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Top Ten Tips for Negotiating Child Custody and Child Support Agreements in New York

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Top Ten Tips for Negotiating Child Custody and Child Support Agreements in New York

A review of New York State’s child custody and child support laws. There will be a total of ten practical tips regarding the negotiation of child child support and child custody (plus two bonus tips). For child support cases, there is information on “high income cases” as well as your “average” income cases. In the area of child custody, will review the different types of custody and the factors that the courts use in determining custody. Will also discuss the role of the Attorney for the Child and forensic reports.

Transcript

- Hello, today's CLE is "Top 10 Tips For Negotiating Child Support And Child Custody Agreements". My name is David Badanes. You can find me or email me at [email protected] I am a New York state attorney and everything I'm going to talk about today is about New York state law. If you live in a different state, please consult your local laws. So let's get right into it. Basic child support law. First we're gonna talk about the Child Support Standard Act, which you can find in DRL section 240 or the Family Court Act at section 213. Again, when we're talking about child support, it is based on the parental income. You have to calculate your combined gross parental income. Most clients, they're gonna tell you their net income, you need to find out what their gross income is, and again, you can look at the citations that I'm going to have throughout this program. Here we have Gravy versus Gravy, which is from the court of appeals, 87 New York second 605. And Casano versus Casano, also a New York state court of appeals case, 85 New York second 649. So gross income includes investment income, imputed income, which we'll talk about a little bit, and just about every other type of income that you can think of. They're really trying to include anything that you can think of. And again, we start with the gross income. And then from there, we take some very limited deductions. You can take some business deductions. One of the biggest deductions you can take is child support you are paying on behalf of another child or other children. However, it has to be by a prior court order. And so that is one of the biggest deductions. And then another deduction, which is pretty much in every case is the amount you're paying in social security tax and in Medicare tax. And that typically, depending on the person's income, is about 7.5%. And the reason it changes is that the deduction for social security cuts off at a certain amount. And again, you wanna look at the W2 statement. So again, you're looking at the gross income. You're first starting with the gross income as reported or should have been reported on the most recent federal income tax return. And then investment income we talked about, some of the other incomes that is included, worker's comp, disability, unemployment insurance, social security benefits, veterans benefits, pension and retirement benefits, any type of stipends or annuity, again, you could see, it really includes a lot of different income. And then we talked about statutory deductions from income. You can deduct social security and Medicare, it's approximately 7.625%. But again, you need to double check that. You get to deduct only on amounts actually paid. There's some citations there about that. For both W2 employees, you wanna look at what is on the W2 at box five, that's the Medicare wages. And that would include pretty much everything that the employee gets. And then you want to subtract the total of the social security tax withheld and the Medicare withheld, and again, you wanna make sure you look at all the W2s that the employee or your client has, or the other side. So that's when you're looking at deductions. We already mentioned what's the most common deduction is child support for another child. But again, you must have the child support order in place for the other child or children. So here comes the first top 10 tip, tip number one. Even if there is no child support order in place, you still wanna argue to the court that the other child/children also need child support. So the court should take that into account. It may not always be a winner, but again, can't hurt to throw that in there, try it out. So even if there is not a child support order already in place for some other children, you want to show the court that the person is paying child support, whether it's by order or otherwise. And that should be another deduction taken off. So that's tip number one. Income above the cap. If the combined income of the two parties is above the cap. So what is the cap? Currently it's $163,000. We'll talk about how that's determined. Then the court has the deduction to apply the child support above the statutory numbers and using the factors. Here's some citations you can refer to. So what are the factors if you're going to try to get child support above the cap? The factors are financial resources of both the parents and even the child, the physical and emotional health of the child, and any special needs or aptitudes that the child may need or have, the standard of living that the marriage or household had if it had not been dissolved, the tax consequences to the parties, non-military contributions, educational needs, if one party's gross income is substantially less than the other parties, and if the non-custodial parent has other children and other needs. So we mentioned about imputing income before, and that you can find in the Family Court Act section 413, it's mentioned there. So the court is not bound by your representation of finances. Of course, many times this involves people who work quote unquote off the books, own their own business, et cetera. So the court can input income, which is basically using its best guess what it thinks the income of that person should be. And it's based on the employment history, future in earning capacity, educational background. And also this is a big one, money received from friends and relatives. Many times people say, well, I have no money. I'm not making in any income. I'm being supported by my parents, my relatives, et cetera. Well, those, whether it's a gift or whatever you want to call it, the court can basically say again, that income, the money you're receiving from your friends and relatives counts as income and we're gonna sweep that into when we are figuring out what child support should be paid. But if the court does impute income, it must provide a clear record of the source of the imputed income and the reason for imputation and the resulting computation. That's in Pilkinton citing Muldowney 167 AD third 1022. And that's from the second department. You also wanna see Johnson and Johnson from the third department and matter of Drake versus Drake in the fourth department. I have tried to include citations to all the departments in here, but there may be some exceptions to that role. When some cases that the court did not impute income. And again, from Flam versus Flam first department case while courts are afforded considerable discretion in imputing income, the calculation of a parent's earning potential must have some basis in law, and in fact, and that's in Flam versus Flam. So here comes tip number two, if you're at a party seeking to impute income, then you also must look at the other party's statement of net worth and expenses. For example, if their expenses add up to a hundred thousand per year, then most likely their income is at least a hundred thousand per year, so again, I'll repeat. So if you're trying to say, hey, that person makes more money than what they're claiming, look at the statement of net worth and their expenses, whatever their expenses are, typically that should be their income. I mean, kinda makes sense if your income, again, using this example is $100,000, then you need to have $100,000 to pay all those expenses. So that's a good way to show that the other party is at least making $100,000, if not even more, and use that as a good argument. Other reasons why you may want to deviate from child support, your financial resources are health and the needs of the child, the standard of living of divorce, tax consequences, non monetary contributions, et cetera. And again, that's listed in the statute that is referenced in the material. So a lot of people will ask, well, what isn't included in child support, what expenses? So it does not include extracurricular activities, enrichment, clubs, sporting activities, leisure, meaning vacations or otherwise. So child support I like to say covers three things, the shelter, the roof over your head, the food on your table, the clothes on your back, et cetera. So that's very basic, but that's a way to look at it. So anything else you can argue to have the other person pay for it, especially if you're in a high income situation, but in your garden variety child support case, you are looking at just those things that child support pays for. The exceptions to those rules may be private school tuition. So if the child has been enrolled in private school for the last year, two years or whatever, the parties have already indicated that they'd like the child to go to private school and that tuition should pay for it. So that's DRL section 240, but you have to consider it a circumstances of the case. It's certainly not an automatic. So we talked about the quote unquote statutory cap. Currently the cap is $163,000. It does go up every two years. The next increase is scheduled for approximately January or February of 2024. The court system will come out with that increase. Usually they do it after the year turns. So you have to look out for it. And again, so child support below that cap, which again, right now is a $163,000 combined, that's pretty much gonna be a black and white thing. If it's over the cap, the court has discretionary to whether or not it will go over the cap in determining what the child support should be. It can, and many times it will go over exceeding the cap. However, the court is required to explain what factors it looked at when it ex exceeded a cap in any decision. And again, that's referencing Casano versus Casano, 85 New York second 649. We talked about deviations already. We're not going to do that again. So why would the court not be able to go over the cap? The court made no factual findings that the child had financial need that would not be met unless the child was ordered to be paid, unless child support was ordered to be paid out of parental income in excess of the statutory cap. And we conclude that even if the court had made such a finding, there's no evidence and a record to support it. That's from Benedict versus Benedict, 169 AD third, 1522. And that's from the fourth department. Here's some other cases from Queens County, Kings County and also second department. The citations are ALB versus ALB, 50 miscellaneous third 424, Queens County case Michael V. versus Eva S, 52 miscellaneous third 1221, and petty court versus McKay, 145 AD third 1081. Here's some cases where the court did go above the cap. Again, many of these times it's when the parties do have a high income, et cetera. So here in the Supreme court of New York County, relatively recent case, March 2022, went up to $300,000 and that's JTP versus SJ, 74 miscellaneous third 1225. In the first department, again, went to $800,000, Clower versus Babelich, 149 AD third 617, and Suffolk County also went above the cap. I didn't state what the number was, but that's in Jessica T versus Keith, 67 miscellaneous third 1229A and that's from 2020. So we have three more tips coming your way. So tip number three, if you represent the party paying child support, always argue for capping child support at the statutory cap. If you represent the party receiving child support, always argue for a high cap, again, the court, if it's going to go to trial, has to go in order, the court is required to explain why it went above the cap. So if you're trying to say we should cap it at the statutory number, say that's all we should do your honor. If you want to get more child support, you have to present the reasons why to the judge in your trial why we should go over the cap. So you wanna make sure you keep that in mind, that if you're trying to argue why you should go over the cap, or we should use the cap, keep those factors in mind and make sure the court is aware of it. Tip number four, many times before there's a trial, et cetera, there's court conferences, especially in the judge's chambers, many times the judge will give you an idea of quote unquote what cap they use, they have their own biases, of course, and depending where the judge is, whether it's Long Island, New York City, upstate, those caps, they're what I call a soft cap, meaning what the judge thinks the number should be, can change somewhat drastically. And we'll talk about what numbers each judge or county tends to use. Tip number five, you wanna do your computations with the cap. So we have that base number. You want to use maybe a low cap number, meaning for now, let's say it's 163, a low cap number would be maybe $200,000. A medium cap number would be maybe 225 or 250. And a high cap number would be $300,000 or $275,000. This way you have actual figures and numbers you can show to the court, to your client, et cetera. Because it's just easy to say, well, let's go to 250 or whatever, but if you can show the actual way it affects the actual child support number, that will certainly or could help your case. So those tip number three, four, and number five, and now we're gonna go to some other things. So that was basic child support. There are two other what people call the add-ons and they are divided by the pro rata income of the parties. And those are childcare expenses and medical expenses. So just a very simple example. and I use H and W for husband and wife, and of course, if they're not married, it can be whatever parties, but just we're gonna use H and W throughout here most likely to just making easy reference. So if the husband is making $100,000 and the other party's making $50,000, the total is 150. I know most of you don't like doing math. I'll go do the math for you. The pro rata is the husband is two thirds basically. And the wife is one third or 33%. And that's how, so if you had childcare expenses of $100, then the wife would pay $33 of that and 33 cents and the husband would pay $66.67. And of course, medical expenses, we're talking only for the child, and this is only unreimbursed medical expenses and also the medical expenses for the premium. And again, those are also shared pro rata. Two more tips. Number six, you may want to consider paying more in childcare and medical expenses and try to negotiate for reduction in child support, so let's say your pro rata is, using examples, two thirds, maybe you wanna say, well, I'll pay a hundred percent of those expenses, but give me a reduction in my child support. What would be the reason for doing that? You would feel maybe that the childcare and medical expenses are directly for the child and that you'd rather pay for them. And of course, childcare is going to end at a certain age and medical expenses should be relatively, hopefully limited. So those are what you may want to consider using that as a negotiation tip for paying a less in child support. Tip number seven, if you're the payer of child support and your pro rata is greater than 50%, again, very similar. You want to consider negotiating to 50% and maybe give something else whether it's a reduction in child support or not, but again, to try to even the playing field. So child support negotiation, you wanna make sure a few things you want to know is you have to know each party's income, each party's expenses, this is important, know what other expenses the party is paying or not paying for. So again, even though the other party may not be required to pay extracurricular, you may wanna make a note of that, or if you're the one paying for it, you wanna make a note of that. Is there any tutors being paid for? Again, we talked about other children and child support. Maybe you're paying for some elderly parents, maybe you're paying for college for the children, even though you're not required to, maybe you pay for vacations, again, even though you may not be required to, these are things that you can present to the court on either side saying that they're being paid so my child support should be less, or maybe you're not paying for them and the other side can say, wait a minute, I need child more child support. Of course you do wanna know the judge and the court, we mentioned each judge does have its own biases and you can typically figure those out pretty quickly. Also very important, the first time you were in court, you wanna make sure you set the tone, set the position in the beginning and make sure the court and your adversary know your position. So if you're gonna only pay child support only up to the cap, you wanna make sure that's very clear. You wanna make sure what the income is to the judge, what's it consist of, et cetera. So you wanna really make sure you set everything up in the beginning so it makes it easier to plan your case out. So again, expanding on that, you wanna know all your expenses of both parties. List with average numbers. You don't have to go with pennies, et cetera. You want to summarize it and compare with both the gross and net income. Again, know what the other expenses the party is paying or not party, especially expenses that are for the children and college expenses is another example of that. Know the judge, which could probably be your most important factor, and know the court that you're in. If you wanna pay less child support, you wanna make sure you can try to limit the damage, try to use a smaller percentage for over the cap or use a smaller cap for over the cap. So what do I mean by that? So let's say that the judge wants to go to $250,000. You want to say, well, 225 or $200,000 is more appropriate, or if the judge wanted to go up to 250 and let's say there were two children, maybe you say, well, instead of using 25% for the over the cap, maybe use 17%, that's less successful, but can't hurt to try. If you do want to get more child support, you have to, as I said before, list why, try to compare it with other cases. It's always very helpful that you do the math for the judge in opposing counsel. There are many sites out there that can show you how to do the math for you. And you can just show it to the judge in a very easy fashion. And that's also very helpful. Again, you want to, if you are going to use the cap, you have to go through each of the factors or some of the factors and explain why it applies or does not apply. So high income cases, child support should be based on the child's actual needs and the amount required for the child to live in the appropriate lifestyle. This is in the second department, you'll probably find many, many cases in the first department about this, just because it's New York City and there's many high income cases there. You'll find also in Westchester, which is in the second department, there's many cases where the court went over the cap due to what they called the economic reality of living in Westchester, the high cost of living in Westchester, and that could certainly apply for Long Island as well. And there's a bunch of cases listed there. The other case that I'm assigning to is Pitman in the second department. And they gave some careful consideration reasoning in that case. Now the child support, so let's say the custodial parent actually makes a lot more money than the non-custodial parent. Well that does not affect child support, the child support is for the children and the custodial parent is still able to get child support, even if they are earning more than the non-custodial parent. So you can look at Ruben versus Delasala, a case in the first department 107 AD second 60 where a father was earning millions more than the non-custodial parent. But in that case, the father was the custodial parent, and still was able to get child support. Again, we talked about private school tuition that if it's already in place or has been in place for the child, that it's a good argument that the other party should pay for it, and of course, if it's never been in place, you want to make sure that your client doesn't have to pay for child support and put that explicitly in any kind of settlement, et cetera. So I'm not including this in my top 10 tips, but some practical tips about how much does a court go over the cap will depend again where the case is, where you live. And these are just what I've found. And this is relatively current in 2022, in New York City, many of the judges will use a cap of $300,000 to $350,000. But again, each case is different. This is not a guarantee. But it's a good bet that if the gross income is $300,000 or 350, the court will use that. Same, well not same numbers, but same theory in Long Island and Westchester, I find $200,000 to $300,000 to be the number that most judges will use. Again, if the gross income of the two parties is that number. And in upstate anything north of maybe Orange County and above, you could find the courts are going to use maybe only $200,000 to $250,000. So that wraps up child support. Now we're gonna go into basic child custody law. And the first thing you're gonna know because you're gonna hear it about a million times is child custody is based on the best interest of the child and given the totality of the circumstances, and that is cited in many cases, but it started out. I don't know if it totally started out, but the two cases in 1982 are cited for that many, many times. And then also if you win child custody at the trial court, it could be very difficult to get it overturned in appellate court. A trial court's determination should not be disturbed unless it lacks a sound or substantial basis on the record. So some other cases in so many other departments citing to the best interest of the child will happen to be from 2014 and you can certainly read them there. So people, at least clients typically get confused about child custody law. Many, many times, they're gonna tell you they want joint custody, they don't really even know what that means. So we're gonna break it down. There's physical or what sometimes is called residential custody. And basically that means where do the children sleep at night? Where do they spend most of their time? And then there's legal custody. And that really means decision making only. So that means the decisions involving health or medical decisions, education, whether they go to private school, public school, what classes they take, et cetera, what religion the child is gonna be brought up in. A fourth one could be considered what extracurricular activities the child participates in. Some judges don't consider that within legal custody. And of course I'm putting one case referring to joint legal custody in the second department where it did award joint legal to one party, but residential to the other. So what are the factors for custody? Neither parent has a prima facie right to custody. clients always say, well, women always win, et cetera, that is becoming less and less true. And many cases are cited to that. And a court cannot show a bias to one sex or to one type of parent when they're talking about custody. They should be using various factors. The factors may have not changed, but the way that the court applies these factors or considers the factors has mutated and changed over the years. You'll find more cases recently talking about a willingness to foster a relationship with the non-custodial parent. So what does that mean? The parent more likely to assure meaningful contact and to foster a healthy relationship between the child or children and the other parent. And that's cited of Felicia versus Bond, 108 AD third 702 second department, and a few other second department cases. This is a very important factor. And I gave some citations to first, second, third, and fourth department. And it can be somewhat counterintuitive, but you want to show if you're representing one party in a child custody case, you wanna show that you're willing to, again, assure meaningful contact and a healthy relationship between the children and that other parent. So some examples could be, while the case is going on, or hopefully even before that you had the case, if the other parent says, hey, I have a birthday party or something important to go, can I take little Johnny, little Susie, whatever, you wanna tell your client, say yes, within reason of course you wanna show that you will be accommodating to the other parent and what they're requesting so they can have this relationship. A good quote here is that the best interest of the child being nurtured and guided by both parents in order for the non-custodial parent to develop a meaningful nurturing relationship with the child, visitation must be frequent and regular, so again, this could be a good argument for arguing why every other weekend is not appropriate, that there should be more visitation. And again, while the case is going on, you wanna encourage frequent and regular visitation. So we come up with tip number eight, if you want custody or join custody, it's very important to stress the parents' willingness to foster a relationship with the other parent. More importantly, what usually happens is one parent is not fostering this relationship, is trying to sabotage it in other words, and you want to use this for your benefit. This is again, very important, very important tip to show that your client, if you're trying to get joint custody, you wanna show that they're willing to foster a relationship, work with the other parent and not sabotage it. Very similar to this is parental alienation, which is interfering with that relationship, can be considered the other side of coin, so to speak. So parental alienation is described as the programming of the child or the children by one parent into a campaign of denigration against the other parent. The second component is the child's own contributions that dovetail and compliment the contributions of the programming parent. It is this combination of both factors that define the term parental alienation, or maybe a more simple definition, parental alienation is where a custodial parent or any parent actively interferes with or deliberately and unjustifiably frustrates the non-custodial parent's right of reasonable access. So if a case just started, or the parent just started a custodial case and one parent is always interfering with the other party's access. I'll give you an example. I had a case where I represented a father and for various reasons, mainly due to his work schedule, he only had weekend time with the child. And while the case was going, just about every weekend, and I'm not exaggerating, mom would come up with some excuse why the child could not go to the father's house. It was really getting to the point of ridiculousness. We made sure we showed the judge this and the end of the day, of course, this rebounded against the mother and we were show that she was alienating the child and my client should have custody. So again, this can be a very important example. I use the term PAS for parental alienation syndrome. And although it's not routinely accepted as a scientific theory, the courts have repeatedly recognized the effects of it on custody. And that's from a fourth department case. Another good definition is parental alienation of a child from the non-custodial parent is an act so inconsistent with the best interest of the children as to per se raise a strong probability that the offending party is unfit to act as a custodial parent. So many times if the one person is alienating, that's gonna be very, very short term and that's gonna work against them and could work to your benefit. So tip number nine, again, I sort of said it already, but it's sort of the flip side of the willingness to foster a relationship. However, you have to show actual acts of alienation. If there is parental alienation, make sure you argue it. So you can't just say it. I mean, it's a term that is thrown around a lot, but you wanna show the court that the other party did X, Y, and Z. Again, in my case that they were always withholding the child for these ridiculous reasons on every weekend. And that my client didn't get the visitation he was entitled to. Some other cases of parental alienation from the second department, fourth department, and the third department. Also another powerful factor in determining custody cases is when there's been false allegations made, typically of physical abuse or sexual abuse from one party to the other. So we're not just talking about, well, the one party was 15 minutes late and let's say they were never late. Was that a false allegation? Sure. But that's not what we're talking about here. We're talking about false allegations of typically physical and sexual abuse made against the other parent. So very similar to what we were talking about with parental alienation, evidence of false allegations of physical abuse which interfere with parental rights is so inconsistent with the best interest of the child that it raises by itself a strong probability that the offending party is unfit to act as the custodial parent. That's in Mohan versus Mohan, 53 AD third 471, second department. And that's in 2008, that case. A couple other cases cited. Another one is repeated and unfounded allegations of sexual abuse, constituted conduct so inconsistent with the best interest of the child as to per se raise a strong probability that the parent is unfit to act as the custodial parent. So if you have a case where there are all false allegations, and again, I've had cases where I represented a father, mom, they were not married. Mom made these false allegations of rape, et cetera, it was very horrific. And they never happened. When he took the child to the doctor, there was no evidence of any type of abuse, et cetera. So we brought this to the trial and my client was not a great witness, but because of the false allegations, he was able to win custody of the child. Well, that really should not say false allegations continue, I apologize. Those are some other factors when we're considering joint custody, and that should be the child's preference, domestic violence, primary caregiver, quality home environment. We're gonna go through each one of those. The child's preference, there's no black line rule here. I will say once a child turns 16, it can be very hard to overturn that preference, but here's some other cases. A child who was nearly 14 years old was old enough to express her wishes. A 13 year old child was entitled to place grace. The court was entitled to place great weight on the child's wishes since he was mature enough to express them and a 12 and 14 year old child's input would've been very relevant, highly relevant, and even a 12 year old, again, maybe instructive as to the child's best interest, but again, it doesn't always go that way. Children can be manipulated and may not be in the child's best interest. I know that's a case from 1977, but it's still good law. So depending where you are. But again, I will say once a child is 16 years old, it can be very difficult, that child wants to live with mom or dad, it could be very difficult for the court to say otherwise. You often hear a judge say I'm not gonna tell a 16 year old where to live. So even though they're not truly an adult at least legally, 16 or 17 year olds do basically get to say where they wanna live. But of course there are exceptions to that rule as well. And it's not binding on the court. Many judges are not gonna go against that. So domestic violence, well, this now must be considered, it's part of the law. If it's alleged, by the way, so it does have to be alleged. And in a petition, the court must consider the effects of such domestic violence upon the best interest of the child. DRL section 240 couple of cases listed there for reference. Again, it has to be alleged and its effects must be considered. Evidence of DV demonstrates character which is ill-suited to the difficult task of providing a child with a moral and intellectual guidance. Where DV is alleged, the court must consider the effects upon the best wishes of the child, again, that's from DRL 241. I'm gonna just pause hopefully for a second. Some other factors that are considered. Who's been the primary caregiver of the children, the quality of the home environment, the work schedule, maybe, I'll talk about that a minute. So basically we're talking about the primary caregiver, who's been the person caring for this child for most of the time. Hold on a second. I apologize for that. The court failed to give sufficient weight that the mother had been the primary caregiver for the children's entire lives, and that's in Fallow versus Talon, 118 AD third, 991 second department 2014. In Del Papa, the husband had a long work schedule and the children would be unattended by him for a significant amount of time. Wife has been the primary caregiver for the children's greater part of the life, so again, if one parent, and many times it is the mom or the wife has been the primary caregiver for the kids' entire lives or most of their lives. And that could go a long way considering everything else. However, if you have the other party, you can show that they're gonna change your work schedule, et cetera. So it could be a very important factor, but depending on where you are, you could try to argue that the other party's been just as involved, let's say on weekends and taking care of the children, et cetera. Another important factor is disregarding court orders. Judges and courts like their orders to be adhered to. And during the case, if someone is not filing court orders, that can be a very strong argument showing that that party is not fit to be the custodial parent. So you should always use that when you have a chance, if it does happen, and believe me, the courts know when their orders are not being filed. What doesn't really matter? Marital misconduct or any type of affairs, et cetera. A parent's infidelity or sexual indiscretions should be a consideration in a custody dispute only if it can be shown that such a factor may adversely affect the child's welfare. That's from a fourth department case, Blanc versus Blanc, 124 AD second 1010 or Linda R. versus Richard E., 162 AD second 48 second department 1990. So again, this is rarely considered by the courts. The clients may think this is important, but especially nowadays, and probably for the last 20, 30 years really, the courts really do not care what the people are doing, whether whatever type of affairs or what they're doing with somebody else, when it comes to child custody, the only rule I would say is, it's not listed here, but you don't wanna expose or have the girlfriend, boyfriend, the paramore, whatever you wanna call them. You don't want to expose them to the children while the case is going on. The courts don't like these third parties being involved. And especially if it's a girlfriend or boyfriend, so you really want to have that person stay far away from the case. Alcohol and drug abuse. And now, again, a lot of this has to do with the actual facts of the case. So even if your person you're representing has been accused of some type of alcohol or drug abuse, you want to show that they're in recovery, they're in some type of drug rehab or some program to address this issue. I always try to take a proactive approach before it's accused of my party, of my client, I should say. So if they say that, yes, they have a problem. Or if I suspect a problem, I get them into some type of therapy right away. And this way I can tell the court, look, yes, they had a problem, but they're addressing it. And 99% of judges will give that party credit for being proactive and going to therapy. So again, if they've stopped the drinking and completed the alcohol recovery program, that could be in your favor, actually, of course, if they don't address it, or if there's a long history of alcohol and of substance abuse, that could work against you. Also, again, if they've had a DWI and the children were involved in the car or had any knowledge of the parent's problems, that could be very troubling to the court. And again, if you can bring that up to the court, that look, they're doing drugs in front of the kids, or they had an accident when they were on alcohol abuse, et cetera, that could be very persuading to the court that the other parent should get custody. For example, smoking pot, even if it's legal or not, it could be used as a negative. The reality, again, if the parent is an alcohol or drug user and you allow it to continue, so what do I mean by that? Let's say you both live together and you're saying, well, gee, mom was drinking a case a night and did it for the last six months, but you did nothing about it, I mean, you're almost as guilty as the person doing it. You allowed it to continue. You didn't do anything about it. And it must have not been a real problem if you let it go on for so long. So it could be a hard argument to make if you allow this other parent's drug use or alcohol abuse to continue while you're still living together, et cetera. Now, if you're not together, that may be a whole different situation if you're not married. So again, the facts depend on each case. Tip number 10. This is our last official top 10 tip, but you'll see there, I believe there's a couple of extra bonus ones. Many clients will say they want joint custody, or my friend has joint custody. Typically they really don't know what joint custody really even means, I said that before. So joint legal custody means decision making authority, Acura versus Acura, 105 AD 3D 504 first department 2013, or another case you can cite, the parents shall share joint legal custody endeavor to reach a joint discovery regarding the kid's education, health, mental health, and day to day welfare. And that's from a national county family case matter of JJM versus MES, 20 miscellaneous third 1123 from 2008. Some cases, they'll say that the parties, if they're gonna award joint custody, joint legal custody, again, they'll say if a joint decision cannot be reached, there's gonna be a parent coordinator, not necessarily a mediator, but someone that can try to get the parents to agree on a joint decision. And again, when we're talking joint legal custody, we're talking about big decisions, education, religion, medical, and I put sometimes extracurricular. We're not talking about day to day whether they eat Cheerios or Life, what clothes they wear per se. But again, do they go to public school, private school, if they're in public school, are they gonna take advanced math or regular math or things of that nature, big decisions. Religion, of course, what religion they're going to be raised in. I find that this is becoming less and less of an issue these days, but it is up there. Medical decisions. And again, I find this also to be a little bit less, most parents will say yes. If the doctor says X, Y, and Z, we'll follow that. Except of course now vaccines and COVID vaccines. And those things have become very controversial where one party may say I don't want a COVID vaccine, the other party will say yes or just even any other vaccine. So medical used to be not so controversial, but I'll say the vaccine part of it has, but other parts not necessarily so. As I mentioned before, most judges will state quote unquote off the record though, I'm not telling a 16 year old where to live. We haven't really discussed the role of the attorney for the child, which I believe we get into later. But in many cases, a judge is going to appoint an attorney for the child what used to be called the law guardian. And that attorney for the child is, just like the word says, is the child's attorney. You might have to make it very clear to your client that this person is not their attorney. And they don't want to necessarily reveal everything about the case, because there is then no attorney client privilege between your client and the attorney for the child. Of course you want your party, your client I should say, to cooperate with the attorney for the child, but you have to be very careful there and make sure it's somewhat limited. So here's a bonus tip, number 11, again, a bonus tip, number 11. In a child custody dispute, it's important to do the following. Number one, tell your client to keep a log or a diary, keep a record of their interactions with the child. Again, it doesn't have to be very what I call Shakespeare, the King's English, could be bullet points. On July 7th we went to X, Y, Z restaurant. We got home, I read a book, they went to bed. On March whatever, we went to the zoo, whatever. So very short and brief, but it gives you an idea of what things happened. Also, whatever happened with the other party. So you could say June 10th, mom called me, started yelling and screaming and started screaming at the kid. These things you do want to keep a log on. First of all, it can be admitted into evidence and it can be kept on a computer, et cetera, as long as it's kept contemporaneously with the events that happen. You want to show that you're increasing your interaction or your care duties as soon as possible, meaning immediately, it's better late than never. So if you're a parent that was not the caregiver, the caretaking party, you want show that now you're in a sense, stepping up to the plate, taking more of a role. The court may see through this, but look, it's better late than never to show that you can be the caregiver and give those type of activities to the child. You wanna make sure that you really know your child and their activities and their times, the games they like, the books they like, their friends, the names of their friends, the names of the doctors and teachers, et cetera. It's quite old at this point. But infamously, when Woody Allen was trying to get custody of his child, he was asked, well, you claim that you're very involved, name your child's friends, and he could not name even one friend. So that blew his case right open. You should know their friends' names. Again, very basic things about your kid, they should have memorized. And so if they are in trial, they could state it like the back of their hand so to speak. Again, very similar to what we said before about child support. You wanna set the tone and your position in the beginning, if you are going for joint custody, if you're going for residential custody, make sure everybody knows it. And that the judge knows that that's your position and that they know what you want. When you arenegotiating child custody, I try to focus on the facts and not the legal words, saying, okay, this is what my client wants, this is the time my client wants, et cetera. It's good for both when you're dealing with your client and your adversary. You wanna use a calendar to show your parent's time with the child. So you can show that it's either very extensive or not so extensive. And really it's a much better visual to have a calendar than just to use words. If the parties do live close to each other, then you can try for weeknight, overnight. So that even if you have less time, think you could have the child on the Wednesday and bring the child to school on Thursday morning. Certainly when it's your weekend, it could be a Friday to Monday morning so that you can bring the child to school on Monday morning if you live close to the school. If the parties do not live close, then you want to argue maybe to have more time for school recesses, vacation, summers, whatever creative time you can think of so that if you're with a non-custodial parent, you get as much time as possible. Even though you can't maybe get overnights because of the school situation. I already sort of mentioned it. I like to argue that weekend should be Friday after school until Monday morning at the school and that this way it's a true weekend and it can get a lot more done. So again, when you're doing negotiation of child custody, you wanna focus on yourself, not necessarily the negatives of the other parent. Everybody's trying to throw mud at the other party. It's much better to say, look, I can do X, Y, and Z. Of course, if there are real negatives, we talked about parental alienation, false allegations. Of course you do wanna make that known to the court, but that it should be all encompassing, but also focusing on what you can provide. Attacking the other parent, again, everybody wants to say the other parent is the worst person in the world, but the courts usually don't focus on that. They want to hear real facts. Of course we already mentioned if there is domestic violence, again, it does have to be alleged. You should mention that. Parental alienation, if the other party's interfering with your time and false allegations. So these are the things to keep in mind when you are negotiating child custody. What are some of the positives you can say again, that your willingness to foster a relationship with the other party. So courts can award joint legal custody where it's appropriate between relatively stable amicable parents behaving in a mature civilized fashion. And that's from even from 1978, Braman versus Braman court of appeals case 44 New York second 584, Lawrence versus Davidson, second department case 109 AD third A26. However, joint legal custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability cooperate on matters concerning the child and that's Lawrence versus Davidson as well, Laura K versus Timothy M, second department 1994. And in another court of appeals case, Ock versus Ock, 52nd New York second 995 in 1982. Joint custody's improper where the parents have evidence and inability to cooperate on matters concerning the child. So joint custody awards, first department, Joanna M versus EDA, 115 AD third 460. Family court award of sole custody was actually reversed. The parties were awarded joint legal custody. There was no evidence of acrimony or mistrust between the parties. The parties were able to resolve their disputes between themselves. The father should not be deprived of a decision making role in the child's life just because he's unable to care for the child full time. See also at Victoria H, 110 AD third 636, first department 2013. The parties conducted themselves with civility towards one another. Reach compromises regarding the visitation schedule and generally set aside their personal feelings for the sake of the child. Second department case, I guess, 103 AD third 617, second department 2013. Although there was evidence of antagonism between the parties, it's also apparent that both parties generally behaved appropriately with their children and that they can make parenting decisions together and that the children are attached to both parents. Potasta versus Falcon, 148 AD third 698, second department 2017 gave joint legal custody, but they did say mom had final decision making. I personally don't like that because it basically reverts to sole custody if they can't make a decision together, it may say joint legal custody, but if one party at the end of the day has final decision making, that in a sense is just one step removed from sole custody. I'm not a big fan of it. The courts can also order what I call partial joint custody. In versus 116 AD third 962, second department 2014, it granted mother sold custody for medical and educational decision making and joint for all others. So again, for religion in that case and maybe extracurricular, they would have to make joint custody decisions for those. But mom was given sole custody decisions for the medical and education and that's something that the courts and you can also do in a settlement where you could say, well, I'm gonna give mom decision making on X and dad decision making on Y. And that sometimes balances out the powers between the parties and it's not really true joint custody, but it acts in a sense as a joint custody because it almost forces the parties to try to work together because they know that one party may have final decision making on subject X, but you have it on subject Y and this way they cooperate on both those subjects because they want to really make sure that they have input on both. Relocation, so many times of course, one party wants to relocate to a different state, a different area in the state, et cetera. The leading case here is Tropia, 87 New York second 727 1986. The rights and needs of the child must be afforded the greatest weight, the impact of the move on the relationship between the child and the non-custodial parent is the central concern of the court. But economic necessity or a specific health related concern may present a pervasive ground for why the party should move. So again, especially lately, I have been finding that the courts are less and less inclined to let one party relocate. So anyway, if you do wanna relocate, each parent's reasons for seeking or opposing the move must be considered. The court must consider the quality of the relationship between the child and the custodial parent and the child and the noncustodial parent. The court also must weigh in on the impact of the move on the quantity and the quality of the child's future contact with the non custodial parent, the degree to which the custodial parents and the child's life may be enhanced economically, emotionally and educationally by the relocation. This is all laid out in Diaz versus Diaz 115 AD third 743, second department 2014. Also in Cortez versus Cortez second department case, the relocation was allowed. The father was just released from prison and the mother could now afford a two bedroom apartment. As I said before, courts are generally reluctant to let one parent move out of state or far away, it's their burden to show why that's in the best interest of the child. And just say because it's too expensive to live here in New York isn't good enough. So you really have to show how you're going to keep the relationship between the child and the other parent. So again, if you're representing the parent who wants to relocate, you wanna say, well, gee, even though we're gonna relocate, I'm gonna fly the kid back once a month in the summer, et cetera, so they can see the other parent, you have to go out of your way to show why and what you're going to do to keep that relationship with the other parent if you're the one moving. And of course if you're the one opposing the move, you wanna show that your relationship is gonna be seriously damaged by the relocation of one parent to another place, another state, et cetera. So now we're gonna talk about the attorney for the child, the law guardian, or what used to be called the law guardian, Coppenhoffer 159 AD second 113, an appointment of an attorney for the child has been recognized as appropriate and helpful to the court. This attorney may act as a champion of the child's best interest and advocate for the child's preferences, an investigator, although that's somewhat less true or may serve to recommend alternatives to the court. Failure to appoint an attorney for the child or back then was called law guardian could be a reason why the appellate court may bounce it back. Many times, some judges like to always appoint an attorney for the child, some judges are reluctant, again, this is where knowing the judge is very important. And again, depending on the age of the child, I may be for or against or even the case, it's really a very case specific example. I mean, if you have a two year old, I mean, really what is the attorney for the child gonna do in that case? If you have a 10, 12, 13 year old, maybe that's more reason for an attorney for the child to be involved. And again, the attorney for the child acts as the child's mouthpiece, if the child says X, that attorney for the child is supposed to repeat it in court. They're not supposed to impose their own reason or position. And if they do, they have to say why. So depending on what you think the kid's gonna say to the attorney for the child that could kill your case or not because a judge is going to really look, many times a judge is gonna look for the attorney for the child for their quote unquote opinion. What does the kid want? They feel that the attorney for the child is sort of a neutral person here. So many judges will go with that. So you have to be very careful. In terms of what the appellate court say about this, it's entitled to some weight, they're not required. The judge is not required to file the recommendations of the attorney for the child, but again, I will tell you that that is more often than not courts file the attorney for the children's recommendations. You could say sort of one step up from attorney for the child is a forensic report. That is where an expert is retained, they're very expensive to do a very time consuming and very expensive report. And this would be an expert that would be assigned by the court. And the parties would typically have to pay for this could run from anywhere from $5,000 to $15,000. But the other part is it's also very time consuming. And many times the report itself is inconclusive. They don't say, well, mom should get kid, dad should get kid or whatever. Many times you can read between the lines, but it doesn't really say that. But the value of a forensic evaluation has long been recognized. And the opinions of forensic experts should not be readily set aside. That's Wilson versus Bryant, 143 AD third 905, second department 2016. However, the court is not required to file the recommendations of a forensic examiner. And that's from Zaffrin versus Zaffrin, 306 AD second 468, second department 2003. So some final thoughts. I gave you some of the top 10 tips. Again, you wanna know the incomes of both parties, know what deviations might be useful, know all expenses, make sure you set your position in the beginning, whether for child support, whether we're gonna go over the cap or not, you wanna make sure you do the math. Determine what your client really wants. Sometimes they'll say one thing, but then you discover they really want something else. When it comes to child custody, make sure that everybody understands what the difference is between joint custody and residential custody. You wanna argue about willingness to force a relationship or parental alienation and false allegations. You wanna make a schedule that works for a child and use that calendar that we talked about. Know your judges. Two more tips, tip number 12. And we've said this many times, the judge is usually the most influential factor. Each judge has their own biases. If a judge does have a reported case, make sure you look it up and read it and know it by hand. If they don't, if a judge does not have any reported cases, see if you can get a copy of any of the prior decisions from an adversary. You wanna know your adversary of course. You wanna know the attorney for the child and also very important, the judge's law clerk, many times it's the judge's law clerk that really influences the case. Make sure you do know that every case is really different. The facts of each case do really drive the case. And tip number 13, you wanna make sure you protect thyself, meaning making sure everything is documented between you and your client. Make sure you do send out those invoices, at least 60 days. I like to send them out every 30 days. Again, you'll never know when a client's gonna turn against you, is gonna try to sue you and say you did a crappy job, whatever, and you wanna make sure you have everything documented in emails or your file, et cetera. So you can protect yourself in case they do try to sue you for malpractice. I also do list the cases here in alphabetical order. I'm not gonna go through them as many and count them, but they are all listed here. I hope you enjoyed this presentation and you have a great day, thank you.

Presenter(s)

David Badanes
Owner
Badanes Law Office

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