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

Erasing Family is an International film, currently in production as a follow-up to the influential documentary, Erasing Dads. The original movie helped to expose a significant problem in Argentina, that of fathers being erased from the lives of their children by the court system.

Unfortunately, that is not the extent of the issue. Parental alienation is happening to more than just fathers and in many countries across the world including the US.  Mothers, fathers, siblings, grandparents and other family members have been alienated from their families. Children have been forced to grow up without parents and/or had to endure the pain of listening to the custodial parent or family member say terrible things about a loved one, generally preventing them from not only seeing, but loving that family member.

You can view the film’s website and learn more about this growing problem here http://erasingfamily.org/.  More than 40 years of research on children who have grown up in different divorced situations is now exposing the harm that parental alienation can cause. If you need help with a child custody or visitation case, contact attorney Joseph H. Nivin for a consultation at a reasonable cost. Learn More

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

Are you concerned about Grandparent Visitation Rights? If you have been separated from your grandchildren you are probably experiencing a sense of loss and wondering if you have any options. In the state of New York, grandparents can legally request court-ordered visitation if they meet certain criteria, which differs from the criteria for parent/child visitation or custody.

Grandparent visitation rights are not guaranteed, but a judge will weigh several factors to determine if legal visitation should be granted. Grandparents should establish the existence of a previous relationship with the grandchildren before visitation will be considered.

Other factors that determine grandparent visitation rights include the nature of the circumstances surrounding the denial of visitation, if the parents are deceased or living, the wishes of the child, and what is in the best interest of the child in the eyes of the court.  Learn more about how attorney Joseph H. Nivin can assist with your grandparent visitation rights case here.

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

Fathers’ Rights are important. As a father, you have an equal right to seek custody of your children.  In custody cases, whether part of a divorce or not, the mother does not get automatic custody preference in a court of law.

The Court will consider many factors but will look primarily at who is currently the primary caretaker of the child or children.  If the mother is the primary caretaker, that will be taken into consideration. In this case, under normal circumstances, the mother will likely take preference and continue her role as the primary caregiver. If you, the father, are the primary caretaker, then that will be favorable for you in a child custody case.

Each case is unique. If there are doubts about the primary caregiver’s ability to continue in that role, such as drugs or mental illness, then the other parent can get custody based upon those concerns. Attorney Joseph H. Nivin can answer all of your questions about child custody and fathers’ rights.

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

On August 30, 2016, the New York State Court of Appeals fundamentally changed the dynamic of family law concerning same-sex couples and child custody.  Until that day, a non-biological parent from a same-sex relationship who did not adopt the child had no standing to seek custody or visitation.  That meant that if the couple broke up, the child’s biological parent could cut his or her ex-partner out of the child’s life permanently.  The other parent had no recourse.

In The Matter of Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903, the Court of Appeals held, “Where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law 70.”

That means that if a person can prove that he or she agreed with the biological parent to conceive and raise a child as a couple, then that person can seek custody and visitation in Family Court, whether or not he or she adopted the child.

Did you recently leave a same-sex relationship?  Are you trying to get custody or visitation?  The Law Offices of Joseph H. Nivin, P.C. can help!  Call now for a consultation at a reasonable rate.

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“Choosing to divorce or remain in a marriage is a difficult decision that requires time for careful thought,” says attorney Joe Nivin. “Sometimes married couples will choose to live apart before deciding 
to make such a big life altering change.”

In the state of New York, a legal separation can be used as a short or long term alternative to divorce. An experienced family attorney can help with a legal separation agreement that provides spousal support, direction on the use of marital assets and property and help define the responsibility of marital debts and other obligations.

While the couple is living apart, a legal separation in New York can protect the benefits of marriage such as health insurance. A legal separation agreement can also be used as a post-nuptial (postnup) contract. In
 addition, if a couple eventually makes the decision to divorce, some of the legal issues that were worked out during the separation can make the divorce less difficult, as many of the agreed on items can transfer to the divorce agreement.

The Law Offices of Joseph H. Nivin, P.C. can start working for you today to negotiate the terms and prepare all the necessary paperwork for a legal separation agreement.

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

Nia Guzman is suing Chris Brown for more child support.

“Nia is absurd. She’s been living in California for months and has established residency there just so she could take Chris to court in LA for more child support! The case is already in effect and Nia wants more than what they agreed upon in Houston. She wants more — way more — because Royalty deserves every opportunity that life has to offer. Chris continues to flash his gold and diamonds around on Instagram, and him buying a new Ferrari every day infuriates Nia. She’s trying to secure Royalty’s future and she wishes Chris would understand that,” a source close to Chris tells HollywoodLife.com exclusively.

---

Attorney Joseph Nivin says:

Where do I start?

When you have someone who wants more child support from you, it is a terrible idea to: (1) flash your gold around on Instagram, (2) add your diamonds to your Instagram, (3) buy a new Ferrari (at all, and doing this in multiple is icing on the cake), and (4) publicizing your new Ferraris.

Chris Brown needs legal advice, but that’s the least of his problems.  He desperately needs common sense.

Now, let’s talk about what Chris is paying.

According to the article, Chris Brown is ordered to pay $2,500.00 per month, plus 100% of his daughter’s medical care, education, and child care.

The $2,500.00 per month is known as “basic support.”  That is supposed to cover the payor’s contributions to daily expenses: food, shelter, clothing, school supplies, utilities, etc.  This number is a percentage of the payor’s income (after deductions, including Social Security and Medicare taxes, and NYC or Yonkers taxes).  That percentage is 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% and up for five or more children.

Where a parent is paying $2,500.00 per month in basic support for one child, that generally means that the parent has a solidly upper-middle class income.  However, there are a lot of people out there paying this amount who could only dream of affording one Ferrari.

The “add-on” expenses, medical care, education, and child care, are determined by what percentage of the combined parental income is earned by the non-custodial parent.  For example, if the non-custodial parent earns $60,000.00 per year, and the custodial parent earns $40,000.00 per year, then the non-custodial parent earns 60% of the combined parental income.  Therefore, the court will order that parent to pay 60% of the child’s unreimbursed medical expenses, and 60% of the child care expenses.  The court can, but does not have to, order the parent to also pay 60% of the child’s educational expenses.

The court will usually expect the custodial parent to work and earn an income.  Therefore, the non-custodial parent usually does not have to pay 100% of the add-on expenses like Chris Brown does.  However, there are many non-custodial parents who earn much less than Chris Brown who have to pay for close to all of the add-ons, often because the custodial parent’s earning capacity decreased because of child-rearing responsibilities.

For these reasons, there are many men who pay as much in child support as Chris Brown, but cannot afford to enjoy the lifestyle that he brags about on Instagram.

If you have a child support case, don’t be like Chris Brown.  If you’re going to brag about your riches, you better be ready to turn them over to your child’s mother. Visit our family law page for more help. http://nivinlaw.com/practice-area/family-law/

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

The following article was written by Joseph H Nivin, Esq., from the Law Offices of Joseph H. Nivin for NY Metro Parents. 

Every parent wants his or her child to receive the best possible opportunities. Many families do not believe that their children will achieve their full potential without a private school education. For single-parent families, paying for private school becomes even more arduous than it is for families where the parents live together. The purpose of this article is to provide information to single parents seeking support to pay for private school tuition.

In situations where the child lives primarily with one parent and the parents are divorced or separated, the non-custodial parent–the one who the child does not live with–will almost always be required to pay basic child support, which is based upon a percentage of the parent’s income. Child support that is specifically for private school tuition, the focus of this article, is in addition to basic child support.

One of the most important factors that the Court will consider will be whether the child has already been attending private school. In some cases, parents who pay child support had agreed during the marriage that their children would attend private school, but then no longer wish to pay for it once they separate from their spouses. Courts will generally order people to continue to pay for a portion of their children’s private school tuition if they paid for it willingly when they lived with the other parent.

Courts will also consider whether the non-custodial parent participated in discussions about whether the child would attend private school. The court will consider the circumstances of those discussions, as well as the status quo, when it determines how much weight to give to these prior conversations. In one recent case, an appellate court did not award support for private school tuition even though the parents had discussed sending the child to private school; in this case, these discussions took place when the child was just a few months old, and the child was not even school age at the time the case came before the court.

Another court declined to order the non-custodial parent to contribute to private school tuition in a case where the parties signed a separation agreement saying they would only share tuition expenses if they agreed that their children would attend private school. Their previous discussion of the issue—prior to the agreement–had been only hypothetical, focusing on the merits of private school vs. public school. The court found that the conversation would likely have gone a different way if the parents had this discussion after they signed the separation agreement.

However, in those cases where (1) the parents agreed to send their children to private school, (2) the children attended private school for years during the marriage, and (3) the non-custodial parent only raises an objection when he is being asked to pay child support, the court will generally order the non-custodial parent to contribute to the tuition payments.

Courts are more likely to issue awards of child support for private school tuition in cases where the parties enjoyed an affluent lifestyle and/or high spending patterns during the marriage. Courts are also likely to issue orders for contributions to religious private schools where religion is an integral part of the family’s lifestyle.

Fighting with the other parent of one’s child is among the most stressful, emotionally draining experiences that a person can imagine. These cases are trying not only for parents, but for children as well. While the unpleasant nature of this litigation cannot be eliminated, it can be lessened when the court makes sure that the child receives the support necessary to continue to attend the same school he or she had been going to previously and to receive an education that maximizes his or her prospects for a successful future.

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

PRESS RELEASE

March 21st, 2016—The National Advocates organization is pleased to announce that Mr. Joseph H. Nivinhas been selected for inclusion into its Matrimonial and Family Law specialty, an honor given to only a select group of lawyers as recognition of their superior skills and qualifications in the field. The selection for this exclusive list is limited to only 100 attorneys per state or highly populated region who have demonstrated their extraordinary abilities with superior results, a high level of peer respect and client satisfaction.

The National Advocates is a professional organization comprised of premier lawyers from across the country who have demonstrated exceptional qualifications in their area of the law, including Matrimonial and Family Law, Employment Law, Social Security Disability Law, Immigration Law, Bankruptcy Law and Estates, Wills and Trusts. The National Advocates provides accreditation to these distinguished attorneys, and provides essential legal news, information, and education to trial lawyers across the United States.

With the selection for membership by The National Advocates, Mr. Nivinhas shown that he exemplifies superior qualifications, leadership skills, and case results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Advocates is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the lawyers chosen to represent their state.

To learn more about The National Advocates, please visit: http://www.thenationaladvocates.org.

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

In the Matter of Marina B. Brandt, appellant,

v

Robert A. Peirce, respondent.

D’Agostino Law Office, P.C., Pleasantville, N.Y. (Joseph Rizzo of counsel), for appellant.

Daniel Lawrence Pagano, Yorktown Heights, N.Y., for respondent.

DECISION & ORDER

Appeal from an order of the Family Court, Westchester County (Michelle I. Schauer, J.), dated December 3, 2014. The order denied the mother’s objection to an order of that court (Esther R. Furman, S.M.), dated October 23, 2014, which determined that the father was owed a child support credit in the amount of $12,800.

ORDERED that the order dated December 3, 2014, is affirmed, with costs.

The parties entered into a stipulation of settlement that was incorporated but not merged into their judgment of divorce dated July 14, 2008. The separation agreement required that the father pay child support to the mother in the sum of $2,800 each month for the parties’ two children. The separation agreement also provided that the children’s anticipated college expenses would be paid for, after any grants, awards, or scholarships, with specified custodial “529 accounts” that had been “established by the [f]ather” for the children’s benefit prior to the parties’ divorce (hereinafter the 529 accounts). In the event that the 529 accounts were insufficient to cover the children’s college expenses, the father would then use a specified money market account, designated as the father’s separate property, to cover the costs. In the event all of the above accounts were not enough to cover the entire cost of the children’s college expenses, the parties would split the remaining college expenses equally. The separation agreement also stated in a separate paragraph that the father would receive a “dollar for dollar credit” in child support for “every dollar he spends” on the “[c]hildren’s college, room and board.”

The parties’ son went away to college in the fall of 2011. The father paid his college tuition and room and board expenses for the 2011-2012 academic year in full from the 529 account established by the father for the benefit of the son. The father also decreased his monthly child support payments to the mother at this time.

The mother filed a petition for enforcement of the parties’ separation agreement, claiming that the father should pay the full $2,800 per month in child support. The father moved for summary judgment determining that he was entitled to child support credits. He argued that he properly decreased his child support payments pursuant to the grant to him of a child support credit in the separation agreement because he paid the son’s college expenses from the son’s account. The [*2]mother opposed the father’s motion and cross-moved for summary judgment on her petition. She argued that the crediting language in the separation agreement applied only to property expressly identified in the separation agreement as the father’s “separate property,” and was not intended to apply to the 529 accounts. The Support Magistrate agreed with the mother, and granted her cross motion for summary judgment in an order dated January 4, 2013. The father filed an objection to the order of the Support Magistrate, which the mother opposed. Upon review, in an order dated February 28, 2014, the Family Court granted the father’s objection, agreeing with his contention that he was entitled to the child support credit, and remitted the matter to the Support Magistrate for further proceedings.

Upon remittal, in an order dated October 23, 2014, the Support Magistrate determined that the father was owed a child support credit in the amount of $12,800. The mother filed an objection to this order. In an order dated December 3, 2014, the Family Court denied the mother’s objection. The mother appeals from the order dated December 3, 2014, and her sole argument on appeal is that the Family Court erred in determining that the separation agreement provided for the father to receive a child support credit for payments he made for the son’s college expenses from the son’s account.

We agree with the father that the Family Court properly determined that he was entitled to a child support credit for payments that he made for the son’s college expenses from the 529 account. A separation agreement incorporated but not merged into a judgment of divorce “is a contract subject to principles of contract interpretation” (Matter of Bokor v Markel, 104 AD3d 683, 683; see Matter of Gravlin v Ruppert, 98 NY2d 1, 5; Matter of Tammone v Tammone, 94 AD3d 1131, 1133). In interpreting a separation agreement, ” [t]he words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties’” (Matter of Bokor v Markel, 104 AD3d at 683, quoting Matter of Tillim v Fuks, 221 AD2d 642, 643; accord Eckman v Eckman, 123 AD3d 969, 970). ” Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used’” (Salinger v Salinger, 125 AD3d 747, 748, quoting Ayers v Ayers, 92 AD3d 623, 624). ” [C]ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’” (Willsey v Gjuraj, 65 AD3d 1228, 1230, quoting Henrich v Phazar Antenna Corp., 33 AD3d 864, 867; accord Matter of Tammone v Tammone, 94 AD3d at 1133).

The parties’ separation agreement provides that “[t]he father will receive a dollar for dollar credit in Child Support for every dollar he spends on the Children’s college, room and board.” The plain and natural meaning of the parties’ words entitles the father to the credit for “every dollar” that the father “spends” on the children’s college, room, and board, without limitation (see Salinger v Salinger, 125 AD3d at 748; Matter of Bokor v Markel, 104 AD3d at 683). The question presented here is whether the father “spends” money on the children’s college expenses when the payments are made from the 529 accounts. The mother contends that the separation agreement was not intended to provide for a child support credit under these circumstances because the agreement did not designate the 529 accounts as the father’s “separate property.” Despite the lack of this express designation, however, the parties do not dispute that the father is listed as the owner of the 529 accounts and that he received the money used to fund it as an individual inheritance from his late brother, thereby constituting his separate property (see Overton v Overton, 118 AD3d 858, 858-859). Under these circumstances, where the father paid for the son’s college expenses from the 529 account that the father set up and funded with his inherited money, the father is “spending” money on the son’s college expenses and is entitled to a child support credit in accordance with the plain meaning of the separation agreement.

The father’s remaining contentions are without merit.

MASTRO, J.P., BALKIN, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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

Casler v Casler

2015 NY Slip Op 06653

Decided on August 26, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 26, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
ROBERT J. MILLER, JJ.

2013-09796
(Index No. 12567/97)

[*1]Diane Casler, appellant,

v

Carl Casler, respondent.

Diane Pizzolo, named herein as Diane Casler, Cortlandt Manor, N.Y., appellant pro se.

Bodnar & Milone LLP, White Plains, N.Y. (Erik Kristensen of counsel), for respondent.

DECISION & ORDER

Appeal from an order of the Supreme Court, Westchester County (Colleen D. Duffy, J.), dated August 9, 2013. The order, insofar as appealed from, denied the plaintiff’s motion to hold the defendant in contempt for his failure to provide her with proof of his procurement of life insurance naming the parties’ child as an irrevocable beneficiary, for an upward modification of the defendant’s child support obligation, and for an award of an attorney’s fee.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant’s child support obligation was set forth in a stipulation dated January 19, 1998, which was incorporated but not merged into the parties’ judgment of divorce. Since the stipulation was executed prior to the effective date of the 2010 amendments to Domestic Relations Law § 236(B)(9)(b)(2) (see L 2010, ch 182, § 13), in order to establish her entitlement to an upward modification of the defendant’s child support obligation, the plaintiff had the burden of establishing a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the agreement was not fair and equitable when entered into (see Gribbin v Gribbin, 126 AD3d 938, 939; DelGaudio v DelGaudio, 126 AD3d 848, 849; Matter of Gadalinska v Ahmed, 120 AD3d 1232, 1233; Matter of Dimaio v Dimaio, 111 AD3d 933, 933; see also Kaplan v Kaplan, 130 AD3d 576; Zaratzian v Abadir, 128 AD3d 953; Matter of Corbisiero v Corbisiero, 112 AD3d 625, 626). As relevant here, the plaintiff did not establish that the reduction in the defendant’s visitation with the child constituted a substantial and unanticipated change in circumstances that created the need for modification of his child support obligation (cf. Matter of Gravlin v Ruppert, 98 NY2d 1, 3-6; Matter of McCormick v McCormick, 97 AD3d 682). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for an upward modification of the defendant’s child support obligation.

The Supreme Court also properly denied that branch of the plaintiff’s motion which was to hold the defendant in contempt for failing to comply with the terms of the parties’ stipulation, which required the defendant to show that he was maintaining a $200,000 life insurance policy naming the parties’ child as an irrevocable beneficiary. To prevail on a motion to hold a party in [*2]civil contempt, the movant is required to prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Halioris v Halioris, 126 AD3d 973; El-Dehdan v El-Dehdan, 114 AD3d 4, 16; Bernard-Cadet v Gobin, 94 AD3d 1030, 1031). Here, the plaintiff did not meet her burden of establishing all of the aforementioned elements of civil contempt by clear and convincing evidence. Specifically, she failed to show any prejudice she suffered as a result of the defendant’s failure to provide the documentation she requested. Accordingly, the Supreme Court properly declined to hold the defendant in civil contempt for disobeying this provision of the stipulation.

The Supreme Court providently exercised its discretion in denying the plaintiff’s request for an award of an attorney’s fee (see Freight Brokers Global Servs., Inc. v Molfetta, 90 AD3d 828, 828-829).

The plaintiff’s remaining contentions are without merit.

MASTRO, J.P., LEVENTHAL, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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