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On Behalf of The Law Offices of Joseph H. Nivin, P.C. If you are in the process of divorcing your spouse, your odds of receiving the outcome you want may depend on both New York law and your unique set of facts. If you have kids, though, the state has an interest in ensuring custody aligns with their best interests. Having no valid immigration status can make life difficult. Even if you have legal permanent residency or some non-immigrant status, you may feel disadvantaged. Fortunately, your immigration status or lack thereof probably should not affect the outcome of your custody dispute. Separate jurisdictions With few exceptions, family-related matters fall within the legal jurisdiction of the court of New York. Immigration law, by contrast, is a federal matter. Therefore, you should not expect the judge in your case to wade into the technicalities of your immigration status. In most cases, you also do not have to worry about a New York judge reporting you to immigration officials. The best interests of the child standard When making custody determinations, judges in New York have a legal obligation to determine what is in the best interests of the children. To do so, they closely examine a number of factors. While this list is not complete, the following factors are likely to be relevant: Your relationship with your kids Your ability to provide a stable and healthy environment for your children Your history of substance abuse or criminal activity Your childrens’ educational and other needs While New York law does not include immigration status in the factors judges must consider, some immigration-related matters, such as a deportation order, may run counter to the best interests of your kids. Ultimately, to increase your chances of receiving an acceptable custody arrangement, you may want to pursue legal counsel from both an immigration attorney and a family lawyer.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Pets are precious members of the family and as such, they become a hot-button issue in cases of separation and divorce. However, no matter how strongly pet parents feel about their beloved companions, courts cannot equate pet custody to child custody in contested divorce cases. Pet custody criteria in New York Judges determine child custody arrangements by considering the best interests of the child, but when charged with deciding where the family dog, cat or bearded dragon should reside, New York courts use the following criteria: Who legally owns the pet? How did the pet join the family (purchased, adopted or gifted)? Which of the parties took on most of the pet care during the marriage? Who is in the best position to meet the daily needs of the pet? What pet custody arrangements have the parties agreed to post-split? Due to caseload issues, not all courts will agree to hold pet hearings, and these judges may issue an order for animals that follows the child visitation schedule or leave the pet custody decisions entirely to the parties. Special considerations for service animals Registered service animals aid persons afflicted with disabilities such as visual, hearing or mobility impairments. As such, the party in need will likely retain ownership of the service animal after the divorce. Because the law regarding live beings is everchanging, judges’ decisions often occur in a gray area of the law between custody and personal property. Therefore, it is important to understand how courts in your district typically approach the subject of pet guardianship in divorce cases.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Going through a divorce is not easy and figuring out a fair child custody arrangement adds another layer to the process. Each case is unique, and the courts can tailor the custody arrangements to accommodate your specific situation. Among others, the following factors play a large role in determining the custody arrangement. 1. Best interest of the child Your child can experience upheaval due to the divorce, even if you take steps like nesting to minimize disruptions. The court will examine the home environment and consider any allegations of abuse when making a determination. This process can help ensure that your child lives in a stable and supportive environment. 2. Age and capabilities of the child Your child’s age and capabilities are a crucial component of the custody arrangement. If your child can state their wishes, then the court will take that into account. A teenager who can drive may prefer a more flexible arrangement, as he or she can travel between the two households more readily than a child in elementary school. 3. Parent’s willingness to work together If you and your former partner are willing to work together to come to an agreement, this can facilitate the process. Although you may not agree on every aspect, demonstrating a willingness to work together reflects well on both parties. This cooperation can help your child adjust to the divorce more readily. While you and your former partner may no longer want to be together, it is important to work together to find a solution that keeps your child’s best interests in mind.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. As a parent, you want to be there for your children and to see them as much as you can. With a two-parent household, it was easier for you to see them even when you had to work, because you could be there are much or as little of the time as possible and still know someone was there to protect them. Now, you’re in a difficult position. If you take custody of your children, there are days when you will be on call. You’ll have to go into work if you’re called, and there may not be another person available to care for them. As a surgeon, EMT, firefighter, police officer or other person who has a job with on-call hours, this can be a devastating blow to your custody case. When you work on-call hours, you have to consider alternatives When you can’t pin down your schedule, you will need to consider alternatives that allow you to spend time with your children while still fulfilling your work-related obligations. For example, would it be possible to hire an in-house nanny who lives with you and is available during your on-call shifts? Then, if your children are staying with you, the nanny would already be there if you had to leave suddenly. If you end up not being called in, that’s even better, since you’ll get more time with your kids. Another option may be to have a neighbor or family member nearby who is willing to watch your children. You could also look into daycares or play areas offered by your employer so that your child can be safely monitored at your place of work while you’re doing your job. It can be hard to navigate custody issues when you have an irregular schedule, but that doesn’t mean that you shouldn’t get to see your children. You do an important job, and needing to be there in emergencies doesn’t mean that you don’t care about your child’s wellbeing. It’s worth looking into alternative options for daycare or babysitting, so that you can set up a regular custody schedule with confidence.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Divorce has the potential to affect children negatively. After learning about the end of your marriage, your children may experience anger, sadness, depression or even ambivalence. To help children cope with divorce, some parents choose nesting. Sometimes called bird nesting, nesting is a post-divorce arrangement that keeps the family home intact. With nesting, the kids always live in the same place. Each co-parent rotates into the family home while living in a separate location during non-parenting time. Nesting requires cooperation At the beginnings and ends of your scheduled parenting time, you and your former husband or wife must be willing to relocate to and from the family home. Consequently, for an effective nesting arrangement, you and your ex-spouse must be on good terms. Nesting provides stability Shuffling children between two households may discombobulate them. With nesting, your children always have the same place to call home, giving them access to a stable and predictable environment. Nesting smooths custody transitions Preparing the kids for the custody transition is often easier with nesting, as children do not have to pack or ready themselves emotionally to move temporarily to their other parent’s home. With nesting, there is also less chance of losing essential items, like homework or medication, or treasured ones, such as a security blanket or stuffed animal, during custody swaps. Nesting does not have to last forever A long-term nesting arrangement may be impractical. Fortunately, you, your ex-spouse and your kids do not have to nest forever. Nesting for a few months or until your children acclimate to their post-divorce world may help to minimize the negative toll your divorce may take on them.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. The findings of a study consisting of women in various stages of divorce showed that many were unprepared for upcoming financial “surprises.” The women cited a variety of potentially problematic financial issues as a result of divorce, and, among all age groups, there was one universal concern. About the study The online marketplace Worthy conducted the 2018 study entitled “Building a Financial Fresh Start.” The participants included 1,785 women who were either already divorced, facing divorce or somewhere in the process. When asked if they had encountered any unexpected financial issues, 38% of the women aged 55 or older said they had while nearly half of those in younger age groups admitted to experiencing financial surprises. Financial role in marriage To better understand these answers, the survey questioned participants about their financial role while married. About 23% of women between the ages of 18 and 54 said they had relinquished all marital financial control to their husbands while 18% of the women 55 and older had done so. Biggest financial concern Many of the survey participants worried about having to take responsibility for all post-divorce financial decisions, including earning a living, managing a budget and saving and investing for the future. Overall, the biggest financial concern was having to live on one income. Retirement worries The study showed that 38% of the 55-and-over age group expressed concern about the retirement years, a number that was twice as high as reported by millennials who have more time in which to prepare for retirement and become educated about investment matters. The survey highlighted how important it is for women to cultivate an understanding of their finances while married, just in case divorce ever appears on the horizon.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Many households find that it is more cost-effective to have one spouse stay home to take care of the house and children than it is to pay for childcare and to hire professionals for things like cleaning and cooking. Staying at home can have a lot of benefits, from maintaining control over the state of your house and your diet to having time with your children while they are young. Unfortunately, if you are the one who stays home with the kids, it can put you on uneven footing with your spouse if your relationship starts to fall apart. You might feel like you have no options because you can’t currently support yourself or your children with the kind of wage you can command. Instead of staying in an unhappy marriage just because you feel like you don’t have options, it is smarter to learn about what resources you do have if you believe you need a divorce. If you file for divorce, you may be able to stay in the family home If you are the one who provides most, if not all, of the care for your children, it could mean that you have a claim to at least temporarily stay in the family home when you file for divorce. The courts will consider your current role when setting a temporary custody order. They want to do what’s best for the kids, which usually involves minimizing disruption. That could mean a temporary situation where you stay in the family home with the kids until the courts make more final decisions. You can ask for spousal support in some cases Child support is more or less automatic when a couple with minor children initiates divorce proceedings. However, you will have to ask for alimony or spousal support if you think you need it. The court will evaluate your request based on factors like the length of your marriage, your earning potential, the custody of the kids and your spouse’s income. You can even ask for help paying for your attorney Good legal advice is critical for those going through drastic life changes, like divorce. You shouldn’t have to forego getting adequate help just because you haven’t been earning a wage in the last few years. New York courts can and do allocate attorney costs to the spouse with resources in a divorce situation where one spouse does not have enough income to cover their attorney fees. Even if the courts do not order your ex to pay your lawyer costs, there may be other forms of help available. Your parents, for example, may help cover the cost of getting a lawyer because they want to ensure good custody terms that will protect the relationship with their grandchildren. Extended family can also help you by offering you resources for employment or education and even a place to stay where you won’t have to incur steep rental costs. Asking for help and getting advice before you initiate divorce proceedings as a dependent spouse can set you up for a more comfortable transition to your new life.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. When it comes to divorce for parents with minor children, few things are more contentious than the amount of support that the New York courts order one parent to pay the other on behalf of the kids. Child support often falls woefully short of covering the expenses that children incur every month. Between clothing for bodies that are constantly growing, food, shelter and medical insurance, each child could represent hundreds or even thousands of dollars worth of expenses every month. The parent receiving support is likely to feel like the amount that they receive is not nearly enough for what they have to spend. Of course, having a large amount taken out of a paycheck also feels unfair to the parent paying child support. It is a difficult decision that the courts have to make based on both state law and your family circumstances. What are the primary factors that dictate the amount of child support paid during and after a divorce? The New York courts focus on two primary factors Unlike in other states, where child support reflects a number of factors, in New York, the number of children and income of the parent paying are the primary considerations. Those who make up to $148,000 will pay a percentage of their wages based on the number of children they have. One child could mean paying 17% of your wages in support, while two could result in paying 25%. Three children will mean paying 29% of your income, four kids mean 31% and five or more will mean at least 35% of your wages go to child support. For parents who make more than $148,000 a year, the judge presiding over their divorce case can decide whether they want to apply the percentage rule or deviate from it because of the higher level of household income. Support levels are not set in stone despite being a court order The judge in your case will issue a child support order that compels the non-custodial parent to pay a certain amount of support. This process is often automatic, with employers withholding money directly from someone’s check to ensure that child support always gets paid. Given that child support is the result of a court order and a legal obligation on the part of the parent paying, many people assume that once they have a support order, it will remain the same until the children age out of support. However, New York does allow both the parent paying support and the parent receiving child support to request a modification hearing when circumstances drastically change. Fighting for reasonable support levels in your divorce is as important as following up with modification requests when the needs of your children or your income changes.

by josephnivin As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, serves to eliminate it. Mediation, whenever possible, is an easier and less expensive process than litigation for your family law clients. It helps them decide between themselves how they will raise their children, even though they will no longer be in a relationship with each other. Below is advice you can give your clients to let them know why custody litigation is so much more difficult than mediation. Going Through the Litigation Wringer Litigation is scary, and fear leads to anger. Anger is the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already existed. Even getting served with a petition that lists your ex as a “petitioner” and you as the “respondent” is enough to make your blood boil. This is only the tip of the iceberg. If your child is old enough to express opinions on the application for custody or visitation, then your child will be assigned an attorney whom you do not know. That attorney needs to interview your child outside of your presence. If the attorney determines that your child is unable to use independent judgment to decide what he or she wants, then that attorney, who may or may not be a parent or have any knowledge about child development, must take a position based on his or her own opinion. You have no say at all in the position that the attorney takes. If the attorney determines that your child is able to exercise independent judgment about his or her position in the case (usually if the child is at least seven years old), then the attorney must, except in unique circumstances, advocate for what your child wants. So, if your child is 12 and you don’t let the child use social media, but your ex does, and your child wants to live with your ex for no other reason, then the attorney must advocate for your child to live with your ex. While the attorney for the child’s position does not take away the judge’s ability to decide otherwise, the position of the attorney for the child is very important, even if the position is based on nothing other than the child’s wants. The result? Custody litigation gives children a great deal of power over their parents. Remember that fear that we were talking about? It drives parents to go to war against each other. Mistakes that everybody makes are blown up to make the other person look like the most neglectful possible parent. Unless you qualify for assigned counsel, you and your ex will pay for the whole show. You may even be ordered to pay for the attorney assigned to your child, even if the attorney is going to court and bashing you. You may also need to pay for a forensic evaluation, in which a psychologist evaluates you, your ex, and even your child. The only way in any litigation, including custody cases, to limit the expense is to settle the case, or in other words, to come to an agreement. As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult. This same animosity creates more work for the lawyers, which makes the litigation more expensive. There might be such bad communication that the lawyers need to resolve relatively minor issues for you and your ex, such as minor modifications to the parenting time schedule for special family events. Lawyers charge by the hour for the time that they spend doing this. There are often other applications that people tell their attorneys to make, such as applications for temporary custody. If your ex asked his or her lawyer to make such an application, and you want your lawyer to respond to it, then you will need to pay your lawyer to do so. You may even need to pay the attorney for the child to respond to it, even if the attorney is supporting your ex. In some cases, the court can order your ex to pay your fees, but even if the court says no, you’ll need to pay your attorney for the time that he or she spent making the unsuccessful application, in addition to the time already spent responding to your ex. What Is the Solution? Mediation The easier, softer way is to reach an agreement with your ex about custody issues before going to court. This may be no easy feat, and it may be extremely frustrating. However, it will probably be easier than litigation. But do note that mediation is not a good option in cases involving domestic violence, child abuse or neglect, or parental alienation. If you need a mediator, then do your homework before hiring one. Anybody can put up an ad on Google and open a mediation service, with no training or knowledge on the subject. There is absolutely nothing illegal about that. Therefore, do your research and make sure that you get someone qualified. If you find yourself in court, make it as boring as possible. The less that’s going on, the cheaper and less stressful the process will be. Treat your child’s parent the way that you would expect someone who respects you to treat your parents. This doesn’t translate into “be a doormat.” Just don’t let anyone make you do things that make you feel ashamed of yourself. Remember that your children will always see your behavior as acceptable, so don’t do anything that you’d tell your children not to do. So How Can Your Lawyer Help? Lawyers with mediation experience can advise you on what actions are likely to cause your case to take the nightmare track that was already discussed, and what actions are likely to prevent it. Your lawyer can advise you during your mediation. Not all mediators are lawyers. A lawyer can advise you about whether the settlement options being discussed in mediation are fair, and more importantly, whether they are likely to give you a good future. Lawyers can also advise you about any issues that should have been discussed that were missed, and whether the proposed settlement has “holes” that leave you vulnerable to future litigation. Of course, it takes two to mediate. If you find yourself in court because your ex is hell-bent on going there, an attorney can create a game plan to put you in the best possible position for settlement or trial. In most cases, people end up settling before they get to trial. If you can’t settle, then there will be a trial, and you will need a lawyer for that. Conclusion The family court system creates unnecessary animosity between separated parents, which compromises people’s abilities to effectively co-parent. It falls on parents to come up with alternative ways to work out parenting time and support without unnecessarily damaging their abilities to raise their children together. If you are in a situation where the other parent is not cooperating with you, then an attorney can help you to minimize the animosity, the emotional toll, and the expense of litigation. If you have a co-parent who is willing to work with a mediator, then attorneys can advise you during the process, help you to resolve issues of custody without litigation, and work with you to minimize the risk that you will need to go to court in the future.

by josephnivin In this “Just the Facts” series, I’ve already covered Child Support, Custody Cases, and When Mediation Doesn’t Work. I’m now sharing the most powerful lesson — and also the simplest — for the final installment of this series: Follow the Golden Rule. Treat others how you want to be treated and also insist that your needs, and those of your child, are respected. Remember that your children will always see your behavior as acceptable, so don’t do anything that you’d tell your children not to do. Treat your child’s other parent the way that you would expect someone else to treat your parents. This doesn’t translate into, “be a doormat.” Just don’t let anyone make you do things that make you feel ashamed of yourself. If you find yourself in court, make it as boring as possible. Don’t throw stuff at the wall and hope that something sticks. The less that’s going on, the cheaper and less stressful the process will be. That’s because there will be fewer issues for the attorneys to fight about, and as a result, fewer issues that you’ll have to pay your attorney to fight about.  It will also mean fewer court appearances to attend because there will be fewer issues that the court will have to handle. If you’re the custodial parent and the other parent simply will not support your child without a court order, then go to court. If you have an order of support, and the other parent doesn’t pay it even though they can, then go to court to enforce the order. People do not have the right to ignore their obligations to support their children. If you are in a situation where the other parent is not cooperating with you, then an attorney can help you to minimize the animosity, the emotional toll, and the expense of litigation. If you are fortunate enough to have a co-parent who is willing to work with a mediator, then attorneys can advise you during the process, help you to resolve issues of custody and support without litigation, and work with you to minimize the risk that you will have to go to court in the future. I wrote this “Just the Facts” series from my heart. I care deeply about families and aim to help them with their conflict. I hope this series has eased concerns or answered questions you may have had. Do you have any other questions or concerns about your family matter? Please do not hesitate to contact my office at (347) 642-0376 or schedule a consultation via our website.

by josephnivin By now you’ve probably figured out that mediating your divorce makes sense in most cases — and you may be wondering about what types of cases are not a fit for mediation. If there is domestic violence, child abuse or neglect, or parental alienation, litigation becomes the only option. It is generally impossible to mediate a case if: You are genuinely afraid of the other side. You and/or the children need protection from the other parent’s abuse. The other parent is actively trying to alienate your children from you. In those cases, you generally need to go to court to get orders protecting you and/or the children from the other parent’s behavior. That said, there are certain situations in which resolving your case in mediation is highly improbable. Sometimes people find themselves in court simply because an ex is hellbent on going there. In that case, an attorney can create a “game plan” to put you in the best possible position for settlement or trial. Even with an ex who wants his or her “day in court,” most cases end up settling before trial. Sometimes it’s not the ex who is pushing you into court. I once represented a father who had already come to an agreement with his wife about how often he would see his children. The documents were drafted and ready for signatures. However, his mother-in-law did not like him, so she convinced his wife to change her mind about agreeing to the schedule. She only let him see the children at the home that she shared with this same mother-in-law, and she took him to court for custody. The judge put into place the schedule that my client and his wife had previously agreed to, and then adjourned the case for possible settlement. After my client dutifully avoided arguments with his wife and mother-in-law, the wife withdrew her application for custody and agreed to follow through with the original agreement.  Nobody’s telling you to be a doormat, but as I always say, it’s always better if your situation is as boring as possible while you’re in court.  “Boring” usually means less expense, less stress, and fewer court appearances. Whether your case is in mediation or you’re already in court, your lawyer can advise you on what to do (or not to do) to prevent your case from going into a tailspin. When your case is on the “settlement track,” a lawyer can advise you about whether the settlement options being discussed are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed and whether the proposed settlement has “holes” that leave you vulnerable to future litigation. To summarize, if you are in settlement discussions with the other parent, then lawyers can advise you on issues that should be discussed, whether the proposed agreements are fair to you and to the children, ways to make the agreement less vulnerable to future litigation, and possible creative ways to come to a resolution that is in your child’s best interests. Stay tuned for the final installment of my Just the Facts series. Have any questions about mediation, litigation, or any other family law matter? Don’t hesitate to reach out to me via my website or call me at (347) 642-0376. Joseph H. Nivin, Esq. The Law Offices of Joseph H. Nivin, P.C. (347) 642-0376 118-35 Queens Boulevard, Suite 1220A Forest Hills, NY 11375 The Chanin Building 122 E. 42nd Street, Suite 2100 New York, NY 10168

by josephnivin As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, eliminates trust — to the detriment of the children. The most basic reason why the current system for resolving custody issues is so bad for children is perhaps the hardest to cure. When parents are breaking up, many assume that they will go to court and that a judge will decide who gets custody. The better alternative is not as well known. Mediation helps people to decide, between themselves, how they will raise their children even though they will no longer be in a relationship with each other. Unfortunately, rather than seek a mediator, many people currently go to court first. Even when people go to a mediator first, when it becomes too difficult, many then go to court, which they see as the “default” simply because it’s a better-known forum. So why is litigation so much worse than mediation? First, litigation is scary, and fear leads to anger. Anger leads to the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already exists. Even getting served with a petition that lists your ex as a “petitioner” and you as the “respondent” is enough to make your blood boil. Once in court, if your child is old enough to express opinions on the application for custody or visitation (in the judge’s opinion, sometimes as young as four), then your child will be assigned an attorney — an attorney who you do not know from a hole in the wall. That attorney has to interview your child outside of your presence. If the attorney determines that your child is unable to use independent judgment to decide what he or she wants, then that attorney — who may or may not be a parent or have any knowledge about child development — has to take a position based upon his or her own opinion about what is in your child’s best interests. Parents have no say at all in the position that the attorney takes. If the attorney determines that your child is able to exercise independent judgment about his or her position in the case (which usually translates as the child being at least seven years old), then the attorney must, except in very unique circumstances, advocate for what your child wants. If your child is 12 and you don’t let the child use social media, but your ex does, and your child wants to live with your ex for no other reason, then the attorney has to advocate for your child to live with your ex. While the attorney for the child’s position does not take away the judge’s ability to decide otherwise, the position of the attorney for the child is very important — even if the position is based upon nothing other than the child’s wants. Unless you qualify for assigned counsel, you and your ex will pay for the whole show. You may even be ordered to pay for the attorney for the child, even if that attorney bashes you in court. You may also have to pay for a forensic evaluation, where a psychologist evaluates you, your ex, and even your child, to help the court to come to a determination. Custody cases can, and do, bankrupt people. The only way to limit the expense of any litigation is to settle the case. As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult. The easier, softer way is to try to come up with an agreement with your ex about custody issues before going to court. This may be no easy feat, and it may be extremely frustrating. However, for the reasons that you have already read, it is probably easier than litigation. This does not apply in cases where there is serious domestic violence, child abuse or neglect, or parental alienation. If I have convinced you to talk to a mediator, please do your homework before hiring one. Not all mediators are lawyers, and even those who are can’t give you legal advice. A lawyer can advise you about whether the settlement options being discussed in mediation are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed, and whether the proposed settlement has “holes” that leave you vulnerable to future litigation. Do you have any questions about your custody case? Don’t hesitate to reach out to me with your questions or concerns. Stay tuned for the next installment of my “Just the Facts” blog series on important family law matters. Joseph H. Nivin, Esq. The Law Offices of Joseph H. Nivin, P.C. (347) 642-0376 118-35 Queens Boulevard, Suite 1220A Forest Hills, NY 11375 The Chanin Building 122 E. 42nd Street, Suite 2100 New York, NY 10168