Modification of a Custody Agreement

On November 13, 2012, in Divorce, Family Law, by John A. Weber IV, ESQ.

Modification of Custody Agreement

Understanding the common misconceptions.

There are many misconceptions regarding whether or not custodial agreements can be modified.  The fact of the matter is that a custody agreement is not that much different than other agreements or issues that arise in Domestic Relations Law in New York.  Courts do their best to encourage parties in custody disputes to reach their own agreement rather than rendering a ruling which dictates custody.  In fact, courts will do their best to uphold custody agreements as long as circumstances allow.

Certain standards are necessary for modification.

It may be said that the courts will initially view a case with the  presumption that the agreement should be upheld.  This should not be interpreted to mean that the agreement will be upheld in every case.  The best interests of the child, a change in circumstances, and overall well being of the children will always be considered by the court.  In order to succeed in modifying a custody agreement, it would be wise to focus your arguments in these areas.

Long Island Divorce Attorney

If you are unhappy with a custody agreement and need legal assistance in attempting to modify it, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a Family Law Attorney today!

 

Child Custody and Sexual Orientation

On July 26, 2012, in Divorce, Family Law, by John A. Weber IV, ESQ.

Child Custody and Sexual Orientation

Although Same-Sex partnerships have finally gained approval by the New York State Legislature, unique family law and child custody issues still arise in this context.  The first sentence of Section 110 of the Domestic Relations Law provides that “An adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.” Section 117 of the Domestic Relations Law severs all legal ties between adoptive children and their birth families, and gives them the same legal status, with regard to their adoptive families, as birth children.   This much is relatively straightforward. Homosexual couples can adopt children together. And when they do, they are entitled to the same rights as heterosexual couples.

But family law issues between same sex couples and children can easily become more complicated. One famous New York case is exemplary. In Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, (1991), a same-sex couple decided to have a child. The child was conceived (through artificial insemination) before, but born after the couple’s Vermont marriage. The couple cared for the child as married parents for two and a half years, sharing childcare expenses, including the mortgage on the family’s house, until the relationship ended. When the couple separated, the birth mother kept physical custody of the child, and eventually ended contact with the non-birth parent. The non-birth parent petitioned the court for shared custody. Despite the fact that both parties shared the child’s expenses, and that the couple intended to treat the couple as their child, the court held that the non-birth mother did not have standing to petition for custody.

The court reached this conclusion because the Domestic Relations Law only gives parents, siblings, and grandparents standing to petition for the custody of a child. In New York, individuals do not become parents simply by marriage. In all but extraordinary circumstances, individuals must adopt their spouse’s children before they will have standing to petition the court for custody of those children. As recently as 2010, the Court of Appeals has reaffirmed its position that only the legislature can extend the the categories of people that can petition for custody. (See Debra H. v. Janice R., 14 N.Y.3d 576.)

Courts once viewed same-sex conduct as a reason to deny custody to parents. If a different-sex couple divorced, and one partner subsequently entered into a same-sex relationship, courts would tend to award custody to the other partner. (Although courts always considered a variety of factors, this factor weighed heavily toward denying custody.) However, since courts began to recognize same-sex marriages in other states, and especially now that same-sex marriage has been legalized in New York, the same-sex conduct of an individual only becomes relevant to a custody determination in situations in which different-sex conduct would be relevant – that is, where a parent’s sexual conduct threatens the well-being of a child, regardless of the sex of the partner.

Individuals in same-sex relationships – or different-sex relationships, for that matter – that want to secure custodial rights to a child should seriously consider adoption. Nevertheless, there are exceptional circumstances in which non-parents can petition for custodial rights to a child.

Long Island Divorce Attorneys

If you have any questions regarding the effect of sexual orientation on custody determinations, and would like to set up a free consultation with an attorney, call the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 today!

Residency Requirements for Divorce Actions

On May 1, 2012, in Divorce, Family Law, by John A. Weber IV, ESQ.

Residency Requirements

Not just anyone can get divorced in a New York State Court. Only litigants meeting the residency requirements set out in the New York State Domestic Relations Law Section 230 will fall within the jurisdiction of a New York State Court. If litigants do not meet these residency requirements, their divorce cases will not be heard by a New York State Court.

Domestic Relations Law Section 230 sets out five possible ways of meeting the residency requirement. If satisfied, any one of these requirements will ensure that a litigant’s divorce case falls within the jurisdiction of a New York State Court. But, in order to avoid wasting time or other resources, it is important to ensure that at least one of these requirements is met before beginning a case.

Requirement #1

(1) One spouse lived in New York State on the date the divorce action began, and
(2) for at least one continuous year immediately prior to the date the divorce action began, and
(3) the marriage was performed in New York State.

Requirement #2

(1) One spouse lived in New York State on the date the divorce action began, and
(2) for at least one continuous year immediately prior to the date the divorce action began, and
(3) the spouses at some point lived together in New York State as a married couple.

Requirement #3

(1) One spouse has been a resident of New York State for one continuous year immediately prior to the date the divorce action began, and
(2) the cause of action arose in New York State. (The “cause of action” is the event or series of events that gives one spouse grounds to seek divorce.)

Requirement #4

(1) The cause of action arose in New York State, and
(2) both spouses are residents of New York State at the time the action arose (no time requirement).

Requirement #5

Either spouse lived in New York State for at least two continuous years immediately prior to the date the divorce action began.

If you would like to pursue a divorce in New York, and have questions about residency requirements or other issues, the Law Firm of Vaughn, Weber & Prakope, PLLC, is here to assist you. Contact us at (516) 858-2620 to arrange a consultation with a divorce attorney.

 

Marital Agreements are Binding

On January 15, 2012, in Divorce, Family Law, by John A. Weber IV, ESQ.

Marital Agreements

Recently, we have received several questions regarding marital agreements such as prenuptial and separation agreements.  The questions seem to focus on whether or not the agreements are binding.  Primarily whether or not a court can decide to modify the terms of such agreements if they are deemed unfair.  The truth of the matter is that these types of agreements are legal contracts.  If executed in compliance of the required formalities, then these agreements are generally binding.  Modifications to these agreements are permissible as long as both parties consent and follow the appropriate formalities for modifications.  Courts, however, will tend not to modify the terms of such agreements unless there are extenuating circumstances.  It is not an easy task to convince a judge to alter or void the terms of these marital agreements.  One exception to this general conclusory statement is when the best interest of an involved child would dictate that the Court intervene and impose its will.  These agreements are very intricate and the necessary terminology can be the difference in whether one of these marital agreements are valid and enforceable or possibly declared void and meaningless.  As always, please call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to speak to a family law attorney!

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