New York Criminal Lawyer Blawg

Child Care Expenses

In New York State the Family Court as part of a basic child support Order can also set certain add on expenses. One of those expenses is for child care costs such as daycare.

Recently, in the Westchester County Family Court, David Sachs, Esq. successfully had the mother's (custodial parent) violation petition for arrears due for child care expenses dismissed. The mother was claiming that she incurred various child care expenses and that the father (noncustodial parent) refused to pay those expenses. Attorney Davis Sachs argued several points as to why the expenses were not appropriate but when lawyer David Sachs caught the mother lying on the witness stand the Support Magistrate in the Westchetser County Family Court dismissed the case.

In this case, the mother claimed to have child care expenses while she was at work and need to pay a relative to care for the child. The mother provided to the Westchester County Family Court a calendar which outlined all the the days that she was required to work and needed child care. Attorney Davis Sachs decided to subpoena the mother's work records from her employer setting forth the days the mother actually worked.

Based upon the evidence in the Westchester County Family Court the mother was billing the father for child care expenses on dates she claimed she worked when the employment records showed she was actually out sick.

The Westchester County Family Court called the mother's claim for child care expenses to be a blatant misrepresentation and found the mother less than credible.

Legal Strategy

Here Attorney David Sachs knew that in order to defeat the mother's claims for child care expenses it was necessary to subpoena her employment records. When the mother testified in contrast to the actual employment records her credibility for child care expenses was destroyed.

In New York State Family Court child support payments are made pursuant to a Court Order. Child support can be made by the noncustodial parent to the custodial parent either directly or through the support collection unit (SCU).

In Westchester County the SCU unit is located in Mount Vernon but in child support court a representative from SCU will be in Court to inform the Court and the parties regarding the status of child support payments from the noncustodial parent to the custodial parent. It is very important that both parties keep track of all child support payments made or received. It is never suggested by any child support lawyer in Westchester County or otherwise that any payments for support be made or received in cash!!

When the noncustodial parent falls behind in child support payments a petition may be submitted accusing the noncustodial parent of violating the child support court order. This petition is very serious since a nonpayment of support by the noncustodial parent can lead to incarceration. Due to the serious nature of this violation it is always recommended to have a family court lawyer in court with you if you are the noncustodial parent or the custodial parent. If the violation of the court order is found to be willful the court must order attorneys fees for the custodial parent.

Recently in the Westchester County Family Court it was found that proof that the respondent (noncustodial parent) Failed to pay court ordered child support is prima facia evidence that the violation of the order was willful shifting the burden to the respondent to offer competent, credible evidence of an inability to pay. Family Court Act section 454(3)(a).

The respondent sustained his burden of demonstrating his financial inability to make payments required by the Child Support Court Order in Westchester County. To sustain his Burden the respondent offered uncontroverted evidence that since losing his position as a security guard in 2004, he has been able to obtain sporadic employment at low wages and he had no savings or other assets.

Under those circumstances it was found that his violation of the Westchester County Child Support Order was not willful.

There is a fine line the Child support court needs to determine when reviewing a petition for failure to pay child support and a child support lawyer is always necessary since the legal issues can be complex.

BY: DAVID R. SACHS, ESQ.

In August 2010, at a trial held in Yonkers before Westchester County Family Court Support Magistrate Michele Reed Bowman, Riebling, Proto & Sachs successfully argued that their client, a retired fireman living in Florida with his new wife and their twin twelve year old sons, should not be required to pay to his ex-wife the full amount of child support required to be paid by New York State Child Suppport Guidelines. RPS argued that the court should deviate from the child support guidelines and that the Father should pay less because of the needs of his twin sons from his second marriage. During the trial, proof of the Father's expenses for his twin sons was submitted to the court. Relying on New York Family Court Act Section 413(f), the Support Magistarte held that under the cirmcumstances an order directing the Father to pay the full amount of child support would be unjust and/or inappropriate. As a result, the Father was ordered to pay thousands less per year.

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.

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.

If you are currently paying child support in New York, your liability to pay child support for your children is enforceable until the children reach the age of 21 years.

In the absence of an express contract, parents have no duty to support an adult child. For custody, visitation and other purposes, the age of majority in New York is 18 years, but child support remains until 21. However, this duty is not absolute.

The child support obligation may be suspended or terminated before the child is 21 if the child becomes emancipated by becoming economically independent of his or her parents through employment, marriage or entry into military service.

Under unusual circumstances, a child may be deemed emancipated is he or she is guilty of outrageous misbehavior, such as it makes it inequitable to enforce the New York child support obligation, or if without cause, the child withdraws from parental control and supervision. In other words, if a child refuses to abide by a parents reasonable rules and decides to leave that parents control, the other parent who is still obligated to pay child support can seek a court order to have the child support obligation suspended or terminated. It is important to chose an attorney who can assist you in navigating the difficult aspects of child support.

Please contact Riebling, Proto & Sachs, LLP to discuss your child support rights.

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.