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Family Court issues and Matrimonial issues are two (2) of the most highly charged and contentious matters argued in the New York State Court System. This is especially true when issues of Divorce, Child Custody and Visitation, Child Support, Spousal Support (Maintenance), an Order of Protection (Family Offense petition) or Abuse and Neglect case are in dispute.
New York Family Law Attorney
In this piece a New York Family Lawyer and a Manhattan Divorce Lawyer from our office have combined to give you a background of both Family Law and Matrimonial Law in New York. Hopefully, this will give you a better understanding of the law, the Court System and how to protect the rights of both you and your family
In New York State there are two (2) courts that have jurisdiction to hear Family Law Cases: The New York Family Court and The Supreme Court, Matrimonial Part. Both Courts can hear all family cases with one exception. Only the Supreme Court can hear divorce cases.
We will start with Family Law matters that are common to both courts. These are the following: Child Custody & Visitation, Paternity, Child Support, Family Offense Petitions (Order of Protection), Spousal support or Maintenance, Guardianship, and Petition for Abuse & Neglect. Please remember at the conclusion of this essay that if you still have questions or are seeking representation, Stephen Bilkis & Associates, PLLC offers a free consultation with a New York Family Lawyer to further explain or answer any questions you may have with regard to Family Law or Divorce. The firm has locations throughout New York City & Long Island. Call us at 1.800.NY.NY.LAW (1.800.696.9529) to meet us in Manhattan, The Bronx, Queens, Brooklyn, Nassau County, and Suffolk County.
We will start with Family Court cases and a working definition from a New York Family Lawyer of the type of people to which the Family Court will grant standing. The people the Family Court will hear are any persons who share a blood relationship, a close personal or intimate relationship or who share a child in common. We shall begin with the most common type of relationship; parents who share a child in common.paternity. Has it been established? This can be done in many different ways, including DNA Testing, Birth Certificate or other documentation and/or admission, including holding the child out to the public as your own. (For more information with regard to Paternity click on New York Paternity Lawyer.)
The legal standard The New York Family Court uses in determining custody is “what is in the best interest of the child”. Once Paternity has been established the issues of Child Custody & Visitation along with Child Support are decided. We will focus first on Child Custody to determine who will be the custodial parent and thus the parent entitled to receive Child support. Each New York Family Lawyer in our office advises each of our clients that there are three (3) main types of Child Custody: Full Custody, Joint Custody, and Residential Custody. Full Custody gives that parent the authority to make all decisions for the child without consent of the other. The only obligation of the parent in full custody is to inform the non-custodial parent of major issues and decisions that are ongoing with regard to the child. Joint Custody is exactly what it implies; the non-custodial parent is given equal decision making with regard to all major issues in the child’s life such as education, medical and religious decisions. The final type of Custody is Residential Custody and gives the parent who receives it the right to have the child with him or her.
As any New York Family Lawyer will tell you, the next step in a Family Court Matter, after Paternity and Child Custody have been established, is Child Support. If there is a Child Custody order in place or a Child Custody case is ongoing, the court, in all probability, has issued a temporary custody order. Either way that custodial parent is now entitled to Child Support. Thus, the non-custodial parent is obligated to pay child support. The standard child support guidelines are as follows: One Child = 17%, Two children = 25%, Three Children = 29%, Four Children = 31%, Five Children or more = 33%. There are many issues that the court evaluates including day care expenses, medical expenses, etc. in determining a final Child Support award. (For more detail use the following link to Child Support Lawyer)
Another vital issue the Family Court will consider is Child Visitation for the non-custodial parent. While most people are aware that “Standard Visitation” is every other weekend, alternating holidays and 4 weeks vacation, our New York Family Lawyers will tell you that many judges have become more flexible and liberal with visitation if they believe there is a good parent seeking the extra visitation. Part of the reason for the new view of the Family Court is that the courts do believe it is in the best interest of the child to have two parents actively involved in the child’s life. (To read more about Visitation follow the link to New York Visitation Lawyer.)
Any Divorce Lawyer will tell you that all Divorce Matters are heard in the Supreme Court of the State of New York. Each county has a part regardless of whether it is in New York City (Manhattan, Brooklyn, Queens, The Bronx, or Staten Island). Long Island (Nassau County and Suffolk County) has their own Matrimonial Parts of Supreme Court. Any Manhattan Divorce Lawyer will tell you a Divorce is the legal dissolution of a marriage. Be aware, there is no common law marriage in New York State.
A condition of having a divorce granted in New York is having grounds for a divorce. Grounds are a legal excuse to dissolve the marriage i.e., abandonment, constructive abandonment and cruel and unusual treatment, which are the most common grounds for Divorce in New York State. If there are children in the marriage then the process discussed above with regard to Child Custody, Child Visitation, Paternity, and Child Support all move forward accordingly. After grounds and child issues, the next highly litigated area in a Divorce is “distribution of the assets.” A Manhattan Divorce Lawyer will tell you this covers three (3) major areas; Equitable Distribution (dividing the assets fairly), Maintenance or spousal support, and Occupancy of the home.
Equitable Distribution covers all assets that were attained from the date of marriage and forward. However, there can be exceptions such as inheritance and “prenup” exclusions. There can be issues of valuation of the assets. The distribution of the assets can be contentious, but in the majority of cases there is a 50/50 distribution.
There are two types of Spousal Maintenance; Rehabilitative and Permanent. Maintenance is awarded in instances where there is a primary “bread winner.” If a spouse has given up a career or delayed a career, the court’s main goal is to have maintenance awarded with the hope of compensating the spouse and giving the spouse time to reestablish (when possible) the career that was delayed or interrupted. The court will place a time period on this type of maintenance, if they believe the party can reestablish their career, and this is called Rehabilitative Maintenance. If the court believes there is no opportunity to reestablish the lost career or establish a career for this spouse, the court may issue a Permanent Maintenance order, which is paid for the lifetime of the spouse. (There is no alimony in New York State.)
Other areas of Family Law are Family Offense Petitions or an Order of Protection. An Order of Protection can result when an emotional situation either erupts in violence or the threat of violence. As any New York Family Lawyer from our office will tell you, these types of cases can cross from a Family Law Matter very quickly into a Criminal Issue. In a flash, you can go from needing a New York Family Lawyer to needing a New York Criminal Lawyer. Many times the allegations are of Domestic Violence (i.e. assault, child abuse or even a sex crime. These cases have to be handled with particular care because the testimony to the Family Court or Divorce Court Matter can be used in a prosecution by the office of the District Attorney. If you would like to receive more information with regard to an order of protection in family court follow this link New York Order of Protection Lawyer
When there are allegations of Abuse & Neglect involve children, ACS (Administration for Child Services) or Child Protective Services will investigate the case.
If the allegations of Child Abuse are in Manhattan, The Bronx, Queens or Brooklyn, ACS has jurisdiction over the issue. If the allegations of Abuse or Neglect happen in Long Island, in either Nassau County or Suffolk County then, Child Protective Services (CPS) handles the matter. They have the authority to remove the child or children from the household, if after their investigation they believe the child/children to be at risk. After the agencies conclude their investigations, they may “indicate the party” or have the report come back founded. (“Indicating that the party” means there is a finding against the party). After a finding of Abuse & Neglect, the “guilty” party can be put on a state registry. If the offending party is a parent, the Court can also take measure to limit access to the child, which may include Supervised Visitation or even termination of parental rights. (If you would like to get more information on this click the link New York Abuse & Neglect Lawyer.)
The final Family Law area we will discuss is Guardianship Law. There are two (2) main types of Guardianship and a New York Guardianship Lawyer from our office can guide you through them. Family Court handles Guardianship issues for children under the age of 18. For those who are over eighteen (18) and are alleged to be incapacitated, because the person is not able to care for themselves those Guardianships are handled by the Supreme Court. In Family Court matters, generally, a guardian is needed when there isn’t a parent either capable of or willing to take care of the child. The Court prefers guardianship’s as it can eliminate the need for a Foster home. (If you would like read more about Guardianship click the link New York Guardianship Lawyer.)
Many times people feel powerless in the Family Court system and have difficulty understanding and interpreting the Family Law. Each New York Family Lawyer in our office understands that even if the powerlessness a person feels is only perceived, it can cause stress and difficulty navigating the particular legal issue. Especially, when the stakes are a high a family court case. That’s why our firm strongly advocates for Fathers Rights, Mothers Rights as well as Grandparents Rights regardless of the family matter.
The Law Firm of Stephen Bilkis & Associates, PLLC has vast experience in the area of Family law: including Divorce, Child Support, Child Custody, Visitation, Guardianship, Family Offense Petitions (Order of protection), Abuse and Neglect, Paternity and Spousal Support (Maintenance). Each New York Family Lawyer in our office is highly skilled and knowledgeable and ready to help you with your Family Law Matter. Moreover, the Law Firm offers no obligation, free consultation. So call us at 1.800.NY.NY.LAW (1.800.696.9529). We have convenient locations throughout New York City and Long Island. So come to see us in Manhattan, Brooklyn, Queens, Bronx, Staten Island, Westchester County, Suffolk County or in Nassau County