Louis Simonetti & Associates

Friday, September 12, 2014

Changing Circumstances and Child Custody

Long Island’s Best Divorce Lawyer said this was an appeal of an order granting Petitioner Mother’s (hereafter Mother) application to modify a prior order of custody. In this prior order, sole custody of the children was granted to the Respondent Father (hereafter Father) with visitation to the Mother. The Appellate Division subsequently affirmed the Family Court’s modification which “granted the parties joint legal custody of the children, with primary residential custody awarded to the mother and specified parenting time to the father.”

The Mother alleged that the existence of substance abuse and domestic violence in the Father’s home had escalated to the point where police involvement was required. The Mother also alleged that Father’s wife (hereafter the stepmother) had driven the children while “high.” The Appellate Division found the Father’s home had “descended into chaos” as the result of alcohol and substance abuse, while the Mother’s household became a safe and stable environment. A report of the Delaware County Department of Social Services (hereafter DSS) noted that the Mother no longer abused alcohol. The report noted that the Mother was remarried and relocated to the children’s current school district.

The standard for the modification of a custody order is whether there has been a sufficient change in circumstances that “reflect a real need for change in order to insure the continued best interests of the children.” The various factors a court looks at when determining whether modification is warranted include “the parents’ ability to provide a stable home environment for the children, the children’s wishes, the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the parent.” A Nassau County Family Law Attorney said that in this case the Mother made strides to improve her ability to raise the children. She had remarried and was able to provide a safe, stable and nurturing home, and had “become more engaged with the children’s educational and medical needs.”

In the event you wish to modify your custody order seek out the services of the experienced family law attorneys at Simonetti & Associates.

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

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.

Wednesday, July 30, 2014

Child Support in Arrears

Long Island’s Best Divorce Lawyer said this appeal was from an order of the Supreme Court which granted Defendant Wife’s motion for an order directing Plaintiff Husband to pay child support arrears and counsel fees.

An oral stipulation of settlement was entered into by the parties in December 1999 where the Husband agreed to pay the Wife child support for their three minor children. However, in 2011 the Husband moved for the stipulation to be vacated arguing it failed to comply with the Child Support Standards Act. The motion was subsequently denied and the Appellate Division affirmed. The Wife then moved for an order which would direct the Husband to pay arrears due and the Husband opposed the motion with an order to show cause by again arguing the stipulation should be vacated. This appeal followed.

A Nassau County Divorce Lawyer said the arrears had been granted without a hearing. The Appellate Division said a hearing was not required because the Husband had not submitted any evidentiary evidence which could dispute the amount he failed to pay nor support “his claim that the parties’ eldest daughter was emancipated or contesting the amount of counsel’s fees.” Therefore a hearing was not necessary.

On the Husband’s order to show cause the Appellate Division affirmed the Supreme Court’s denial on the grounds of res judicata. As the Appellate Division states, “[t]he husband had a full and fair opportunity to challenge the stipulation as part of his previous, unsuccessful motion and cannot now attack its validity based on defects raised either in his prior motion or for the first time in his order to show cause.”

If you are considering a divorce seek out the advice of the experienced divorce attorneys at Simonetti & Associates.

Wednesday, July 23, 2014

Nonparents and Child Custody

An appeal of an order of the Family Court awarding Petitioner Aunt sole legal and physical custody of Respondent Parent’s children, with visitation to the respondents (the mother’s visitation to be supervised). Petitioner brought the underlying petition to modify two existing custody orders which gave physical and legal custody of the younger child to the Respondent Mother and physical custody of the older child to the Aunt with visitation to the Mother.

In order for a nonparent to overcome a parent’s superior right to custody, the nonparent must meet the heavy burden of establishing extraordinary circumstances. The Court considers several factors in making such a determination including “as the length of time the child has resided with the nonparent, the quality of the child’s relationships with the parent and the nonparent, the prior disruption of the parent’s custody, separation from siblings and any neglect or abdication of responsibilities by the parent.” A Nassau County Family Law Attorney said because the trial court failed to address this issue the Appellate Division did so.

The Appellate Division ultimately found the Petitioner met her burden of extraordinary circumstances. The mother was experiencing dramatic health issues which affected her ability to care for the children. These were severe pulmonary issues which required the aid of oxygen. According to testimony by the Petitioner and partially corroborated by the Mother, the Mother would depend on the children to assist her with personal and health needs. The younger child had developed behavioral issues and would get into trouble at school as a result of the Mother’s condition hindering her ability to supervise. The Appellate Division held the Petitioner met her burden of extraordinary circumstances because it was evident “the mother neglected the younger child and/or generally abdicated her parental responsibilities by…placing the child with questionable caretakers while the mother was hospitalized, fail[ed] to provide adequate living conditions and proper dental care, requir[ed] the child to care for the mother’s health needs and repeatedly subjecting the child to stressful confrontations regarding her custody.”

A Long Island Child Custody Lawyer said that once the Petitioner met her burden of extraordinary circumstances, the Appellate Division went on to whether the custody modification would be in the best interest of the child. In light of the above facts and the relationship the children had with the Petitioner there was a sound basis to award the Petitioner with custody of bother children.

At times the best interests of a child may demand custody be awarded to a nonparent. If you have a similar situation as the case above or a parent that wishes to know their rights seek out the advice of the experienced family law attorneys and Best of Long Island winners at Simonetti & Associates , serving Suffolk County and Nassau County.

Monday, July 14, 2014

Child’s Education, Support and Divorce

An order of the Supreme Court denying Plaintiff’s motion for the modification of custody and enforcement of child support as outlined by the parties’ stipulation of settlement was appealed by Plaintiff. Long Island’s Best Divorce Lawyer said the Appellate Division affirmed the lower court’s decision and remanded the matter for a hearing regarding the issue of the child’s private school tuition.

A Nassau County Divorce Lawyer said the Plaintiff had failed to show sufficient evidence to warrant her modification request. The Court pointed out that just because the parties have differing views on education or extracurricular activities does not necessitate a custody modification. Both parties can still co-parent despite this fact. The parties have also included a procedure to handle disagreements in their stipulation of settlement. If such a procedure failed, the “parties reserved the right to resolve such matters in court.”

Long Island’s Best Divorce Lawyer said the Appellate Division affirmed the trial court’s ruling that the Defendant’s reduction in income and increased debts were sufficient cause to reasonably withhold consent for the use of out-of-network medical providers or the child’s enrollment in more than two extracurricular activities per semester. The trial court’s ruling to deny Plaintiff’s request for childcare cost reimbursement was also deemed proper as she did not submit evidence that those costs were incurred in order to enable her to work.

The parties’ agreement originally specified that the child would attend private school. This consideration along with the child’s long attendance at a private school chosen by the parties together, and the child’s “fondness for and outstanding performance at the school” the Appellate Division ordered the matter remitted to the trial court “to determine whether the Defendant unreasonably refused to consent to contribute to the cost of the child’s private school education.”

When finalizing a divorce it is sometimes difficult to anticipate all disagreements that could take place. Situations including child custody and alimony could lead to unexpected conflict. The experienced divorce attorneys and winners of Long Island's Best Divorce Lawyer at Simonetti & Associates can guide you through this process. Seek out their advice today.