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
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!
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!
Separation Agreements
Separation Agreements need to be artfully drafted. Each sentence should be carefully selected. There are certain errors or omissions that can be fatal to the document’s survival. It is highly recommended that these types of agreements are drafted by or at least reviewed by an attorney. The risk of not doing so, regardless of the cost, is too great. In the last couple of days, we have seen an increased number of clients who have attempted to draft their own agreements and have come to our firm to fix them. This ends up costing more money in the long run.
We are aware that there are certain online programs that can assist you in drafting these agreements thru a data entry interface. These programs are very general and not capable of adjusting to the unique intricacies of your particular situation. Although these interfaces may be capable of pumping out a Separation Agreement in minutes, the quality is certainly declined. The validity and effectiveness of the resulting agreement is going to be questionable at best.
I understand that the economy is currently struggling and funds are hard to come by. We see it here just like every other type of business. There are certain things that need to be done correctly however. Taking shortcuts will only result in a longer and more expensive road later. So if you feel that a Separation Agreement is important to you and you would like to feel comfortable that the terms will hold up in the event that they are ever challenged; then you should seek the assistance of an attorney to draft it for you. As always, if you have any questions about Separation Agreements or Divorce in general please call (516) 858-2620 to speak with a Family Law Attorney!
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