If you or someone you know is a victim of domestic violence contact the city or state hotline at 800-921-4673 or 800-942-6906 respectively.

         In observance of October as Domestic Violence Awareness month, I have listed a set of laws that were passed this year specifically aimed at those victimized by domestic abusers.  Although New York’s legislators have made some strides, there is still a very long way to go.  Out of more than a couple dozen bills presented to the legislative body, these are the ones that actually passed both the Assembly and the Senate.  Here is the list:           

          Expanding Family Court Orders of Protection Allows all victims of domestic violence the right to seek a civil order of protection through the state Family Court System. Previously only married parties, parties with a child in common, or those related by blood or marriage were able to go to Family Court for a civil order of protection.  This amendment now avails those who merely had a relationship, whether they lived together or not, to go to Family Court.  (A.11707)          

         Merit Time for Domestic Violence Survivors Allows domestic violence survivors incarcerated for committing crimes against an abuser, as a direct result of the abuse suffered, to earn merit time and participate in temporary and early release programs.  Prior to this new law, only non-violent offenders were able to participate in temporary release programs.  This law serves to enable convicted and incarcerated defendants who suffered from domestic abuse the opportunity to rejoin society a lot sooner than other violent offenders. (A.6150)            

       Crime Victim’s Award This bill would help reduce financial hardships for crime victims by defining “necessary court appearances.” The bill would allow victims to be reimbursed for the transportation costs they incur while appearing in court proceedings related to the prosecution of their attackers. The crime victim compensation was previously narrowed to certain out of pocket expenses, i.e. medical costs, cost of repair or replacement up to $500, cost for residing in a domestic violence shelter, loss of income and cost of attorneys fees before the board up to $1,000.  Now transportation costs to court are included so this is no longer a deterrent for a victim to cooperate with the District Attorney’s office in prosecuting their abuser/attacker.   (A.6675)            

        Banning Plastic Knuckles This law adds plastic knuckles to the list of illegal and dangerous weapons. This broadens the list of weapons that causes serious physical injury. This law makes it possible to charge the abuser with possession of a dangerous weapon in addition to assault, battery, manslaughter or murder.  (A.10522)                  

          Orders of Protection and Gun Ownership Requires a judge, who is presiding over a criminal or family court proceeding, to inquire as to the possession of a firearm by a defendant under an order of protection. Although many judges inquired whether the alleged offender possessed any firearms, all too often many overlooked this important query.  Now this inquisition is mandatory.  (A.1497)    

      Creating a Criminal Penalty For Obstructing A Call for Emergency Assistance This law establishes that an act to intentionally prevent a person from making a call for emergency assistance is a crime. The measure is aimed at preventing domestic violence. This is now a misdemeanor crime, where previously it might have been considered when there were other charges against the abuser.  (A.614)

It is our duty to our family, friends, colleagues, neighbors who suffer at the hands of their abusers, whether it be physical, emotional or economic abuse to become active and remain proactive in affecting change.  This means keeping abreast of the bills being presented and contacting our local and state officials to ensure that all that can be done is in fact done to save these victims.

Feel free to contact my office to discuss your domestic violence case or any other family law issue.

          I wanted to get the word out about this very important workshop that is being  sponsored by the Real Dads Network.   This program is a comprehensive program focusing on the issues that many unemployed and underemployed dads are facing.  This topic is very important because as many of you know from reading my blogs, non-payment or inconsistent payments of child support can have some very dire consequences.  And given the unfortunate circumstance of not being able to hire an attorney, many pro se fathers wind up being incarcerated for a period, losing their job, their home, etc.  This program will provide some very vital information and resources for fathers, young and old, on where and how to seek help when faced with these tough issues.

                  Here is the information:

                 Dads Embracing Fatherhood (DEF) Fatherhood Initiative program “Where Attitude Counts”!

                        Contact person: Theresa Dobie at 718-302-2057 ext. 202

                        Start date: Thursday, October 16, 2008, 6-9 pm and every  following Thursday for 10 weeks at the same time. Location: 790 Broadway, 2nd floor, Brooklyn, NY.

                        Incentives Provided: intensive case counseling, court advocacy, education on child support & Family Court system, relationship workshops, financial literacy workshop, family mediation and parenting workshops, money stipends totaling $250.00, carfare allowance and dinner provision for each workshop.

                      Requirements: Be unemployed or under-employed at the time of enrollment, have a current child support order, age limit 45 and under, must provide documentation for all requirements, able to commit to 10 week workshop schedule.

  For those of you that attend, please contact me directly to let me know how it helped.

          If there are legitimate concerns of abuse or neglect, it should never be ignored.  Speak to your child’s pediatrician or medical provider to discuss the signs or symptoms of abuse or neglect before making such allegations public.  If your concerns are substantiated then reporting them to Child Protective Services and the authorities should be the next step.

          In keeping with the tone heightened by Alec Baldwin’s recent campaign to bring awareness to the plight of parental alienation, I decided to address recent legislation signed into law in New York this month concerning child custody and visitation and the impact of parental alienation.
   
          It is no secret that one the factors, amongst the several, the courts consider in making a determination in child custody cases is whether the parent seeking custody has abused or neglected the child.  However, the mere allegation of child abuse or child neglect or the existence of a report with the statewide central registry is not necessarily enough to substantiate a claim of child abuse or neglect and is viewed differently in child custody cases.  The adversarial parent may report false claims as a deliberate move to bolster his or her position in a custody proceeding.  As a result, the law states that an admissible report made to the central registry must have allegations that were investigated, noted as a reported allegation that is supported by some “credible evidence” and must be marked as an “indicated” finding.  This is to minimize the adversarial parent’s ability to benefit from entering into evidence of an “unfounded” finding or false claims of child abuse or neglect that they reported merely to sabotage the other parent’s case.

         On the other hand, a false allegation of child abuse or neglect is also a factor considered in custody proceedings by the court when making the determination of “the best interests of the child”.  However, this factor is not the sole factor and therefore may not be determinative of which parent is the more “fit” parent.  As a matter of fact, there have been several instances where not only the judge and the law guardian downplayed the profound effect false allegations of child abuse has on children, but I have seen court appointed experts recommend that custody be awarded to the parent who blatantly used manipulation and conniving tactics to create a wedge between their child and the other parent, totally disregarding what this does to the child.

         Interference with a child’s relationship with the other parent is also a factor given some weight in child custody proceedings.  Courts typically view a parent who consistently and deliberately interferes with the child’s visitation with the other parent as a strong indication that that parent is “unfit”, holding that such behavior is wholly antithetical to what is in the best interests of the child.  Nonetheless, courts do vary as to how they address a parent who willfully interferes with parent-child visitation, imposing sanctions ranging from ordering additional visits to civil contempt of court charges, depending on the circumstances of the particular case.

          Unfortunately, there are still plenty of naysayers who believe that parental alienation does not exist, that it is just propaganda.  These disillusioned folks believe that parents conveniently made up this theory to create some sort of “footing” in an arena where they would normally not have a chance.  They also believe that spreading such a notion only hurts children, causing parents who have legitimate concerns of child abuse or neglect to remain reticent, thereby perpetuating the abuse.  NYS Assemblyman Bing was the original supporter of the bill, which was signed into law on September 4, 2008.  This is the new amendment to Domestic Relations Law Section 240 which reads as follows:

       “…If a parent makes a good faith allegation  based  on  a reasonable  belief  supported  by  facts that the child is the victim of  child abuse, child neglect, or the effects of domestic violence, and  if that  parent  acts  lawfully  and  in  good  faith  in  response to that reasonable belief to protect the child or seek treatment for the  child, then that parent shall not be deprived of custody, visitation or contact with  the  child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable  actions  taken  based  on  that belief.  If  an  allegation  that  a  child  is abused is supported by a preponderance of the  evidence,  then  the  court  shall  consider  such evidence  of  abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to  that child…”
         The justification behind this law was that the reality of losing a child in a custody proceeding merely based on an allegation of child abuse would have a “chilling effect” and can lead to continued abuse.  The law seeks to impart fairness to contested child custody proceedings to parents who would otherwise be penalized for reporting child abuse even if there was no proof.  In practical terms, this law is superfluous because a recent review of courts’ decisions in child custody proceedings in New York show that judges are still reluctant to order custody or a change in custody based solely or primarily on the fact that there were false allegations of child abuse or neglect.  Even in cases where the court appointed experts indicate that there are concerns of the emotional or psychological impact of such capricious antics, judges will go to the extreme to find that same parent the more “fit” parent and award custody to him or her.  I have witnessed judges employ a myriad of tactics to justify the levity or lack of emphasis on the existence of parental alienation or interference in many cases. And whether it is because they don’t believe it is as serious as some make it out to be, they have their own biases about the mother as custodial parent as opposed to the father, etc.  the fact still remains that it is often ignored.  Furthermore, a new law that only serves to give the courts another means of justifying their decision to downplay the presence of parental alienation and its impact on parent-child relationships is certainly something we could all do without.

          Feel free to contact my office to discuss your family law case.

          When obtaining a court order for child custody or visitation it is important to have the court include that the custodial parent is not to relocate out of the state or that they are to remain in a specified region.  This will limit the custodial parent’s ability to make unilateral decisions about where the child will live, even in sole custody cases.

          Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their “habitual residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.

          If you are the noncustodial parent living in New York and the child lives in another state if it crucial that you “register” any child custody or visitation orders in the state that your child lives in.  This will put that state on notice of the parameters of the order in the event you must seek enforcement or modification.

           Oftentimes I am asked about jurisdiction when either parent  and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order.  Although there are many instances where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but then something happened to spark a modification or enforcement in the current custody order. 

           New York, as well as many other states) has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”) in 1999, which became effective in 2002.  This statute aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state  to avoid another state’s jurisdiction.  The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question of jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions for custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state.  These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent);  or where the child is in New York and there are concerns of abuse or neglect .  These are all scenarios that warrant the application of the UCCJEA.

          The UCCJEA sets forth alternative methods of asserting jurisdiction, which are :  1)  where it is in the best interests of the child based on the “significant connections”  to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.  Let’s take a look at each of these:

           Scenario 1:  This section only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

         Scenario 2:    This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed.  In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced (by the child protective services) that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

          Scenario 3:  This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists).  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from NY, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

         Scenario 4:  This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction). 

         When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

           Feel free to contact my office to discuss your family law issues.

          The outcome of a family law case and a criminal case arising out of the same facts and circumstances may directly, or indirectly, affect each other.  A Family Court judge will want to know the District Attorney’s position on a companion criminal case, to help make a determination regarding issues ranging from child visitation to abuse/neglect.  And although the District Attorney’s office may not have such an interest, it is advisable to keep your attorney (as well as the prosecuting attorneys) aware of what is going on in the other case.  Additionally, it is ideal to have the same attorney representing you on both cases if possible in an effort to consider all possible resolutions.