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.

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.

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.

With the recent housing slump couples seeking to get a divorce are finding that they are fighting not to keep the house, but rather to not get the house during the divorce settlement.

Simply put, as a result of the housing crisis, the value of the home is worth less than the mortgage owed and this makes the process of splitting up that much harder.

These issues were recently featured in an article in the New York Times.

In making the decision to get divorced it is important to select an New York Divorce attorney who has the experience in dealing with these difficult financial issues. At Riebling, Proto & Sachs, we have the experience you need in order to ensure that even in these difficult financial times, that your interests are protected. We can structure settlements in a divorce on your behalf that will help to protect your credit and your finances, even in an uncertain market.

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.