On Behalf of The Law Offices of Joseph H. Nivin, P.C.

Your next steps to fighting an “Indicated” report from Child Protective Services are critical. Child protective services investigations are frightening and humiliating. It adds insult to injury when, after an investigation, you get a letter saying that the report was “indicated.” This means that child protective services, whether it was the Administration for Children’s Services (ACS) in New York City, or the Department of Social Services in another county, found “some credible evidence” that you abused or neglected a child in your care. To make an “indicated” finding, the caseworker does not even have to find that the abuse or neglect probably happened, only that there was “some credible evidence” that it did.

Even with this low standard, the consequences are high. The report will remain on file with the New York State Office of Children and Family Services (OCFS) until the youngest child in the report turns twenty-eight (28) years old. If you apply for a job in the child care field (teacher, teacher’s aide, paraprofessional, day care worker), or to become a foster or adoptive parent, then the “indicated” report will hurt your application. If you are engaged in custody litigation, there is a good chance that the other party will find out, and that he or she will use it against you in court.

You can fight the report. You have ninety (90) days to request that the report be amended to “unfounded,” meaning that there is no credible evidence of abuse or neglect. That request must be made in writing. Your letter must include your name, address, and the case number, which can be found on the letter that you received from the agency. The letter should state that you were the subject of the indicated report, and request that the report be amended to unfounded, or in the alternative, that it be referred to the Bureau of Special Hearings. You will send it to the Office of Children and Family Services, PO Box 4480, Albany, NY 12204.

Everybody requesting that amendment has to sign the letter. Therefore, if report was indicated against you and your spouse, you and your significant other, you and your parent(s), etc., then all of you need to sign the letter seeking an amendment. In the meantime, get into services. What this means is that you need to address whatever alleged behavior led to the “indicated” finding. It is not an admission of guilt. If the allegations were of excessive corporal punishment, then take parenting skills and anger management classes. If you were accused of drug or alcohol abuse, then get into a

treatment program. If the allegation was of mental illness, then get into mental health treatment. Make sure to give your treatment your best effort, get good reports from your providers, and keep those reports in a safe place.

You will get a response from the State. In most cases, the letter will state that the Office of Children and Family Services decided to uphold the indicated report, and that the report was reasonably related to an application to become a foster or adoptive parent or to employment in the child care field. That means that the State decided to keep everything the same. Your case will be sent to the Bureau of Special Hearings, where you can continue to fight the report.

You will then get a letter from the State telling you the date, time, and location of your first appearance. As the letter will state, the first appearance will be for a conference only, which is a nice way of saying, “Nothing will really happen.” While the letter will tell you that you will find out who the agency’s witnesses will be, and what evidence it will present, at the hearing, you should not count on that actually happening.

At the conference, you will receive the case record, which contains detailed notes about everything that the agency did during its investigation. The record will include the reason why the agency concluded the investigation as indicated. You will also meet the judge and the agency attorney. You will get a new date for a hearing.

At this point, the reports from your service providers will be important. You should send copies to the agency attorney, which may, or may not, convince the agency to agree to unfound the report without a hearing.

If the agency decides not to agree to unfound the report, then you will have a hearing. It will be important to get updated reports from your service providers beforehand.

The hearing is very informal. The case record will go into evidence. The agency will usually call the caseworker as a witness, who will testify to his or her investigation. You (or your attorney) will get to cross-examine the caseworker. Hearsay is admissible, meaning that the caseworker can testify to what other people said. In some cases, the agency will call more than one witness. The agency may also submit documents, photographs, etc. into evidence.

After the agency presents its case, then you will get to present your own. At this stage, you will present evidence to show that the allegations were not true. You will testify, meaning that either you will simply state your side of the story, or if you have an attorney, he or she will ask you questions about what happened.

After you present your side of the story, the agency attorney will get to ask you questions, designed to show either that what you are saying is untrue, or that there is more to your story than what you presented.

You can also present documents, photographs, etc. that support your side of the story. If you want, you can also call other witnesses, who the agency attorney will also get to cross-examine.

After you present your case, the judge will ask whether you want to present anything with respect to “R & R.” That stands for “reasonably related,” and means, “Let’s say that I find that you did the things that the agency says you did. Why shouldn’t it hurt you if you want to become a foster or adoptive parent, or get a job in the child care field?” You should present updated reports from your providers. You can tell the Court about what led to the allegations (a toxic relationship, death/illness in the family, mental or physical health issues), what changed, your remorse, what you’ve learned from the service providers, etc.

You will then get a letter in the mail, stating whether the judge decided to overturn the report and make it unfounded, or whether to keep the report as indicated. If the report remains indicated, and you wish to challenge it, you will have to file for an Article 78 hearing. You will need an attorney for this.

If you win the hearing, and the report is unfounded, then you are in good shape. If you apply for a job in the child care field, or to become a foster or adoptive parent, then the employer or the foster care/adoption agency will not find out about the report. Also, if you have a custody case in Family or Supreme Court, then the report should not be considered. (However, your ex can still testify to his or her version of events, even if they overlapped with CPS’ findings. Your ex simply cannot use the fact that the agency indicated the report based upon those events.)

If the judge finds that the allegations in the report were true, but that they were not reasonably related to becoming a foster or adoptive parent or getting a job in the child care field (in other words, but you’re better now), then that has the same effect as if the judge found that the report was not true. In other words, while it would be more of a moral victory if the judge found that the report was based upon lives, your life will be exactly the same if the judge instead finds that you did what you had to do to become a better person.

An attorney who is familiar with OCFS fair hearings can help you if you end up on the wrong side of a CPS investigation. The Law Offices of Joseph H. Nivin, P.C. has significant experience representing people in fair hearings challenging indicated reports. Call (347) 642-0376 for a consultation at a reasonable rate.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Divorce Mediation allows separating and divorcing couples to meet in a less-stressful environment than a courtroom. A mediator is a trained and neutral party who will guide you and your soon-to-be ex through the process of reaching a fair agreement. Mediation is a smart plan helping couples to avoid the emotional toll and financial burden of divorce litigation, which is far more expensive and time-consuming than mediation.

Mediation helps couples to take control of planning their new lives. A mediator will facilitate the meetings, provide information about the legal system when requested, and help the couple to explore potential resolutions.

Although divorce can be an emotional and difficult time, mediation has shown historically to work and save couples time and money. For complicated cases, outside experts such as accountants, appraisers, financial planners may be consulted.

Before and during the mediation process, you have the right to consult with independent legal counsel. Both parties will meet with the mediator and after an agreement has been reached, the mediator will draft a Memorandum of Understanding.  A drafting attorney will prepare the final documents for signature by a judge.

If you’re looking for a more peaceful and civil way to divorce, than mediation should be strongly considered.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

As a family law attorney, I represent people facing child protective services investigations, and often receive calls from people asking what they should do when a caseworker knocks on the door. Here are answers to the most 5 common questions about child protective services and how you can get prepared.

Question 1: Do I have to let them in?

The answer is, “no, but….” If you do not allow the caseworker into the home, then he or she is likely to go to court and get an order that you do so. The caseworker will have to show that “there is probable cause to believe that an abused or neglected child may be found on the premises.” It will be enough if the caseworker shows the judge that: (1) someone called in a report, (2) the caseworker was denied access to the home, and (3) the caseworker advised you that you might seek a court order to gain access to the home without further notice to you. Once the caseworker gets an order that you let him or her into your home, then yes, you have to listen to the judge.

As a result, it is generally advisable that you allow them into your home before they go to court and get an order. After all, if you refuse them entry, and they get a court order, then they’ll be in your home anyway. The only difference will be that they’ll be more hostile, and more suspicious of you.

Question 2: What do I do when they’re in my home?

Be as polite as possible. The instinct may be there to be rude. After all, you’re likely thinking, “Who is this person to question how I take care of my children?” It’s critical that you resist that temptation, or else you’ll make the whole experience more difficult than it has to be. After all, by doing the investigation, the caseworker is only following the law. They have to do an investigation whenever somebody calls the State and makes allegations of abuse or neglect, even when those allegations turn out to be false. If you let the agency do what the law says that it must do, than they are more likely to get in and out of your life with as little stress as possible. You should allow them to look at the conditions of your home and talk to your children outside of your presence.

Question 3: What happens if I have a criminal case related to the investigation? 

Don’t talk about the allegations with the caseworker. Everything that you say to the caseworker can be used against you in Criminal Court, and you are under no obligation to put your liberty at risk. Similarly, if there was a real incident that led to the investigation, talk to a lawyer before you say anything to the caseworker.

Question 4: What do I do next if I’m talking with Services?

If you’re in drug treatment or individual therapy, then get favorable letters from your counselor or therapist if possible. If the agency wants you to attend a conference, then go, and ask to appear by telephone if you have to be at work. If they offer you services, then accept them if possible. They’ll be out of your life more quickly if they see that you’re doing everything possible to take care of whatever conditions brought them into your life.

Question 5: How Long does the process take?

At the end of the investigation, about 60 days after the first contact, you will get a letter saying that the case was either indicated or unfounded. If the case was unfounded, that means the caseworker found no credible evidence of abuse or neglect. Congratulations, you have survived the ordeal and come out clean. If the case was indicated, then that means that the caseworker found some credible evidence of abuse or neglect. If you get that letter, then you will need to call an attorney ASAP to challenge the finding. The time is limited, so start calling attorneys that day. Just remember, this too shall pass. With that said, you do have rights.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Many parents today are self employed. The child support payment process is governed by state law and the judge or support magistrate will decide how much the non-custodial parent has to pay in child support.

“Child support is calculated on the parent’s adjusted gross income,” said Family Law Attorney Joseph H. Nivin. “Where a parent is self-employed, we first determine the self employed person’s business revenue, deduct his or her legitimate business expenses, make the statutory deductions (FICA taxes, NYC or Yonkers taxes and other deductions such as court-ordered child support payments for other children.) Once these items are calculated we than determine the person’s adjusted gross income.”

In some cases, your lawyer can present to the judge additional factors that may increase or decrease the state’s child support guidelines. It’s important to share with your lawyer if your child or children have expenses for special needs, daycare, education and health insurance.

The term discovery in a child support civil case can sound daunting, but don’t let it stress you out. It’s an important part of the case and a good litigation or civil law attorney will do the work by gathering documents and evidence to support your side of the case. Their goal should be to minimize the invasive nature of the process and keep you focused on your long term goals.

Mr. Nivin says, “There’s one way to win a child support case and that’s by accepting an outcome where the child support amount is fair, and allows both parents to support their children while running their businesses and remaining financially solvent.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Here are 10 tips from a family law and divorce attorney on how to save money and reduce your legal fees during a divorce, child custody or alimony case.

1. Get Organized
   Preparation is key when trying to reduce legal fees. Organize your thoughts and documents and you’ll save time and money. If you don’t than you’ll pay your lawyer or someone else to do it.
2. What You’ll Need
   Be prepared to give your lawyer tax returns, pay stubs, 1099’s, credit card statements and bank account records. Write down your questions and be brief when speaking with your lawyer so you keep the clock from running overtime.
3. Keep Your Cool
   Minimize the amount of acrimony, which simply means to keep your anger, bitterness, harsh words and feelings outside the case. Although emotions can run high, it’s best to keep calm and focus on the outcome you want!
4. Stay Put
   In child custody cases, it’s important to maintain a steady home and financial life that shows the courts that you are stable. Try to avoid moving your residence unless it is absolutely necessary.
5. Appearances Matter
   During a divorce, child custody or other family law case, it’s important to show the court that your home is safe and those around you care about your children. To prevent allegations against you, it’s recommended not to start a new relationship that may interfere with your case. By maintaining a good appearance, you’ll have fewer issues to litigate. Allegations can be made against you if a new girlfriend or boyfriend is presented as a bad influence on your children.
6. Keep It Simple
   In child support or spousal support/maintenance cases, it’s recommended that you keep your financial condition as simple as possible. Numerous businesses, partners, assets and excessive personal expenses that are inconsistent with your income will not reflect positively on your case.
7. Financial Transparency
   For a period of time, your life will be an open book. Hiding financial documents is not an option. Make sure your bank accounts show enough income to pay your expenses and that those expenses are paid directly from your personal checking account. Tax returns should reflect a declared income that is consistent with your lifestyle.
8. Time = Savings
   If you want to save on legal fees, respond to your lawyer quickly and efficiently with the documents being requested. Email is a good way to communicate. Be brief, use one string of emails, list your questions and answers and attach necessary documents.
9. Support Staff
   During the case, if you have a question or need more information, call or email your attorney’s office staff or paralegal. They will reply more quickly and you will be billed at a lower rate. Be sure to make appointments in advance so the staff can prepare your documents for the meeting with your attorney.
10. Be a Team Player
    You’re not in this alone. Communicating with your lawyer will be of great value when it comes to getting the information you need to make decisions about your future. Your family law attorney is on your side and the more you work together, the better results you’ll have.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

An immigration lawyer explains two important steps necessary for a U.S. permanent resident card. Learn about the required I-130 form, legal terms, fees and how long the process will take.

Step 1: In order to obtain U.S. residency for you or a family member you will need to complete and file Form I-130. This form is also called a Petition for Alien Relative with U.S. Citizenship and Immigration Services (USCIS). Once completed, it will start the process to apply for a green card and ultimately receive a family-based U.S. permanent residency.

The person making the request for an alien relative to come to the U.S is called a petitioner or sponsor. He or she can be a U.S. citizen or lawful permanent resident (green card holder.) A sponsor can petition for his or her children, spouses or siblings (the “beneficiary”).

• Purpose: The main purpose of Form I-130 is to verify the existence of a valid family relationship between the petitioner/sponsor and the beneficiary.
• Fee: The filing fee for Form I-130 is $535.00.
• Timeline: The time to process the Form I-130 Petition varies significantly depending on the relationship between the petitioner/sponsor and the beneficiary. The timing will also depend upon the workload of the USCIS office and the amount of forms being processed.

Step 2: Although at first glance the Form I-130 appears to be basic, it is not. In addition to providing biographical information known only by the petitioner/sponsor and the beneficiary, the Form I-130 also requires specific support documentation.

Hiring an immigration lawyer will help make your life easier in the long run by walking you through the process, share how the system works, track your green card status and explain the important language and support documents needed for a successful outcome.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

After the court orders a specific child support amount, a parent can go back and ask for a temporary and/or final child support modification. Some of the reasons for seeking a modification include a change of income, a change in the child’s medical or educational needs.

Before you start down this path, be sure to have the proper legal counsel of either a divorce attorney, family law attorney or a child support lawyer. They can help in the following ways:

• Give important advice on how to prepare for the modification process. Be sure to have on-hand your most recent tax returns, recent pay stubs, bills or invoices to support your request for a child support change.
• Represent you at the child support hearings. There is nothing that can replace good legal counsel. The court will view you as prepared and serious about this request.
• Assistance with compulsory financial discovery. In other words, presentation of your income, assets, and debts.
• Negotiation. Child support modification is not black and white. Thorough preparation will work in your favor.
• At the end of the day, each case is different.  However, the rules are the same.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Guardianship for an incapacitated adult allows the person caring for the adult to make all decisions including medical, living accommodations and financial responsibilities. A family law attorney can assist a Guardian or conservator who are both appointed by a judge.

A Conservator is different than a Guardian as they are appointed to only make decisions about money and investments.

To begin the process of legal guardianship or conservator, a family lawyer will explain the process and begin the important step of filing a petition with the court.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

When people describe their experiences in Family Court and contested divorce cases, they often call it “being put through the ringer.” The process can feel like pure hell when your ex is alienating the children from you. I have had clients tell me that their children refuse to speak to them during visitation, and/or make vicious comments like, “I hate you,” “I don’t really love you,” or even “I don’t care if you die.”

Parent alienation may make you feel hopeless, however as a child custody lawyer, here is a brief guide on what you can do to improve or salvage your relationship with your children.

1. The most important thing: Don’t let it bring out the worst in you. Too many parents dig themselves into a deeper hole by inadvertently confirming the alienating parent’s description of them. For example, when the children repeat things that the alienating parent said, some alienated parents see it as a good reason to “bash” the other parent in return. That is a big mistake. The children are not likely to respond by taking your comments at face value. Rather, they will see it as confirmation that the alienating parent’s description of you is accurate.
2. Keep making contact with your children. It may feel silly when you call/Skype/Facetime them and they do not speak to you at all, insult you, or hang up on you. If you stop contacting them at all, they will see it as confirmation of the alienating parent’s statements that you do not love or care about them.
3. Be at your best. Most children (and even most judges) do not understand that your behavior may reflect the hell that you are going through, and not reflect on your true character. Rather, when you lose your composure, your children may feel that you are showing your “true colors.” The alienating parent will take full advantage. (“See? He yelled and screamed. He’s crazy and dangerous, and that’s why I don’t want you going over there.”) No matter what happens, behave in a manner consistent with the way that you want your children to see you.
4. Seek as much parenting time as possible. Many judges believe that when children are not responding to their parents during supervised visits, the visits should stay supervised until the child starts responding. However, I’ve now seen several cases where parents have gotten unsupervised visits, and the children’s behavior does a “180” when they are alone with the targeted parent. While the children may be outright cruel in a supervised setting or during visitation exchanges, they may become affectionate when they are alone with the targeted parent. I firmly believe that as the concept of parental alienation gets more attention, there will be a change to the conventional wisdom that visits need to stay supervised until the quality of the contact improves.
5. Get coaching from a mental health professional with expertise in parental alienation. There are several mental health professionals who specialize in this area, and their guidance will be very useful both in your interactions with your children and in your custody evaluation.

Another pitfall: Many well-meaning judges suggest that alienated children get “therapy.” However, many therapists take children’s statements at face value and treat them based upon the assumption that their statements are true. Therefore, if the child is falsely reporting that you are abusive, the therapist may treat the child for the damage that you allegedly caused, inadvertently helping the other parent to alienate the child from you.

However, there is hope. There are now therapeutic treatments for alienation, and the mental health professional who is coaching you can point you towards a therapist for your child who is familiar with these methods. For the most severe cases, there is even “immersion therapy,” where alienated parents and their children live together on a campus for a short period of time to renew the family bond.

Parental alienation is an insidious form of child abuse. Because it is getting more attention, alienated parents now have more options to save their relationships with their children, and give their children the ability to have both parents in their lives.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

I. Introduction:
Many parents in Family Court or Supreme Court matrimonial cases ask for “shared custody,” or equal time with their children. Until recently, the response was consistent: “Children need one place to call home” or “Children need stability.” However, more courts are now approving “shared custody” arrangements. This article will discuss: (1) what shared custody looks like, (2) when it is appropriate, and (3) how it affects child support.

II. What does a “shared custody” schedule look like?
When people come to my office asking for equal time, they often ask to alternate weeks:
One week with the mother, one week with the father. However, most people do not like this schedule in reality, because it means that each parent has to go every other week without seeing the children at all. In most “shared custody” arrangements, each parent has two weekdays apiece, plus alternating weekends. For example:

Week one: Monday (Father), Tuesday (Father), Wednesday (Mother), Thursday (Mother), Friday (Father), Saturday (Father), Sunday (Father.)

Week two: Monday (Father), Tuesday (Father), Wednesday (Mother), Thursday (Mother), Friday (Mother), Saturday (Mother), Sunday (Mother.) When the parents alternate Friday to Monday, and each parent gets two weekdays, the result is a shared custody schedule.

III. When is shared custody appropriate?
Parents with shared custody have to: (1) communicate, and (2) live reasonably close to each other. When children go from one parent’s home to the other’s during the week, the parents have to communicate frequently. For example, if one of the children has a school project, the child will begin the project at one home, and finish it at the other, thus  requiring the parents to talk to each other about it. Therefore, if one parent is afraid of the other, or if the parents cannot have a conversation without cursing at each other, then shared custody is impractical.

In contrast, if the parents can talk to each other civilly for purposes of co-parenting, then shared custody may be a feasible option. Simple logistics require that parents with shared custody live relatively close to each other. Each parent will be responsible for transporting the children to the same set of schools twice per week. If it is impossible for one parent to take the children to school twice per week, then shared custody is not possible.

IV. How does shared custody affect child support?
Many people assume that there is no child support if the parents share custody. This is incorrect. In Bast v. Rossoff, 91 N.Y.2d 723 (1998), the Court of Appeals found that the Child Support Standards Act applies to shared custody arrangements. In effect, this means that where the parents share custody, the spouse who earns more money pays child support. However, many people will shared custody can argue that they should pay less in child support than they would have to if they only had parenting time on alternating weekends.

The Family Court Act states that in determining an order of child support, the Court can consider “expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof,” so long as the child is not on public assistance. N.Y. Family Court Act §413(1)(f)(9)(ii). In other words, if one parent spends so much time with the children that it reduces the expenses of the other parent, then child support can be reduced so long as the child is not on a public assistance budget. However, this decision is within the Court’s discretion, meaning that the Court generally has the ability to do whatever it determines is best for the children.

V. Conclusion
Shared custody has many benefits. It can allow the children to grow up equally bonded to both parents, and it allows each parent to avoid being “labeled,” to both the children and to society, as the “non-custodial parent.” At the same time, parents seeking shared custody have to ensure that such an arrangement is practical. More importantly, it cannot be used to avoid child support. Like every application made during custody proceedings, a request for shared custody should only be made if it is truly in the children’s best interests.

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