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Family Law

Tuesday, January 17, 2017

DIY Divorce: Do or Don’t?


Should I get a divorce without a lawyer?

More people today are considering divorcing without the help of a lawyer.  Several major websites exist that advertise preparation of your divorce forms without even consulting with a lawyer.  While do-it-yourself divorce may save you money in the short-term, there are several potential drawbacks that you should consider before deciding to go it alone, including:

  1. Paperwork errors:  DIY divorce papers are not tailored to your specific state or circumstances.  As such, you need to proceed with caution before using standard forms that you may find online.  These forms might contain critical errors that will get your filing rejected.

Read more . . .


Tuesday, December 13, 2016

A Look at Stepparent Adoption in New York


How do I get started with adopting my stepchild in New York?

Millions of families across the United States include stepparents.  Stepparent adoption is the most common type of adoption nationally, and thousands of new stepfamilies are created every day.  In New York, stepparents often seek to adopt their stepchildren to establish a permanent legal bond that will be critical to their future.

Stepparent adoptions are easier and can happen faster than other types of adoption, but like any adoption they require stringent adherence to deadlines and completion of several vital steps.  If you are a stepparent looking to adopt your stepchild, consult with a


Read more . . .


Tuesday, June 7, 2016

Bill O’Reilly’s Children Choose to Live With Their Mother


How much weight does the child’s preference carry in a custody case?

When there is an issue of child support and two parents cannot come to a resolution, the courts will often become involved.  The courts decide custody matters according to the best interest of the child standard. This standard consists of many factors, one of which is the preference of the subject child.  The preference of the children has played a large role in an ongoing New York case involving a celebrity news anchor.

Famed Fox News personality Bill O’Reilly married Maureen McPhilmy in 1996 and they had two children.


Read more . . .


Monday, May 16, 2016

A Primer on Pre-Nuptial Agreements


Are pre-nuptial agreements only for the wealthy?

Gossip columns are often filled with stories of high-profile celebrity divorces and the details of prenuptial agreements of the rich and famous. While these stories may be cringe worthy, the fact is that many marriages don't last. In fact, more than 50 percent of first marriages end in divorce, and the odds for success are even less for second and third marriages. With this in mind, any couple, regardless of their financial status, should consider having a prenuptial agreement.

What is a prenuptial agreement?

A prenuptial agreement, or pre-marital agreement, is a contract entered into by a couple prior to the marriage that specifies the future spouses property ownership, as well as debts, and clarifies each spouses property rights in the event that they divorce.


Read more . . .


Saturday, May 7, 2016

One New York County Behind Over A Million in Child Support Payments


Why does Nassau County have $1.2 million in undisbursed child support payments?

If you receive child support payments, it might have been a real battle to get the financial help your child is entitled to.  There may have been countless arguments, meeting with your lawyer, court hearings and paper filings during the process.  At this time your child’s other parent has been making the designated payments so all is running smoothly, right?  Wrong!  Now, the county in which you live is holding over a million dollars in undisbursed child support payments.

When a court orders child support, the responsible parent pays the designated amount to the State of New York.
Read more . . .


Monday, March 21, 2016

Sen. Gillibrand Seeks to Modernize Foster Care System

U.S. Sen. Kirsten Gillibrand (D-NY) is sponsoring legislation that is designed to enable states to use a standardized interstate system to streamline the placement of children in adoptive or foster homes. The bill, Modernizing the Interstate Placement of Children in Foster Care Act, has bipartisan support.

"Thousands of children in New York and across the country urgently need a loving home, but often child welfare agencies don't explore the option of placing them with a foster family out of state because of long paperwork processing delays," Gillibrand said. 

There is such a system already in use in five states and the District of Columbia, the National Electronic Interstate Compact Enterprise (NEICE) which proponents say has reduced the time it takes to place a child in an adoptive of foster home by 45 days. The legislation, if approved, would provide temporary funding for states to implement the NEICE system and by 2022, all states would be required to join the system.

Lawmakers contend that foster children typically face long delays getting placed in a loving home because they often need to move to another state in order to live with a relative, adoptive parent or foster family. The current system requires exhaustive paperwork and often gets entangled in governmental bureaucracy. The bill is intended to cut red tape and speed up the process.

Several organizations, including the American Academy of Adoption Attorneys, and the American Public Human Services Association, support the proposed legislation. The groups believe that when NEICE is implemented, it will also help to ameliorate other risk factors for children, including illegal re-homing and sex trafficking.

Toward Legal Adoptions

Adoption is the legal process whereby parental rights are transferred to the adopting parents, creating a new parent-child relationship. A legal adoption gives the adoptive parents the same rights and responsibilities as parents of a biological child. At the same time, the adopted child is granted the same legal rights as a biological child, including inheritance rights and child support.

One of the most common adoptions is a stepparent adoption in which the stepparent becomes the child’s new legal parent. Some states also recognize domestic partner adoptions which follow the same general format and procedure as stepparent adoptions. If you have questions about adoptions in New York, you should consult with an attorney with expertise in family law.


Friday, March 18, 2016

Special Issues Confronting Lesbian and Gay Parents When They Adopt

What areas of concern face gay and lesbian when they adopt?

Adopting children is a life-changing event for any couple, but it becomes a more complicated legal process when the adopting couple is gay or lesbian. Now that homosexual marriage is legal in all 50 states, the problem is being given more serious attention. One of the difficulties for these couples is that laws governing adoption differ from state to state.

How Lesbians and Gay Men Become Parents

In some cases, one member of a gay or lesbian couple already has a child or children, but, if they are starting a family by adopting a child, the possibilities include:

  • One partner in a lesbian couple gives birth to a child (usually through artificial insemination)
  • One partner in a gay couple donates sperm to fertilize a donor egg and uses a surrogate mother

In either of these cases, the nonbiological parent becomes a legal parent through second or stepparent adoption.

In some states, same-sex couples can adopt children jointly, meaning that both partners are legal parents from the outset. For same-sex couples in some states, however, such as Mississippi and Utah, same-sex couples are still forbidden to adopt. It is, therefore, essential that gay couples investigate the laws in the state in which they reside.

Because the decision to legalize gay and lesbian marriages throughout the U.S. is still new, attorneys continue to recommend that the nonbiological parent in same-sex couples complete stepparent adoptions so that there is no remaining ambiguity should the couple move to another state or split up or should the biological parent predecease the nonbiological parent. The adoption also protects the parent-child relationship in regard to Social Security and other federal benefits.

Legal parents have certain rights and responsibilities. They have the right to live with the child, either full-time or part-time and to make decisions about the child's health, education and well-being. Legal parents are also responsible for financially supporting the child. When they adopt jointly, whether gay or straight, both partners are automatically considered legal parents, whether they stay together or eventually separate or divorce. In states in which it is legal, not only can same-sex couples adopt jointly, but they can adopt the biological child of the other partner, ensuring legal parenthood.

What Happens if a Gay or Lesbian Couple Breaks Up?

If the nonbiological parent has not legally adopted the child, his or her relationship with the child may be in jeopardy if the couple divorces. While some courts recognize the concept of a "de facto " or "psychological" parent, signifying that the individual has lived with the child and fulfilled parental duties, and that it would be detrimental to the child to be completely separated from this "parent," there have been many instances where the nonbiological parent has been treated as a stranger and prevented from having visitation with the child when the couple splits up. Such decisions are clearly cruel to both nonbiological parent and child and will likely cause permanent psychological damage.

Benefits of a Parenting Agreement

No couple, gay or straight, enters into a marriage with the expectation that the relationship will end, but we all know the grim statistics. It is always best to plan for the worst case scenario. If joint parenting isn't available to you as an option, you should consult with a highly competent family attorney to write up a legally binding parenting agreement.

Such an agreement will make clear that, though only one of you is the legal parent, you both consider yourself parents of your child, even if your marriage ends in dissolution. This parenting agreement should cover all issues that may become relevant in case you separate, including visitation, access to school and social events, and the financial responsibilities of both partners.


Monday, February 22, 2016

A Strange Part of Adoption History

Why did gay adult adoption take place?

 Now, when gay marriage has become a legal right in all parts of the United States, looking back at the rampant discrimination against gays since the founding of this country may seem almost surreal. In some ways, it's like looking back at the history of civil rights in general, full of nearly unbelievable injustice. We are all aware that discrimination of all types is still alive and well in the United States, but legal advances have certainly been made.

The question is: What did gay couples do to ensure their partners inherited their estates before laws were changed? In some cases, long-term gay couples turned to the only legal recourse they had in order to enable their partners to inherit their estates: one partner legally adopted the other.

When Discrimination Was Legal

Below are some examples of how far we've come in gay rights, even during the past decade.

[1] In an attempt to liberalize the laws of his day, Thomas Jefferson wrote a law in Virginia in 1779 proposing castration as a punishment for men who engaged in sodomy, instead of the punishment of death that was on the books.

[2] Prior to 1962, when Illinois decriminalized consensual homosexual acts, such acts were considered felonies in every state in the Union, punished by long prison sentences.

[3] The Supreme Court did not strike down laws against sodomy throughout the U.S. until 2003.

[4] As late as 1966, gays and lesbians could not legally buy a drink in a NYC bar.

[5] Even after the Stonewall riots of 1969, the American Psychiatric Association still categorized homosexuality as a mental illness. The designation of homosexuality as a mental disorder did not occur until 1973.

[6] Until gay civil unions became legal, at first only in Vermont in 2000, gay couples had no legal rights to be considered "family" when it came to many important matters, such as visiting partners in the hospital or inheriting assets.

Reading these examples, it becomes clear why gay couples felt they had to find a legal loophole to keep their families intact and financially solvent. In a notable case of adult gay adoption, Bayard Rustin, an early proponent of civil rights, adopted his partner, 27-year-old Walter Naegle, in 1977.

Rustin was no stranger to fighting the system -- he was in charge of logistics for the Rev. Martin Luther King, Jr.'s March on Washington for freedom and jobs, and he was instrumental in working to integrate the New York City schools. Realizing that, since he was more than 30 years older than his partner, he would almost certainly predecease him, he wanted to ensure that his life partner would inherit his estate. In 1982, there were few options available, but the couple saw a newspaper article about a Midwestern couple who had tried (unsuccessfully) to adopt one another in order to form a legal bond. Rustin suggested that they might try the same tactic.

It was far from simple. First, Naegle's biological mother had to legally disown her child. Then a social worker had to visit the Rustin-Naegle home to determine if it was "fit for a child." The social worker, Naegle recalled, understood perfectly well what the situation was, but was actually there to determine that neither the older man, nor the younger one, was being preyed upon.

In their case, the strategy proved successful. When Rustin was hospitalized with a perforated appendix and peritonitis, Naegle was able to visit him in the hospital. When Rustin died, Naegle was executor of his will and inherited as planned.

Fortunately such manipulations are no longer necessary in this country, but adoption, even of the ordinary kind, can require jumping through some legal hoops and a great deal of patience. Any couple, gay or straight, interested in adopting a child should work with an experienced family lawyer to facilitate the process.


Friday, January 29, 2016

Handling Your Finances During Divorce

What are some tips for dealing with your assets during a divorce?

We know you think it will never happen to you, however 50% of marriages end in divorce.  Moreover, divorces are messy, both emotionally and financially. A divorce could end up costing you tens of thousands of dollars in legal fees and other expenses related to the terms of the divorce agreement such as alimony and child support. Why should you let it cost you any more as a result of mishandling assets? You shouldn’t. Here are some tips to help you determine what assets are in play and to assist you in dealing with them.

You might think that dealing with your assets during your divorce is above your head. However, the simple solution is to talk to a financial advisor or even a certified divorce financial analyst that specializes in this area. 

Even if you did not handle  the money while you were married, now is the time to get familiar. The best way to do this is by reviewing tax returns. Tax returns will divulge what assets you and your spouse have. If you know your spouse has an asset that is not listed, he or she might also be trying to hide it from the divorce court. Once you become familiar with the information on the tax returns, you should then turn to non-paper records. We live in a digital world and many financial records are now stored electronically. You should to get comfortable with this medium.

At some point, you are going to have to determine what you will need to live as a single as opposed to in a couple. Be realistic and understand that you may have to shift things around to suit your new lifestyle. 

Most importantly, try to be civil. It is always the case that much more can be accomplished when the parties are willing to work together without malice.

If you are facing a divorce and have considerable assets, you should speak to an experienced divorce attorney as soon as possible. 


Wednesday, December 23, 2015

Family Denied Guardianship of Down Syndrome Relative Who Wants to Wed

When is guardianship of a disabled person unreasonable?

Family members, objecting to the impending marriage of their relative, a 29-year-old man with Down syndrome, petitioned for his guardianship. A Brooklyn Surrogate Court judge, however, denied that guardianship petition, stating that the relatives' objection to his marrying did not provide a reasonable cause for guardianship. The Surrogate Court judge, Margarita Lopez Torres, said that "the yearning for companionship, love, and intimacy is no less compelling for persons living with disabilities."

While the mother and brother of the disabled man, known as D.D., produced certificates from two physicians stating he was "indefinitely incapable of managing himself and/or his own affairs," Judge Torres ruled that guardianship, which takes away all vestiges of independence, should be a last resort in such a situation. She pointed out that the certificates produced were generic in nature and did not specify which particular actions the man in question was able, or unable, to perform.

Since she felt the information she had been given was incomplete, the judge appointed an ad litem guardian from an innovative clinical program at Brooklyn Law School designed to represent individuals with intellectual disabilities. The program, Advocates for Adults with Intellectual and Developmental Disabilities Legal Clinic, thoroughly researched D.D.'s situation and provided an extensive report based on interviews with the parties involved and with many friends and coworkers of the disabled man.

The review concluded that D.D. is able to work, has an active social life, can attend to his own personal and hygiene needs, and can travel independently on public transportation when going to familiar destinations. In accordance with D.D.'s abilities and desires, the ad litem recommended alternatives to guardianship, such as durable power of attorney and a health care proxy. The judge concurred that such measures, if agreeable to D.D., would meet the financial and healthcare concerns of the family.
The director of the legal clinic pointed out that the person in an Article 17-A proceeding, for whom guardianship is proposed, is routinely denied due process, even though the individual stands to lose all "autonomy, the right to vote, the ability to marry, to have a say in health care and financial matters."

In her decision, Judge Torres quoted from the recent U.S. Supreme Court decision legalizing gay marriage, in which it was stated that marriage "rises from the most basic human needs; marriage is essential to our most profound hopes and aspiration." In the meantime, D.D., who presently lives with his mother, stated under oath that he had spent several years saving for an engagement ring for the woman he wants to marry and that he wants to live with her independently in the future.

Legal rights can be cloudy and contradictory even within the boundaries of a family and conflicts can arise even when all parties are well-intentioned. When such situations arise, it is always a good idea to contact an informed and skilled family attorney.

Saturday, October 31, 2015

NY Court Attempts to Unravel Complex Custody Case

How are New York’s custody laws adapting to the ever-changing Alternative Reproduction Technology (ART) landscape?

Fortunately, advances in modern medical technology have allowed otherwise infertile couples the opportunity to bear and raise their own biological children, often with the help of a gestational carrier or via in vitro fertilization. While the law has historically lagged behind science in virtually every industry, changes in the infertility landscape have likewise resulted in one of the most confounding custody cases in recent memory – involving four separate parents, each with a viable argument for custodial rights.

Four parents, One Child

In an unbelievable parenting experiment gone awry, a member of a same-sex male couple donated his sperm to a member of a same-sex female couple, resulting in the birth of a child. The two couples rented adjacent apartments, which were decorated identically and designed to create a seamless environment for the child as it rotated from time with one couple to the other. However, within a year’s time, the arrangement collapsed, and all four individuals sought custodial rights from the New York Family Court.

The biological perspective

Biologically speaking, child has two parents. These two parents are undoubtedly listed on the child’s birth certificate and maintain the status of holding “parentage” over the child. Biological or adoptive parents with full parental rights intact typically maintain exclusive say over issues like custody and visitation. In a case like this, however, the other non-biological partners may also have a strong argument for the establishment of custodial and visitation rights.

In a statement by counsel for one of the women, “It has been my experience that biology does not [always] win out….” In this case, for instance, the court reviewed the petitions of all four parents to determine the best possible outcome for the child, notwithstanding the biological ties that bind. In the end, the court undoubtedly arranged a custody and visitation plan that not only upholds the best interests of the child, but works to maintain family unity as best as possible.

If you are experiencing a difficult family law situation, please do not hesitate to contact Howard B. Leff in New York City today: 516-739-7500.


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