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

While a parent’s hope is that after a custody and parenting time schedule is agreed upon, litigation is over. Unfortunately, to enforce or modify the order, going back to court is unavoidable.

One parent may want to change the schedule.  A parent may be frustrated because the other isn’t living up to the agreed-upon terms. A family lawyer or a child visitation lawyer can help.

“Heated arguments over parenting time are not healthy for anyone, especially the child who suffers the most,” says family lawyer Joseph H. Nivin. “All too often feelings erupt when the custodial parent feels the child is not being properly cared for during parenting time, when a parent is late, or a parent keeps the child longer than agreed upon.” In New York, either parent, siblings and half-siblings and grandparents can ask for visitation.  However, grandparents face hurdles that parents do not when they seek time with the children over the objection of a parent.

Family law courts use the “best interests of the child” standard to settle child visitation disputes. The first step toward obtaining a child visitation order will depend on whether the parties are already involved in a family law case or need visitation modification. In either case, your family lawyer will prepare a petition for visitation to present to the court.

Here are a few factors the court considers when deciding on a visitation case.

1. Parent’s relationship with the child
2. Home environment
3. Any disruption that the requested schedule would impose upon the child’s education
4. The child’s overall physical, emotional and developmental well-being

If you have not established a case, the parent seeking visitation must initiate one. When the parents are married, visitation can be requested as part of a divorce.  However, if you are the father, you were not married to the mother at the time of conception or birth, and you did not sign an acknowledgement of paternity, you probably have to establish paternity before the court can issue orders of parenting time.

Remember it’s against the law to deny a parent visitation that has been ordered by a court even if the other parent is late to visits or not paying child support. Instead of engaging in “self-help,” if you want to enforce an order of child support, then speak with an attorney about filing a petition to do so.

Need more info? Contact Us

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

There are many benefits of adopting a child and starting or expanding a family. This often is a great time in the lives of many, however emotions aside, there is a process that needs to take place when making decisions for the child.

Here is a short guide about private placement adoption in New York.

The adoption process terminates the parental rights of a child’s parent(s) and allows the adoptive parent to become the legal parent. The adoptive parent will receive a court order that names the adoptive parent as the child’s legal parent. An adoption attorney will draft and review contracts while working with the adopting and biological parents as they navigate the adoption process of a child or a step-child.

In New York, there are a few types of adoption. Some adoptions happen when a child is removed from his or her home by child welfare services and placed into foster care. The foster care agency is responsible for the child, and depending on the situation, the child can be adopted by the foster parents.

Two types of private placement adoptions.

1. When the parent gives up his or her child to a private adoption agency. The adoption agency is responsible for the child, and works to find adoptive parents who will adopt, love and care for the child.
2. A parent may be going through a tough time and cannot provide for the child, so the parent decides to place the child with family members, such as grandparents, aunts, uncles, or siblings, instead of putting the child through foster care. Other times, a parent may have passed away, and another family member decides to step in and care for the child. Lastly, a stepparent may adopt a stepchild.

A family lawyer will file the adoption either in the Surrogate’s Court or in the Family Court. The process also involves a home study conducted by a social worker. Affidavits from the adoptive parent must also be drafted that state the adoptive parent’s relationship to the child. Fingerprints for a background check are also required for adults who live in the household of the adoptive parent.

Adopting a child can be a tedious and time-consuming process and can take from 6-12 months. But, the end result is a joyful beginning for the child and their adoptive parent.

If you are need legal assistance regarding an adoption, please contact The Law Offices of Joseph H. Nivin, P.C. to make the adoption process as smooth as possible!

Source: Private Placement for Adoption in New York, http://mobilizationforjustice.org/wp-
content/uploads/Private-Placement-Adoption-in-NY.pdf

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

There are several names of lawyers who represent minors in Family Court. Many times they are referred to as a child lawyer or a child advocate lawyer. However, under Family Court Act 241, an attorney for the child (AFC) is a court-appointed attorney who is assigned to represent a minor to “help protect their interests” and to “help them express their wishes to the court.”

They are dedicated to making sure the minor child of those involved in divorce, guardianship or custody negotiations are treated fairly. He/she will take steps to get to know the child and to evaluate the child’s situation.

The attorney for the child must act in a way that is consistent with legal practice, and should not try to be the child’s social worker, or psychologist. The appointed attorney is subject to the ethical requirements that apply to all attorneys, which include but are not limited to: client confidentiality (meaning that the attorney can’t go gossiping about what the child said), checking for conflicts of interest (the attorney can’t represent the child if the they once represented one of the parents, for example), and becoming a witness in a proceeding (which the attorney cannot do).

Like with any client, the child is entitled to independent and effective representation. The attorney must consult and advise the child regarding the proceeding, and maintain contact with the child in case any concerns arise. It is important for the attorney to be able to maintain contact with the child in order to best represent their interests.

If the child has the capacity to understand the situation and make a decision for him/herself, the attorney should follow the child’s position, even if the attorney does not believe that the child’s wishes are not in his/her best interests. The attorney should discuss the options available to the child and give legal advice, but at the end of the day, if the child has the capacity to understand and make a decision, the attorney must advocate for the child’s position.

If the attorney for the child believes that the child does not have the capacity to make a decision, or that the child’s wishes are likely to result in a substantial risk of imminent, serious harm to the child, the attorney can advocate for a position that is different from the child’s wishes.

The attorney will want to see your child or children alone. This can be unsettling, but just as you have the right to meet with your own legal counsel alone, your child has the same right. If you have a case where a attorney for the child has been appointed, it is crucial to make a good impression. Some things not to do:

• Don’t flirt with the attorney for the child.
• Don’t call the attorney for the child an “a**hole.”
• Don’t accuse the attorney for the child of corruption, bias, etc.
• Don’t coach your child on what to say, especially not in front of the attorney for the child or his or her colleagues.

Disclaimer: All of the above are true stories. I’ve seen most of them with my own eyes, and when I haven’t, friends have told me about them. Family matters can get complicated, especially when children are involved.

If you need any legal assistance regarding a family court proceeding or a matrimonial matter, please contact The Law Offices of Joseph H. Nivin, P.C. to ensure that your interests are being heard!

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

There are two sides to a restraining order; either you’ve been served or you want to file a restraining order against someone. Here are a few recommendations from an experienced attorney.   

1. You want to file a restraining order. What do I do next?
   Restraining orders are common in divorce and child custody cases. “The first step is to obtain a temporary restraining order if you or your child is a victim of domestic violence, harassment, stalking, physical or sexual abuse,” says attorney Joseph H. Nivin. “We will submit a family offense petition to the court in order to receive a temporary order of protection until the case is resolved.”
2. You’ve been served with a restraining order. Now what?
   “A restraining order is a serious matter and can mean jail time if you are found to have violated it,” says Attorney Joseph H. Nivin. To avoid damage to your reputation and to your relationship with your children, it’s important to move quickly. A lawyer can fight false allegations made against you, build your case and defend you in court.In either situation, it’s best not to have any contact with the person you are filing against or the individual who has wrongly accused you, unless it is absolutely necessary to arrange for parenting time, to discuss the children’s well-being, and most importantly, only if the terms of the order of protection permit you to have contact with the other party. If the other party invites you to violate the order of protection, i.e. come over to his or her home if the order of protection prohibits you from doing so, don’t do it.  The cops will arrest you even if the other party gave you permission to engage in behavior that violates the court order.

See list of types of restraining orders and more info.

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

An uncontested divorce simply means that you and your spouse have come to an agreement regarding the terms of your divorce and prefer not to go to court.

However, even during the best of times a Family or Divorce Lawyer is needed to work out mutual terms for a separation, negotiate the terms of a fair judgment, prepare the necessary paperwork, serve papers and ensure the process moves efficiently so both parties can begin their lives anew.

An Uncontested Divorce Lawyer can assist with six main issues.

1. Division of marital property
2. Division of debt
3. Child custody and visitation or parenting time
4. Child support
5. Maintenance
6. Counsel fees

An uncontested divorce offers many benefits to couples over a contested divorce. A contested divorce can can cause stress, high legal costs and significant time in court.

Another important factor is preparation which can minimize the length of your divorce case, stress and legal costs.

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

No two child custody cases are the same as everyones relationships are different. An experienced family lawyer or child custody lawyer will advocate or defend for your child or children’ wishes. A good lawyer will listen and can help your whole family through this emotional process.

What does a child custody lawyer do?

• A child custody lawyer will create and negotiate agreements between divorcing, divorced, separated or non married parents. He or she will help you decide on where the children will live and a visitation schedule.
• A child custody lawyer works generally with children seven years of age or older who do not have significant disabilities. However in some cases a custody lawyer can work with younger children.
• A child custody lawyer is independent of the Court and has the same relationship with your child or children as you do with them. They will communicate directly with your child to answer their questions and prepare a case in their best interest.
• It’s important to have a good working relationship with your lawyer as it can effect the outcome of your case. Reply with the documents requested by the legal office and in a timely manner. The longer the case, the more money it will cost you. Being organized and a good communicator will help in the long run.
• Your family lawyer will help you understand the differences between physical, legal, sole and shared custody.
• Contested cases happen when parents disagree. Sometimes parents start out with a simple case that becomes complicated along the way. A family lawyer plays an important role to advocate for the children and provide guidance for parents.
• The Court generally favors when both parents are involved in the child’s well-being and care.

For more information Contact Us

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

Guardianship vs. custody are legal terms that may be used interchangeably. However, there are specific and clear differences between the two.

Guardianship: An order of guardianship provides an adult with the legal power to make decisions for another person, usually a minor or an adult who is unable to make decisions independently. A person may act as a guardian for a person or that person’s property. Guardians may be appointed by the Family Court, Supreme Court, or by the Surrogate’s Court. If the minor is over first (14), consent from the child is required. An order of guardianship as it pertains to minors lasts until the minor turns twenty-one (21) years old and is usually final.

Custody: In contrast, a custody order designates an adult to be the primary caretaker of a child. There is physical custody, which is used to determine who the child lives with and whose address is used for the child’s school, and there is legal custody, which allows the adult to make life decisions for the child. Parties can share legal custody (“joint custody”), which means that the parties (usually the parents) make decisions together.  In such a case, the court may designate one party to have “final decision-making authority” if the parties cannot agree about a major decision.

Visitation: Moreover, custody petitions are also used to establish visitation between non-custodial parents, grandparents, and siblings and the child.  (Grandparents have to first establish “standing” to obtain an order of visitation over the objections of a parent.)  Custody cases are heard in Family or Supreme Court and the child’s best interests are paramount. The Court will take into account the relationship of the parties with the child and aim to maintain a consistent quality of life for the child. Custody orders can be modified based on the circumstances of the family.

If you are seeking legal assistance in a custody or guardianship case, Contact us.

Blog written by Louise Lingat, Law Offices of Joseph H. Nivin, P.C.

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

Written by Louise Lingat

Paternity establishment is the process for determining the legal father of a child. Every child has a biological father, but if a child is born to parents who are not married, the child does not have a legal father, unless the father signed an acknowledgement of paternity (usually in the hospital), or signed up with the putative father registry. Otherwise, for a child to have a legal father, paternity must be established.

1. I am not married and I have a child. I know who the biological father is. How do I establish paternity?
There are three ways to establish paternity for parents who are not married. The father may sign a voluntary acknowledgement of paternity or register with the putative father registry. If the father did neither, and the mother wishes to establish paternity, then the mother has to file a petition in court.

2. What are the benefits of establishing paternity?
Establishing the paternity of a child allows the child of unmarried parents to have the same rights and benefits of children of married parents. These benefits include:

• Father’s name on the birth certificate
• Medical insurance from the father
• Financial support, which includes Social Security, child support and inheritance rights.
• Paternity allows the legal father to seek custody and parenting time of the child.

3. If my child’s father does not sign an Acknowledgement of Paternity, how can the court establish paternity?
For the court to establish paternity, a paternity petition must be filed in Family Court. The petition may be filed by the mother of the child, by a man who believes he is the father of the child, by the children themselves, or by the child’s guardian. Once a petition is filed, the petition and summons must be served upon the respondent.

If you need any assistance in establishing paternity, please contact us.

Sources:
NYS DCSE | Paternity Establishment,
https://www.childsupport.ny.gov/dcse/paternity_establishment.html

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

The amount of child support payments not paid each year is staggering. The U.S. Census Bureau reported that 30.7% of child support was not paid in 2015 and 25.8% of non-custodial parents made partial payments.

Even with a court order or formal agreement, a parent can find himself or herself frustrated when trying to collect child support. A family law attorney can help you if your ex doesn’t pay child support.

You can file a petition to enforce child support with the court. Your local child support enforcement office can also use the following administrative remedies:

1. Withhold federal tax refunds and Apply those funds to unpaid child support
2. Garnish wages from the payor’s paychecks
3. Seize property
4. Suspend an occupational license
5. Suspend a business license
6. Revoke the delinquent payor’s driver’s license
7. Deny issuance of a passport to someone who owes more than $2,500 in child support

Important Facts To Know

Past Payments: If a pay0r finds him or herself behind in payments, called “in arrears,” he or she can ask a judge for a reduction of child support payments. However, only future payments can be reduced, and the pay0r is obligated to pay past due child support in full.

Bankruptcy: Child support debt can’t be discharged by bankruptcy because of the public policy preventing parents from using bankruptcy as a way to avoid supporting their children.

Out of State: The Child Support Recovery Act of 1992 makes it a federal crime for a parent to refuse to pay child support to a parent living in another state. Congress also passed the Deadbeat Parents Punishment Act of 1998, making it a felony for a parent to refuse to pay child support to a parent living in another state.

The Law Offices of Joseph H. Nivin is on your side and can help you to enforce child support payments. Contact us today.

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

If your marriage is about to end, here are five tips on what to do next and how to minimize the emotional and financial toll through the divorce process.

1. Ensure that your financials are manageable. If you share a joint account with fixed expenses of rent/mortgage, utilities, etc., it’s important to keep it funded so that payments can continue throughout the process. If you have separate bank accounts and your monthly expenses are paid out of one or more accounts, establish a steady and consistent system. If you were just laid off, don’t continue paying all of the expenses out of your account and watch the funds dwindle. Speak with your spouse about establishing a fair, sustainable plan. The Court is likely to order that your method of payment for monthly expenses be the same throughout the process. If the money runs out, you’ll end up paying your lawyers thousands of dollars to figure it out. It’s cheaper and more efficient to create a system on your own before going to court.
2. Get your financial records in order. Make a list of your assets, debts and expenses. If the divorce is contested, meaning that you’re unable to reach an agreement and the judge needs to make decisions, then you’ll need to produce discovery. The discovery process includes completing a critical document, called a statement of net worth. A general discovery list will include, but not limited to, three years of checking and saving bank statements plus credit card, brokerage, pension, 401K, mortgage, student loans and retirement statements. You’ll also need to provide copies of your title for automobiles.If you’re hurrying to obtain statement copies while in court, then the process can be more stressful, costly and lead to a less favorable outcome. If there is a deposition (a day when your spouse’s attorney asks you questions), be prepared to provide very detailed information about your answers on statement of net worth. Of course, an experienced attorney can prepare for the deposition, but the preparation will be much easier if your finances are organized well in advance.
3. If you’re self-employed, make sure that your reported income makes sense. Many self-employed people have complicated stories about what they make. Example: “I drive a luxury car and my rent is $3,000 per month, but I only make $20,000 per year. My luxury car depreciates and I write off my rent as a business expense. “If the judge needs to do mental somersaults to make sense out of your income, then your account will likely not be deemed credible. As a result, your income is likely to be disregarded when orders of support are issued. Total your fixed monthly personal expenses (rent, utilities, car payments, etc.) and pay yourself a salary that allows you to pay your personal expenses without writing them off as business expenses.
4. Make your life as simple as possible. This is not the time for a new relationship or starting a business venture. If you do, it can cost more to pay a lawyer by the hour to fight for you, because there will be more ways For problems to arise with your spouse. Keep your life as boring as possible until you settle your divorce.

• Don’t do stupid stuff. This sounds simple, but when people are really, angry and nervous, they tend to violate this simple principle.
  –Don’t make false allegations about your soon-to-be ex, no matter how many times he or she threatens to take the kids away, leave you with no money, etc.
  –Don’t ask your boss to remove you from the books because you’re about to get a divorce.
  –Don’t hide your assets. If you think you’re being sneaky, you’ll regret it in the long run.
  –Divorce is difficult, but an experienced attorney can provide sound advice to give you the best outcome.

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