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5 Common Pitfalls to Avoid In Your Child Custody Case

Writings on Legal Matters

5 Common Pitfalls to Avoid In Your Child Custody Case

Child custody proceedings are difficult and stressful for both parents. With emotions running high, parents often unwittingly make poor choices that adversely affect both their children and their case. While not exhaustive, here are some common pitfalls to avoid in your child custody proceeding:

1. Denigrating or Disparaging the Other Parent

The courts recognize the obvious: that children thrive best when they have a healthy relationship with both parents. Nothing undermines that relationship more than when one parent one parent repeatedly denigrates or disparages the other to the child or otherwise pressures the child to choose sides.

Judges have seen it all before and are well aware of the profound and long-lasting damage that this type of behavior can have on a child’s emotional development and long-term well-being.

As such, the courts have consistently maintained that one of the primary responsibilities of the custodial parent is to foster and facilitate a relationship between the child and the other parent, so much so that a parent’s inability or failure to do so creates a presumption that that parent is unfit to have custody of the child.

2. Manipulating the Child’s Preferences

Similarly, some parents may use a variety of tactics to influence the child’s decision or preference about with whom the child wants to live. This could include spoiling or bribing the child, or more overtly, encouraging the child to express their preference to the appointed attorney.

This type of behavior is unhealthy for the child and typically backfires on the manipulating parent when it is often picked up by the child’s attorney and the Court, who, again, have seen it all before.

3. Absence in the Child’s Life

Judge’s view a parent’s past-involvement in the child’s life as the best indicator of future involvement. As such, it is important for parents in custody cases to remain active and involved in their children’s day-to-day activities and major decisions (medical, education, extracurricular, etc.).

A parent’s continued involvement is what is best for the child and what is best for their custody case.

4. Illicit Use or Abuse of Drugs
When allegations of drug and alcohol abuse are made, Judge’s will typically order that both parties be tested. Should the result come back positive, the parent found to have used drugs or alcohol must then defensively argue that his or her drug and/or alcohol use is limited in nature or controlled and does not occur when the child is in his or her care. This is a surefire way to lose your custody case.

5. Lack of Stability and Poor Decision Making

Courts do not look favorably on parents who make hasty or detrimental decisions. This could include prematurely introducing the child to a paramour or significant other, removing the children from their school or daycare program, or arbitrarily changing residences. Doing so only compounds the instability of the child’s life—making it increasingly more challenging.

Divorce and custody disputes are very difficult for families. It is important for parents to always keep their children’s best interest in mind—particularly as it pertains to actions and decisions during the transition.

Top Divorce Questions: Who Pays The Legal Fees?

Writings on Legal Matters

Top Divorce Questions: Who Pays The Legal Fees?

{2:40 minutes to read} Almost every new client that consults with our firm for a divorce proceeding asks one of two
questions:

Does my spouse have to pay for my lawyer? OR
Do I have to pay for my spouse’s lawyer?

The answer comes as a surprise to most. The Domestic Relations Law has a rebuttable presumption that the “monied” spouse will pay the “non-monied” spouse’s attorney’s fees. The idea behind the law is to try and level the playing field when there is a big discrepancy between the incomes of the divorcing parties. After all, the law doesn’t want the person with less money to be at a disadvantage.

That being said, this is not simply a windfall for the spouse with less financial power, who at times thinks that they can litigate cost-free while their spouse pays the bill at the end. The “monied” spouse always has the opportunity to rebut the presumption that they should pay all legal fees by showing the Court that the other spouse has the ability to pay for their own attorney, or by showing that their spouse unnecessarily drove up the cost of the litigation.

Let’s say for example that the spouse earning substantially less money, or earning no income as a stay-at-home parent, has substantial assets, inheritance, or money available to him or her. He or she may have the ability to pay his or her own legal fees, and an award from the Court would not ‘level the playing field,’ but would instead provide an unfair advantage. So, while the starting point may be that a spouse without income is entitled to have his or her legal fees paid by the other spouse, equity and fairness should prevail once it is demonstrated to the Court that the same spouse is already on a level playing field because of other assets or circumstances.

On the other side, however, if one spouse truly does not have the income or assets to litigate with, the Court will level the playing field immediately at the commencement of the case, or even in the middle of the case, and the higher courts have held that it is an error when the trial court fails to “level the playing field.”

What is the best approach?

There are different strategies to use when approaching this issue, depending on which side you fall on. If there are liquid marital assets, we often get creative and try to split up one or more of those assets ahead of time. We recommend this approach to litigants on both sides, because it helps the “non-monied” spouse in that he or she will now have the funds with which to pay his or her attorney and for living expenses, and it also helps the “monied” spouse, who now may not have to pay his or her spouse’s legal fees because the other spouse has the financial ability to do so. This strategy also helps alleviate the need for one spouse to constantly ask the Court for additional money for legal fees and living expenses, and it alleviates the need for the other spouse to defend against such requests—thus reducing the cost of litigation for both sides.

Our approach actually helps both sides during the litigation, and the less that you pay in legal fees on these issues, the more money there is available for you and your spouse!

Please contact us today with questions or comments.

A Brief Introduction to New York Navigation Law 181

Writings on Legal Matters

A Brief Introduction to New York Navigation Law 181

“If your property has been damaged due to the spilling of petroleum/oil products, and if your life has been turned upside down as a result of the spill, we are here for you.”

The state of New York takes environmental safety very seriously, and has many laws on the books to help protect the Long Island Sound, lakes, rivers, and land in the area. New York Navigation Law 181 is an especially important law because it protects New Yorkers who become victims to an oil or petroleum spill that affects their home, business, or land. According to the law, a company that causes the spill will be heavily responsible for the spill. The law is quite severe to reflect the extensive and potentially long-lasting damage that these products can cause to the environment – and to the victims and their families.

Responsible Party

One of the most important things to be aware of when it comes to this law is that it applies to the responsible party/parties regardless of fault. This means that even when the oil company accidentally spills oil when delivering it to a home, the company is nonetheless responsible for cleaning it up and compensating the victim.

Overview of Potential Fines

The potential penalties associated with this law can be quite severe and must be taken very seriously. The specific amount will depend on many factors including the amount of petroleum products released into the environment, the amount of damage done, and the effect of the entire process on the property owner. There are various categories of damages that can be charged and recovered under this law, including:

  • Damage to Property – Any costs associated with restoring, repairing, and replacing damaged or destroyed real property in or around the home or business.
  • Diminished Value of Real Property – If the property has a diminished value as a result of the environmental disaster, the homeowner or property owner can be compensated for the decrease in value compared to the value as if the event had not occurred.
  • Natural Resources – Any costs associated with restoring or replacing any natural resources.
  • Loss of Income – If the damage resulted in the loss of income or earning potential for the owner of impacted property, the responsible party must repay this money.
  • Loss of Personal Property – This can include clothes, furniture, etc. that has been damaged as a result of the event must be replaced
  • And more…

Offering Aggressive Representation

If your property has been damaged due to the spilling of petroleum products, and if your life has been turned upside down as a result of the spill, we are here for you. Our legal team has the experience needed to handle these often very complex cases, and we understand the importance of getting it right. Please contact us at 516-352-2100 to schedule a free consultation today.

“You’ve Been Served”: What to Do If You’re Served Divorce Papers

Writings on Legal Matters

“You’ve Been Served”: What to Do If You’re Served Divorce Papers

Being served with divorce papers can be upsetting and stressful, or may just be a welcome and practical step towards ending a relationship. However you feel about being served divorce papers, there are certain things you must now do to move the process forward. This article talks you through each step.

  1. Read the papers carefully

Reading your divorce papers may seem like a no-brainer. However, it is essential that you take time and care when doing so to ensure that you fully understand the wealth of information they contain. Signing divorce papers without thoroughly reading them first could mean you end up agreeing to something that you actually object to.

Among other things, divorce papers should contain information such as where the action has been filed, the deadline by which the spouse must respond, and whether the spouse who filed the paperwork is acting alone or with the help of an attorney. The grounds for divorce, as well as information on important matters such as child support and custody and division of property, may also be laid out in these documents.

  1. Provide your response

The required response time is typically 20 days from when you were served with the papers, so you should check your divorce papers to make sure you know the deadline and ensure you provide your response before then. If you do not provide a response within the deadline, it is possible that your spouse could be granted everything they have requested in the papers, as not responding suggests that you are amenable to these requests.  Providing a response may be difficult without an attorney who can prepare the document, called an Answer, properly. This brings us to the next important step:

  1. Hire an attorney

The next thing you should do is hire an attorney. An attorney will help guide you through the process and can assist with drafting and delivering the response to your spouse. An attorney will help you go through the papers and respond to each numbered statement, providing as much information and reasoning as possible.

Legal counsel can ensure that you understand all your rights and options and that your rights are protected, particularly if the case becomes contested at a later date. If your divorce papers indicate that your spouse has employed the services of an attorney, it is even more imperative that you retain your own counsel so that both parties’ rights and interests are protected and fought for on even ground.

  1. Gather paperwork and documents

Documents such as pay-stubs, income tax returns, and recent bank statements are useful to have on hand. Other helpful documents include financial paperwork such as credit card statements, mortgage agreements, and statements from retirement and/or brokerage accounts. These documents will help an attorney ascertain where the income comes from and how assets will be divided.

  1. Protect your assets

Some individuals need to be careful about protecting their assets. If you are concerned that your spouse may try to take money from you, your attorney can and should issue an Automatic Restraining Order, to prevent either party from making unusual transactions, withdrawals, or take other steps that may harm you financially.

  1. Next steps

From here your attorney has two choices – to try and resolve the financials and custody issues amicably, or to ask that a Judge be appointed to the case to help you and your spouse.  If proceeding amicably and outside of the court, your attorney can set up a settlement conference with your spouse and his or her attorney. If you wish to go to Court, then your attorney will schedule a Preliminary Conference with the Court, during which you will meet the Judge selected for your case, who will make recommendations for settlement and oversee the process if a resolution cannot be reached.  Further, the Judge has the power at this point to direct that certain bills must be paid while the case is pending, how income should be shared between you and yourself, and who should pay the attorneys.

If you are looking for an experienced divorce lawyer to ensure that your rights are protected, call Sunshine Isaacson & Hecht, LLP at (516) 352-2100 for a confidential consultation, or e-mail us at jisaacson@sihllp.com

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