Divorce Proceedings, Child Custody, Visitation , Child Support, Adoptions, Domestic Violence, Premarital Agreements.

Divorce Proceedings

Like marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce or “dissolution of marriage” is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of propertyand division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.

Divorce laws vary from state to state. In some jurisdictions, divorce requires a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the “no fault” principle in divorce proceedings, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.

Married adults now divorce two-and-a-half times as often as adults did 20 years ago and four times as often as they did 50 years ago… between 40% and 60% of new marriages will eventually end in divorce. The probability within… the first five years is 20%, and the probability of its ending within the first 10 years is 33%… Perhaps 25% of children ages 16 and under live with a stepparent.
—Brian K. Williams, Stacy C. Sawyer, Carl M. Wahlstrom, Marriages, Families & Intimate Relationships, 2005

Prior to the 1970s, divorcing spouses had to allege that the other spouse was guilty of a crime or sin like abandonment or adultery; when spouses simply could not get along, lawyers were forcedto manufacture “uncontested” divorces. The no-fault divorce revolution began in 1969 in California; New York was the last state to include no-fault divorce, in 2010. State law provides for child support where children are involved, and sometimes for alimony as known as spousal support. The median length for a marriage in the US today is 11 years with 90% of all divorces being settled out of court.

The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts.

The Family Court of the State of New York handles a wide variety cases and has a wide range of powers to fit the particular needs of the people who come before it.  Family Court does not have jurisdiction over actions for divorce although it does have
jurisdiction over child support, child custody, visitation and family offense cases which are often issues in a divorce action. Family Court is a busy court whose resources can be stretched thin because of the high case volumes that it handles.  The judge and the other attorneys in the case such as a law guardian for a child and attorneys for the Department of Social Services cannot advocate for you.  Your best interests are served by retaining an attorney to represent your interests in court.  Family Court handles cases regarding domestic violence (family offense and orders of protection), child abuse and neglect, child support, child support enforcement and support modification, child custody and
visitation, paternity, juvenile delinquency, PINS and adoption.

Domestic Violence:  Petitions alleging a family offense often result in the issuance of an order of protection. An order of protection is a court order which directs a respondent to refrain from specific actions, such as staying away from another person or place or to
not engage in certain behavior (family offense) which would normally constitute criminal behavior.  Failure to obey an order of protection can result in immediate arrest and possible incarceration.  From time to time I hear from people who are sorry
that they agreed to the order of protection as they did not fully understand the ramifications of the order and the potentially severe consequences of being found to have violated an order of protection. Orders of protection may be part of a criminal
proceeding or as part of a civil proceeding in Supreme or Family
Court.  An order of protection can be requested in Family Court or in Criminal Court, or both. Supreme Court also has the authority to issue an order of protection. When the parties to a family offense matter are in front of two or more judges in Supreme Court, Family Court, or Criminal Court, their case may be referred to the integrated domestic violence part and consolidated before one judge.  When two or more judges are involved for the same parties or for a divorce where domestic violence is alleged, the matter will be transferred to the integrated domestic violence court, and one judge will hear all matters between the parties. Thus one judge will hear the divorce, custody, visitation, support and orders of protection. Prior to the IDV court, it was not uncommon to have a
divorce before a Supreme Court justice, family offense matters before a Family Court judge, and criminal matters pending in Criminal Court. The result was conflicting orders, and judges dealing with issues piecemeal. The IDV court is designed to provide  consistency from one court on what was once considered separate legal issues.
A child protective proceeding is begun when it appears that a child less than eighteen (18) years of age has been abused or neglected or is in danger of being abused or neglected.  A petition may be filed by a child-protective agency asking  Family Court to
assist in protecting the child.  It is important to have an attorney represent your interests as the attorneys for the Department of Social Services advocates for Child Protective Services, not you.  Failure to comply with the Dispositional Plan can adversely impact on your legal rights to your child. Often there is an issue of whether a person is complying with a Dispositional Plan.  Only your lawyer can advocate that you are in fact in substantial compliance.  Child Support:  A child is entitled in New York State to be
supported by his or her parents until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child is considered to be “emancipated” and the parents’ support obligation ends. A child may also be
considered “emancipated” if he or she is between 17 and 21, leaves the parents’ home and refuses to obey the parents’ reasonable commands.  If you are responsible for support of the child, an attorney can represent you in a proceeding to terminate
the order of support.  The fact that the child is “emancipated” does not automatically terminate the order of support and you are responsible for payment of support until it is terminated. When the parents are not together, and one of them has legal custody of the child, that parent can file a petition in Family Court to ask the other parent to pay child support. A person can file a “Violation” petition in Family Court for willful failure to pay child support as ordered.  There will be a hearing to determine if the non-payment was willful if the violation is not admitted.  A person who is alleged to have willfully violated the order of support needs legal representation since the court can invoke punitive sanctions if the violation is proved.  A petition for modification of the order of support can also be filed based on a substantial change of circumstances.  Custody & Visitation:  There are two parts to custody. One is the right and responsibility to make decisions for a child (legal custody). The other is where a child will live (residential or physical custody).  In joint custody, the parents make major decisions about the child together; decisions about education, health, and religion, for example. The smaller, day-to-day
decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole custody, just one parent has the right to make the major decisions. Today’s courts are not supposed to favor either parent based on gender. A court is obligated to make a custody award based on what’s best for the child.  A parent seeking to visit with a child may file a petition in Family Court against the custodial parents of the child for visitation.  Custody and visitation matters are often heard together within the
same hearing, but a visitation petition may also be filed as a separate matter.  Other family members, such as grandparents or siblings, may also file a petition seeking an order of visitation.  The court will order visitation if it is in the child’s best interests.
Paternity:  When a child is born to parents who are not married to each other, the biological father is not considered the child’s legal parent unless the father has signed an “Acknowledgment of Paternity” (usually done at the hospital at the time of the child’s
birth) declaring himself to be the child’s father, or an “order of filiation”, which is a court order that declares that person to be the legal father, has been made. A petition may be filed in Family Court seeking an order of filiation.  Only after determination of
paternity does the father acquire legal rights and obligations with the child such such as the right to ask the court for visitation or custody.  The legal obligation for support for the child also begins with the establishment of paternity.  Juvenile Delinquency:  When a person who is under 16 years old, but is at least 7 years old, commits an act which would be a “crime” if he or she were an adult, and is then found to be in need of supervision, treatment or confinement, the person is called a “juvenile delinquent”. The act committed is called a “delinquent act”. All juvenile delinquency cases are heard in Family Court. Children who are 13, 14 and 15 years old who commit more serious or violent acts may be treated as adults. These cases may be heard in Supreme Court, but may sometimes be transferred to the Family Court. If found guilty, the child is called a “juvenile offender”, and is subject to more serious penalties than a juvenile delinquent.
“PINS” stands for Person In Need of Supervision.  A PINS proceeding involves a child under the age of 18 who does not attend school, or behaves in a way that is dangerous or out of control, or often disobeys his or her parents, guardians or other authorities.  Such a child may be found by the court to be a Person In Need of Supervision or “PINS“. All PINS proceedings are heard in Family Court. There are two types of adoptions in Family Court: “private placement” and “agency”. It should be noted that adoption petitions are sometimes filed and heard in the Surrogate’s Court.  When a child’s parents have died, when the parents cannot continue to provide for the care or custody of their child, or when the parents’ right for the care and custody of their child has been terminated by the court, the child may be “adopted”. In an adoption, the natural parents’ rights are ended, and the court gives permanent legal responsibility for the child to other persons who then become the child’s parents. A child fourteen years of age or older must approve of his or her own adoption.