Louis Simonetti & Associates : August 2014

Tuesday, August 26, 2014

Custody and Attorney for the Children

An appeal from an order awarding sole custody of the parties’ two children to Petitioner Father, with liberal visitation to the Mother. The Mother asserted that the Family Court erred in its determination because it failed to appoint separate counsel for the children when the parties’ son expressed a desire to live with his mother when it was not consistent with the daughter’s expressed wishes.

The Mother believed a separate attorney for her son should be appointed due to the son’s differing view on where he wished to reside. The Attorney for the Children (AFC) was previously informed by both children that they wished to continue living with the father, whom had been granted temporary custody. However, during the trial, the son (9 years old) communicated that he wished to live with the Mother because “he can stay up late and he doesn’t get in trouble” at her house. Under normal circumstances, the AFC “must zealously advocate the child’s position.” As long as the child is “capable of knowing, voluntary and considered judgment, the [ATC] should be directed by the wishes of the child.”

This can be the case even if the ATC “believes that what the child wants is not in the child’s best interests.”

However, this situation shifted from that norm. The Appellate Division said that where an AFC is convinced that “the child lacks the capacity for knowing, voluntary and considered judgment or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child,” the AFC would be “justified in advocating a position…contrary to the child’s wishes.” As such, a Nassau County Family Law Attorney said the AFC disregarded the son’s wishes as “immature” and therefore “not controlling.” A Lincoln Hearing was subsequently held and the Court went on to deny the Mother’s request for the appointment of a new AFC for the son. Sole custody of both children was subsequently awarded to the Father.

The Appellate Division reviewed the transcript of the Lincoln Hearing and determined the Family Court “properly denied the mother’s request to appoint separate counsel for the son.” Due to the confidential nature of the Lincoln Hearing, the Appellate Division could not state the reasons for its determination in its opinion.

There are times in custody proceedings involving multiple children that one or more of the children wish to live with a parent that does not retain custody. In such a situation separate counsel may be appointed for that child(ren). As a parent it is important to understand the process of a custody proceeding. The experienced Family Law Attorneys and winners of the Best of Long Island for Best Law Firm at Simonetti & Associates can help guide you through.

We have been voted Best Divorce Lawyer in Nassau County and Best Divorce Lawyer in Suffolk County by the Best of Long Island Program. Thank you to the readers of the Long Island Press and our fans for helping us reach this status as the Best Divorce Attorney on Long Island two years in a row.

Are you thinking about getting a divorce? Call us today for a free consultation (877) 385-2560

Prenuptial Agreement and Marital Residence

Long Island’s Best Divorce Lawyer in Nassau County said this appeal is from an order which denied the Plaintiff’s motion seeking a determination that he is entitled to $143,000.00 from the sale of the marital residence located in Indiana. The Plaintiff claims he was entitled to the sum because it was a contribution from separate property.

The two parties were married in New York, but subsequently settled in Indiana. A prenuptial agreement was entered into by the parties. The Defendant filed the divorce action in Indiana. While the divorce action was pending the Plaintiff commenced an action in New York seeking “a determination of his separate property and the parties’ marital property pursuant to the terms of the Agreement.” Under New York law, a spouse is “entitled to a credit for his or her contribution toward the purchase of the marital residence.” This would include the Plaintiff’s contributions which would be “directly traceable to separate property.” Despite the fact the parties held the title jointly as a marital residence the Appellate Division reversed the Supreme Court.

For individuals that wish to protect their personal assets in the event of a divorce a prenuptial agreement is advisable. The experienced attorneys at Simonetti & Associates are here to assist you in the process of drafting such a document.

Tuesday, August 5, 2014

Non-Parent and Child Custody

Long Island’s Best Divorce Lawyer said this was the appeal of an order of the Family Court should awarded sole custody to a nonparent. Appellant Mother brought the appeal on the grounds the Family Court erred in making its decision by failing to conduct an evidentiary hearing to determine whether extraordinary circumstances existed. The Appellate Division reversed the order and remitted the matter to the Family Court for the requisite evidentiary hearing.

When a nonparent is seeking custody of a child the parent has a superior right to custody that cannot be denied. A nonparent can obtain custody only by establishing that the parent has relinquished that right as a result of surrender, abandonment, persisting neglect, unfitness or other extraordinary circumstances. A Nassau County Child Custody Lawyer said the nonparent must first prove extraordinary circumstances exist and then the court will address the issue of the best interests of the child.

The Appellate Division ultimately found the Family Court “deprived a biological parent of custody of her children without the…[requisite evidentiary] hearing’ on the issues of extraordinary circumstances and best interests.” Long Island’s Best Divorce Lawyer said the Appellate Division looked at the specifics of the Court’s approach. When the parents were asked if they were calling any witnesses to testify on their behalf the parents said that only they were testifying. The Court then stated that there was “no triable issues of fact and granted the nonparent’s petition for custody.” By doing this the Family Court “failed to place the burden of proof on the nonparent to prove that extraordinary circumstances exist[ed]”.

Each family’s circumstances differ and sometimes a child living with a nonparent is in the best interest of the child. If you have a similar situation seek out the advice of the experienced family law attorneys at Simonetti & Associates.