New York Criminal Lawyer Blawg

Westchester County Family Court -- Custody Trial

Attorney David Sachs was able to obtain sole legal and physical custody, for his client, after a trial conducted over several days in the White Plains Family Court, Westchester County. Mr. Sachs represented the mother who filed a Family Court Petition to modify a previous custody Order of the Westchester County Family Court. The mother wanted sole physical and legal custody of the child.

The mother (Petitioner) testified that she and the father had an embittered relationship, the the father had threatened her and the father had been arrested twice for violating an existing Order of Protection.

Joint Custody Law

The Court found the law for joint custody demands that decisions regarding the welfare of the child be a reasoned determination of the parents and is premised on the notion that the parents are capable of and can engage in cooperative and civil communication Matter of Yetter v Jones, 706 NYS2d 782.

Also, the Court found that an existing custody arrangement established by agreement should be modified only upon a showing that there has been a change of cicumstances that makes modification "necessary to ensure the continued best intrest of the children" Eschbach v Eschbach, 56 NY2d 167. The Westchetser County Family Court also found that where the record has demonstrated that the parties' relationship is so acrimonious that it essentially precludes joint decision making an award of sole custody is appropriate and in the best intrests of the child. Matter of O'Connell v McDermott, 915 NYS2d 143. Lastly, the Westchester County Family Court found that joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child.

The Custody Trial

At trial it was clear the parties could not effectively engage in any form of joint decision making with respect to the child. The father's behavior was marked by repeated complaints to CPS, verbal insults and accusations. The mother stated even routine conversations regarding the child devolved into accusations regarding the parties previous relationship and the mother's lack of parental competence.

Custody Decision

Attorney David Sachs was able to show at trial that the father was responsible for the parties lack of cooperation and argued successfully to the judge that joint custody was inappropriate. The judge then awarded sole physical and legal custody to the mother.

In New York State the laws and policy regarding domestic violence are becoming more complex and requires special attention by the New York Domestic Violence Defense Lawyer. Domestic Violence is a criminal act against a family member, partner and/or boyfriend/girlfriend. Even if the relationship has ended the criminal action may still be considered a "Domestic Violence" case by the prosecution and the Courts.

The most common Domestic Violence charges are:

1. Assault or Attempted Assault
2. Aggravated Harassment
3. Harassment
4. Stalking
5. Endangering the Welfare of a Child
6. Sexual Assault
7. Rape
9. Menacing
10. Criminal Contempt (Violations of Orders of Protection)
11. Criminal Mischief

The Prosecution of a Domestic Violence Case:

In Westchester, Putnam, Orange, Dutchess, Rockland and Bronx Counties the District Attorney has special divisions devoted to Domestic Violence cases. Those divisions are usually well staffed with Assistant District Attorney's, police officers and non-attorney aids.

At arraignment the prosecution will routinely as for the Court to issue an Order of Protection in the favor of the complaining witness. Courts will routinely grant the prosecution's request. These Orders of Protection will prohibit an accused from contacting the other party or their children. The accused may also have to stay away from their home. It is very important to have a criminal defense attorney at arraignment to challenge any Order of Protection.

The Court's may require an accused at arraignment (even before any guilty is determined) to enroll in a Domestic Violence Program. These programs can be very time consuming, expensive and may not be necessary for the accused. Again, it is very important to have a criminal defense lawyer with you at arraignment to challenge the Court's requirements.

It is also possible that the Domestic Violence case will be transfered to a special Domestic Violence Court that hears only those types of cases.

While the Domestic Violence case is pending the criminal defense attorney must work quickly to determine the nature of the charge, the evidence against the accused, the type of Orders of Protection in place and any programs ordered by the court to properly defend the case. Contacting an experienced criminal defense attorney with Domestic Violence experience is very important.

Criminal Court and Family Court

A Domestic Violence case can be brought either in Criminal Court or Family Court. The Domestic Violence attorney must have an understanding of both courts to adequately assist in the defense of the matter since the issues usually will involve both courts. For example, if a wife files an assault charge against her husband the husband may not be able to see his children as a result of a criminal court Order of Protection therefore it is necessary to file a petition in Family Court to obtain custody/visitation rights. It makes sense to have the same attorney in both actions to coordinate the defense.

The Defense of False Domestic Violence Claims

Unfortunately, sometimes claims are made against a party that are false. If there is a bad breakup, anger over a fight or even to gain leverage in a custody or divorce action this can be motive for a false Domestic Violence claim. If the claims are false the above process will continue. In these situations the Criminal Defense Domestic Violence lawyer will focus on key claims made by the accuser and any motive to lie. Usually a false complaint is an exaggeration and the claims and can not be supported by the evidence.

Contact a criminal defense domestic violence attorney as soon as possible if you or someone you know is facing a charge. It is important to the defense to act quickly once the case has begun.

No Fault Divorce Law Passed in New York State

On August 13, 2010 Governor Patterson signed into law New York's new No Fault divorce law to be effective on October 12, 2010.

The new law allows a judgment of divorce to be granted to either party in a divorce action without assigning fault to the other party once all the major ancillary issues have been resloved.

A divorce under the new No Fault law allows for a divorce when a marriage is irretrievably broken for a periord of at least six months provided that one party has stated so under oath.Before the Courts will allow a No Fault divorce all ancillary issues regarding the marriage must be resloved. Ancillary issues include the following; equitable distribution of marital property, the payment or waiver of spousal suport, the payment of child support, the payment of counsel and expert fees, custody and visitation of the children of the marriage.

New York State has always been a "grounds" state where a party seeking a divorce has to alledge a ground such as; cruel and inhuman treatment, adultery, abandonment or confimement of the defendant in prison, living seperate and apart pursuant to a seperation agreement for at least one year. However, many parties want a divorce for a vaild reason but do not fit into the above grounds. This forced parties to invent false justifications to legally dissolve the marriage. This would prolong the divorce process and adds additional stress to an already difficult situation.

It is also the intent of the legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York Law and in New York Courts.

This is clearly a major change to the divorce law in New York State. If you have any questions about No Fault divorce and/or divorce in general call Riebling, Proto & Sachs to speak with one of our attorneys.

Joint Legal Custody — Orange County

Physical Custody is the right of a parent to reside with his or her children. Legal Custody is the right of a parent to make decisions for the children regarding the children’s education, religion, medical care, discipline, place of residence and associations with others.

Orange County Custody Trial

Recently, the Orange County Family Court awarded joint legal custody to both parents after a month long custody trial. Attorney David R. Sachs, represented the father and was able to successfully argue that the court should render an award of joint legal custody to the parties. The father was facing the prospect of losing custody entirely of his children. During the trial there were several contentious custody issues regarding the discipline of the children, child care, and the overall best interest of the children.

In New York it is very unusual for a court to render an award of joint legal custody following a trial, especially in situations where there is a high level of tension between the parents. Usually the New York Family Court awards sole legal custody to one parent following a trial, which makes the outcome that Attorney David R. Sachs was able to achieve on behalf of his client all the more impressive. In addition to obtaining an award of joint legal custody, Attorney Sachs was also able to win a significant amount of visitation time for his client.

Riebling, Proto & Sachs, LLP — Child Custody Attorneys

Attorney David R. Sachs is a child custody lawyer who handles numerous custody trials often with successful outcomes. Contact David R. Sachs with your child custody issues at Riebling, Proto & Sachs, LLP.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court. The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law. Generally, orders of protection fall under two categories, temporary and permanent. A temporary order of protection is typically made during the pendency of the action. A permanent order of protection is usually issued at the conclusion or disposition of the case. Frequently, temporary orders of protection precede permanent orders of protection.

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action. See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004). The order of protection may cover the complainant and family or household, but not beyond. People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her. People v. Monacelli, 299 A.D.2d 916. This particular event often occurs in cases involving spouses and families.

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody. CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses). At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution. In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms. A defendant has a right to hearing on the issue of firearms. It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation. The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

In New York under the Child Support Guidelines the child support obligation is determined by which parent is deemed to be the non-custodial parent. The non-custodial parent is determined by which parent provides care for the children a substantial majority of the time. If one parent provides a substanial majority of the care, then the other parent will be deemed to be non-custodial and required to pay child support. But if neither parent provides care a substantial majority of the care, then neither parent potentially owes child support or owes a reduced amount of support depending on the circumstances. The courts tend to determine on a case by case basis, which parent provides a substantial majority of the child care for purposes of determining whether child support is owed. It is important that if you are going through a divorce or custody dispute to keep in mind the amount of time that you will actually be spending with your children as this may affect you financially down the line. It is important to select an attorney who understands these issues and can guide you accordingly. At Riebling, Proto & Sachs, LLP we have the experience to assist you through these difficult issues.

Beginning a Divorce to Avoid Child Support Enforcement

Under New York State law, when a party enters into a stipulation in a divorce or matrimonial action regarding child support and that party wishes to modify the child support order, the party must demonstrate an unreasonable or unanticipated change in circumstance. Moreover, New York state child support enforcement law requires that a party for a downward modification for child support show that his or her change in circumstances is substantial.

So in other words, in order to avoid potential New York State child support enforcement against a party, that party under New York State child support law, must draft a divorce or matrimonial agreement very carefully.

At Riebling, Proto & Sachs, LLP, we have experience drafting such agreements to avoid litigation regarding unanticipated or unforseen circumstances. We can handle issues to lower child support and avoid New York State child support enforcement for clients. Under New York law, child support is handled using a child support calculator and it usually involves a percentage of the income of the parent who does not have child custody. We also handles such cases on behalf of clients to increase child support under New York law.