. The New York Court of Appeals case, Tropea v. Tropea, for instance, stated that, “each relocation request must be considered on its own merits … with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” 665 N.E. 2d. 145, 150-51 (N.Y. 1996).
Less than Half of All Relocation Requests Granted by Courts
In the article, Still Partners? Examining the Consequences of Post-Dissolution, Professor Theresa Glennon addresses the topic of which approach to parental relocation ought to be adopted by all states. Glennon points out that very few states assess the interests of the parent seeking relocation. However, she notes that there are some states that will take the parent’s interests into consideration, as the parent’s wellbeing will ultimately have a large impact on what is in the best interests of the child. In many long distance relocation cases, courts are extremely reluctant to grant permission to the party seeking relocation and have in more cases than not, declined to do so. According to Glennon, “Courts granted permission to move in slightly fewer than half-forty-nine percent of the cases [studied] in which a final decision was made.”
Best Interests of the Child Must Be Considered in Relocation Requests
In assessing the best interests of the child standard, all jurisdictions express mixed feelings as to whether children should be relocated away from one of their two parents. Courts have taken into consideration parental happiness, presuming that this factor ultimately benefits the child. However, courts also consider the alternatives that would bear the least detriment to the child’s psychological wellbeing and development. Therefore, many jurisdictions require the relocating party to meet a high burden of proof to establish that moving would be in the best interests of the child. The burden then shifts to the non-relocating party to prove the contrary; that relocation would not be in the child’s best interests. The primary residential custodian often has a fundamental advantage in terms of meeting the burden of proof necessary for relocation in many jurisdictions.
Best Interests of the Child Difficult to Determine in Relocation
It is very common for parties to relocate following a divorce. However, relocation can become very difficult when Child Custody is involved. Parents hoping to rebuild their lives post-divorce feel as if they are entitled to relocate freely, while non-relocating parents feel that the relocation of the other parent would substantially inhibit their ability see their children and be involved in their lives. In order to address this issue, many jurisdictions utilize the best interests of the child standard, although it is not always clear how that is best determined.
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.
Give Us a Call; We’re Here to Help Your Nassau, Suffolk, Long Island, NY Child Custody Case
The Long Island Divorce and Family Law Attorneys at Hornberger Verbitsky, P.C. are experienced divorce, family law and child custody attorneys. If you have any question about your rights as a parent and child custody, we’re here to help. Give us a call at 631-923-1910 or fill out the short form on this page to schedule a free consultation where we can discuss the specifics of your case and help you determine how to best move forward.
by Robert E. Hornberger, Esq | Jul 18, 2013
Contrary to popular belief, Joint Child Custody is not the standard on Long Island or in New York State. This fact often leads to Contested Child Custody cases in Nassau County or Suffolk County Court when both parents seek Sole Child Custody.
The Role of the Forensic Evaluator in Contested Child Custody
When both parents seek custody of the child the standard in Nassau County and Suffolk County Courts is to act in the “best interests of the child.” Often, the court will appoint what is known as a Forensic Evaluator or other mental health professional to help determine the best interests of the child. The forensic evaluator can be a psychiatrist, psychologist, or social worker. The forensic evaluator will meet with nearly everyone in the child’s life, including but not limited to:
- The child him or herself
- The child’s siblings
- The child’s parents
- Friends of the parents
- Any other mental health professionals with whom the child may be involved
The evaluator will meet with the child alone and also observe the child interacting with each parent. The evaluator plays a very important role in determining the best interests of the child because the court will often weigh the forensic evaluator’s report heavily in its determination of what is in the best interests of the child.
Controversy Over Forensic Evaluators in Nassau & Suffolk County Courts
The forensic evaluator’s role in the child custody process on Long Island has become increasingly controversial. The forensic evaluator’s report can have tremendous influence upon the judge’s ruling and the forensic evaluator can be called as a witness in the child custody proceedings. However, the attorneys for either parent are not permitted to speak with the evaluator and attorneys argue that there is no consistent standard for how much access either side in the Child Custody case can have to the reports.
3 Legal Challenges to Create a Consistent Standard
Recently, there were three major proposals presented to the Office of Court Administration, which is the office in control of the rules regarding access to the reports by attorneys and their clients. The three proposals came from the New York State Bar Association (NYSBA), the Family Court Advisory and the Family Court Advisory Rules Committee (FCARC), and the Matrimonial.
NYSBA Proposal: Everybody Gets a Copy
The NYSBA proposes that counsel for each party and counsel for the child are each permitted to receive a copy of the report and the report remain confidential. In addition, NYSBA proposed that the court have the discretion to permit each party to have a copy of the report to read and take notes on in a secure location. If the party had counsel this would be done at the attorney’s office and if the party were a pro se litigant it would most likely be done at the courthouse.
Matrimonial Committee Proposal: Further Non-Disclosure
The proposal by the Matrimonial Committee is similar to the NYSBA proposal; with an additional step requiring counsel for each party to execute an affirmation of further non-disclosure. If a party is unrepresented they will also have to execute an affirmation of further non-disclosure.
FCARC Proposal: Case-by-Case
The FCARC proposal takes a case-by-case basis approach, where the court will determine how much access the parties will have to the report and it will be applied equally to each party as well as parties without counsel.
FCARC Favored
There is heavy favor for the case-by-case approach submitted by FCARC because it allows for the most judicial discretion and flexibility, but the Office of Court Administration has stated it is unsure when a decision will be made.
Outcome will Effect Parents and Children on Long Island
In any event, this is a serious development in Contested Child Custody cases in Nassau County and Suffolk County courts on Long Island whose outcome will affect parents and their children for years to come.
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.
We’re Here to Help with Child Custody in Nassau County and Suffolk County
The Long Island Child Support Attorneys and Child Custody Lawyers at Robert E. Hornberger, P.C. have successfully assisted many families in Nassau County and Suffolk County with their Child Support or Child Custody cases. Contact us at 631-923-1910 or fill out the short form on this page and we will be happy to demonstrate how we can help during a free consultation.
by Robert E. Hornberger, Esq | Jun 20, 2013
Actions Now Can Affect Your Child Custody in Nassau County & Suffolk County Courts
As Divorce Attorneys practicing on Long Island, we see many critical mistakes that occur at the beginning or before a divorce case is even filed that put many parents at a disadvantage when it comes to their ability to have Child Custody with their children when the divorce is finalized.
Long Island Child Custody Mistake #1
One of the biggest and most common mistakes a parent living in Nassau County or Suffolk County can make is to move out of the marital/joint residence and leave your child with the other spouse. This essentially gives away custody to the residential parent. If want to retain custody of your child or children, you cannot move out of the home without your child, period. No matter how bad the situation is with your partner, in the Nassau County or Suffolk County court system, if you leave without the child, you essentially give up Child Custody.
Long Island Child Custody Mistake #2
If you do decide that you must move out of the joint residence with the children, make sure you get your spouse’s consent to do so. This does not necessarily have to be a formal written agreement; you can simply ask your spouse in an email to respond to your request to move out with the children. If your spouse consents via a reply email, it amounts to a virtual statement by your spouse that you are the child’s or children’s primary caregiver.
Long Island Child Custody Mistake #3
Conversely, if you are the parent remaining in the marital home and you give permission to your spouse to leave with the children, you are telling the Nassau County and Suffolk County courts that your spouse is the child or children’s primary caregiver.
Protect Your Child Custody Rights Now
As experienced divorce attorneys practicing on Long Island, we recognize that preventing your spouse from moving out of the marital home with the children is more difficult to control than staying in your residence, however, there are steps you can take to protect your Child Custody rights. First, as soon as it is clear that you and your spouse are getting divorced, make it absolutely clear to your spouse that it’s not okay with you for them to take the children. This too can be done through texts and emails. Make it clear that your spouse is free to leave the marital home, but your children must remain until your divorce and child custody case is fully resolved.
File for Divorce Early in Nassau or Suffolk County Court to Protect Yourself
As soon as you realize that your marriage is ending, it is a good idea to file for a divorce. The filing of a divorce petition, protects your Child Custody rights, should your spouse attempt to move out of the joint residence and take the children without your consent. With a pending divorce case, you will have the right to seek emergency relief requesting that the children be returned to their home. Of course, in such a case, it is important to have a record that you do not consent to the other spouse removing the children from their home.
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.
We’re Here to Help with a Free Consultation
The Long Island Child Support Attorneys and Child Custody Lawyers at Robert E. Hornberger, P.C. have successfully assisted many families in Nassau County and Suffolk County with their Child Support or Child Custody cases. Contact us at 631-923-1910 or fill out the short form on this page and we will be happy to demonstrate how we can help during a free consultation.
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.
