Can A Child Choose Which Parent They Will Live With?

There is a lot of misinformation about child custody disputes. Many clients are confused about when a child can choose to live with a parent.  In all child custody disputes, the Court considers many factors, including the child’s preference on which parent should be awarded custody.

One of those factors MAY be the child’s preference. However, the Court will weigh the child’s preference based on not only the child’s age, but the maturity of the child. As we all know, some children who are 13 years old are more mature than a child who is 15 years old.

The general rule is that the older a child is, the more influence a child’s preference will have on where they live. A child between the age of 13 and 16, will also have their preference seriously considered. Certainly, most Courts will state that once a child turns 16 years of age, their preference will be strongly considered. However, this is not an absolute rule, and a Court can decide that even a 16- or 17-year old’s preference is not to be followed or considered.

There is one absolute, once a child turns 18 years of age, they have the absolute right to decide where they want to live. This is because for legal custody purposes, once a child turns 18 years of age, they are considered an adult.  In contrast, in New York, a parent is obligated to pay child support until a child is 21 years old.  So, although where the child decides to live is up to the child, that decision will have a great effect on who pays child support.

If a child is younger than 13 years of age, most Courts will give little weight to that child’s preference.  However, even for younger children, there is still no absolutes.

What one Judge once said is true of all child custody cases: “There are no rules when it comes to child custody.”

Child custody and visitation can be a very difficult road to navigate. David Badanes, Esq. and the Badanes Law Office, P.C., have represented numerous clients and helped them navigate child custody issue in their divorce or in their family court action. If you are seeking a divorce or custody, contact David Badanes and the Badanes Law Office, P.C.  David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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Ten Quick Child Custody “Battle” Tips for Parents

Here are ten quick tips on how to help you “win” your child custody case:

  1. Keep a Diary:  It can help build your case and potentially as evidence.
  2. Be careful what you say in text messages and emails: What you say can be used against you as evidence.
  3. Be careful on what you post on social media: Whatever you post can be used as evidence.
  4. If you live with the other parent, do not move out (until your attorney tells you that is is OK)
  5. Do not focus on the little things: If the other parent says that you “spoil” the child or that you don’t dress them appropriately.  The Court typically focuses on much more important and bigger issues.  The Judge doesn’t want to hear about such trivial disputes and issues.
  6. Drug or Alcohol Issue: Seek help and therapy immediately
  7. Follow Court Orders: During your Case, the Judge may issue some temporary order, it is important to follow all court orders.
  8. Do not represent yourself
  9. Listen to your attorney’s advice.  Too many times, clients “shoot themselves in the foot” by not listening to their attorney’s advice.
  10. Have patience:  The court process can sometime seem like it is going on forever, it is important to have patience.

When you are seeking child custody, there is a lot you need to know and a lot you can to do to help you win your case.

You need an experienced child custody attorney to help you in your child custody matter. David Badanes and the Badanes Law Office, P.C. have helped numerous clients in obtaining child custody.

If you are seeking child custody or a divorce, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale, across from the Nassau Coliseum).

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Why NOT Having An Attorney Can Hurt You

Although, you have the right to represent yourself in your divorce or in any other legal matter, you do so at your own risk. Recently, I was in Court waiting for my case to be called. While waiting, there were two cases that were being handled by the Court in which one of the parties decided to represent themselves. Each of these cases provide a good example of why NOT having a divorce attorney can hurt you.

CASE #1: Child Custody Case

This was a child custody case. The Mother represented herself, while the Father had an attorney. They had one child together. Prior to the summer and prior to going to Court, the Mother had most of the parenting time with the child. However, for the summer, she decided to let the child spend most of the time with the Father.

Now, after the summer, the Father brings a petition for custody to the Court. The Judge asks a lot of questions to both sides. Then the Judge asked the ultimate question to the Mother, which was: “Do you want to continue to allow the Father to have most of the time with the Child once school starts?”

If the Mother had an attorney, she would have known that the best way to answer this question was a simple “No”, with the second best answer would have been “I need time to consider this question.”

Instead, without an attorney, the Mother asked the Judge: “What are my rights?”.  Since, the Judge can’t represent the Mother or give legal advice to the Mother, the Judge took this non-responsive answer as a way of saying that she was “OK” with the Father having the Child most of the time.

It was clear to me that without a child custody attorney, the Mother “froze” and was “unprepared” for the Court proceeding. With an attorney, the Mother clearly would have done much better.

CASE #2: DIVORCE CASE

This was a divorce case, where the Husband decided to represent himself and the Wife had an attorney. The parties had no children and so the only issues to be decided were the distribution of assets, spousal maintenance (alimony) and attorney fees.

Here, the Wife was the so-called “monied spouse”, as she earned significantly more income than the Husband. During testimony, the Husband testified that he owned the marital home prior to the marriage. It was only several years after the marriage that he put the Wife’s name on the Deed. What the Husband did not know was that his testimony was not sufficient to allow him to claim a credit for the portion of the home that was his “separate property.” If the Husband had a divorce attorney, the attorney would have brought forth evidence of how much the home was worth at the time he put the Wife’s name on the Deed. In this way, the Husband would have been entitled to a credit equal to that amount.

Because the Husband failed to put forth the correct evidence, he lost out on hundreds of thousands of dollars.

If you are getting divorced or have any issues involving children, you need an experienced attorney to represent your interests.  You might think that you can represent yourself, but, there are too many areas of the law where you can make a vital mistake.

David Badanes and the Badanes Law Office, P.C. have represented hundreds of clients and can help you.  If you need an experienced divorce or child custody attorney, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

The Badanes Law Office main office is in Northport, Suffolk County and he has a satellite office in Uniondale, Nassau County.

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The Rules For Relocating With Your Child

Whether or not you can relocate with your child depends on many factors.  The first thing to consider is whether or not there is a custody order or a signed agreement which addresses this issue.

If the custody order directly states under what terms and conditions you can relocate, then those terms and conditions would first apply.  If the custody order does not directly state where you can relocate, then a different set of rules apply.

IF YOUR CUSTODY ORDER STATES WHERE YOU CAN RELOCATE, THEN …

Some custody orders (or agreements) will state that you can move within a certain location or within a certain radius of your current home.  For example, some custody orders might state that you can only relocate within the County you live in or within ten (10) miles of your current home.

If your custody order states where you can relocate, as long as you follow those “rules”, you can absolutely relocate to where the custody order states (in the above example, either within the County you live in or within ten miles of your current home).

If you want to relocate to an area that is not permitted under the custody order, then you have to get Court permission before you move.  You have to convince the Court that your relocation is in the best interest of the child.

However, even if your order or agreement gives you permission to move, the other parent can still go to Court to try to prevent you from moving.  Although, they would probably not succeed, if that parent can provide reasons why moving now is not in the best interest of the Child, then they may be able to prevent you from moving.

IF YOUR CUSTODY ORDER DOES NOT STATE WHERE YOU CAN RELOCATE, THEN …

However, if you want to relocate to a location that is not permitted under the custody order (or agreement), then you have the “burden of proof” to demonstrate why you should be able to relocate.

You first have to demonstrate why relocating is in the best interest of the child.  You cannot simply state that “I can make more income where I’m going to move” or “It is cheaper to live where I want to move to”.

Instead, you have to show that by moving to your new location, that it is better for the child.  You will also have to come up with a plan on how the other parent is going to have time with the child (after you move).

Although, each situation is different, some of the ideas on how to the other parent is going to have time with the child (after you move) are as follows:

  • Facetime (or Zoom) with the child on a frequent basis
  • Extended time when school is not in session
  • Every weekend
  • Every month (on a weekend)

If you are considering relocating or you want to prevent the other parent from relocating, then you should consult a Long Island child custody attorney.  David Badanes and the Badanes Law Office, P.C. has represented many clients who either wanted to relocate or were trying to prevent the other parent from moving.

If you need an experienced divorce attorney on Long Island, contact David Badanes, Esq. and the Badanes Law Office, P.C.  David Badanes can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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Paying for Tutors, Sports and Other Extracurricular Activities

If you have children and are getting divorced, you probably know that the custodial parent is entitled to child support.  However, child support only covers the basics of (i) food; (ii) shelter; and (iii) clothing.  Basic child support does not pay for education expenses, such as tutors.  It also does not pay for a child’s sports, dance, martial arts, music or any other extracurricular activities.

As most parents know, tutors, sports and extracurricular activities can be add up to be a significant expense.  In New York, there is no explicit obligation that the non-custodial parent pay for these expenses.  The default rule is that the parent receiving child support would be expected to pay for tutor, sports and extracurricular activities.  If you want to make sure that you receive payment for these expenses, it is important that your divorce agreement explicitly states who will pay for these expenses and how much they will pay.

If you are the non-custodial parent, you want to make sure that if you are to pay for these expenses, that the agreement is clear on what you have to pay for and how much.

There are many different ways to structure the payment for a child’s activities.  For example: (i) each parent can pay 50% of these expenses; or (ii) each parent pays their pro-rata share (meaning their percentage of the overall income).  Furthermore, you should also have a maximum amount that you will pay for a particular activity.  Here, your divorce agreement could state, as an example that: (i) you will pay 50% of all activities up to a yearly maximum of “X” dollars; or (ii) you will pay 50% for all tutors up to a yearly maximum of “X” dollars, but will not pay for any other extracurricular activities.

Your divorce agreement should also be clear that you will only pay for activities until the child graduates high school.  Otherwise, you might have to pay for these activities while the child is in college.

It is important to know, that if your divorce agreement does not explicitly state who will pay for educational expenses (tutors), sports or extracurricular activities, then the custodial parent will most likely have to pay 100% of those expenses.

David Badanes and the Badanes Law Office have drafted divorce agreements with provisions for tutors, sports and extracurricular activities.  David Badanes makes sure that the divorce agreement is clear, so that both parties understand their obligations.

If you need an attorney to represent you in your divorce, call David Badanes and the Badanes Law Office today at 631-239-1702, email me at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Garden City.

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Divorce Considerations For High Net Worth Individuals

If you are a high-net-worth individual there are certain considerations that you should know when getting divorced.  Some of those considerations are as follow:

Child Support:

For many high-net-worth individuals, their income may consist of a base income plus yearly bonuses.  In other situations, the individual may be self-employed and their income is paid through profit distributions from the company or corporation.  Yet, other individuals may earn some of their income via commissions.  The bottom line is that however you earn your income, for child support purposes it is all considered income.

Some high-net-worth individuals will receive company perquisites, such as: (i) a car or a car allowance; (ii) meals or food allowance; or (iii) expense allowances.  The Court can include the value of these perquisites as “income” and they can be considered income when computing child support obligations.  It does not matter if such allowances are taxable or non-taxable when calculating your taxable income.

Another income consideration for high-net-worth individuals is interest income and passive income.  Interest income usually comes from investment accounts, stocks and bonds.  Passive income is usually from rental income.  Regardless, of how the income is classified, all the income you receive will be considered as income, except, a court will consider legitimate expenses as a deduction from rental income.

As you can determine, for child support purposes, the Court will consider virtually all income sources as “income.”  The New York child support calculations do have a “cap” whereby, the first child support calculation will be up to the cap number (as of 2021, the cap is $154,000.00, this increases every two years, and it is scheduled to increase in 2022).

Once the Court calculates the basic child support calculation it can then calculate child support above the cap number based on many factors.  In New York City and the surrounding suburbs, most courts will calculate child support up to a combined income of at least $250,000.00.  However, for very high net worth individuals, some Judges will consider a combined income of $400,000.  Although, there is no database of the highest combined income that was used, there are reported cases where the Court calculated child support using a combined income of $800,000.00.

If you are the high net worth individual, then it is important to explain why a lower cap is sufficient for child support purposes.  Of course, if you are the spouse who is going to obtain child support, then you want to demonstrate that a higher cap is warranted.  In either of these situations, it is important to demonstrate the actual costs and lifestyle that the child and the parties had prior to the divorce.

Spousal Maintenance (Alimony):

Similar to child support, in determining the amount of spousal maintenance (alimony), the Court must first determine your income.  The same rules for determining your income for child support apply in determining income for maintenance.

However, the combined income cap for spousal maintenance is currently $192,000.00.  Also, in general terms, a Court doesn’t exceed the spousal maintenance cap as easily or in as great of amount as it does for child support.

In addition, to the amount of spousal maintenance, there is the issue of how long maintenance will last.  Here, the court generally adheres to a range of years, depending on how long you were married.

Assets:

In many high-net-worth cases, in addition to a primary residence, there will be one or more vacation homes.  In addition, high net worth individuals often have art collections and other collections that are very valuable.  Other typical assets include: (i) cars; (ii) boats; (iii) bank accounts; (iv) stock or brokerage accounts; (v) businesses; (vi) IRAs, 401Ks and other pensions; (vii) life insurance policies; and (viii) patents, trademarks and copyrights.

Each of these assets may need to be valued and either sold to a third-party or distributed to each of the spouses as part of the divorce.  Regardless, it is important to know what each asset’s gross value is, and if there is a lien or expense associated with the asset, what its net value is.  An expert may need to be obtained to do the valuation.  In many instances, the Court will appoint the expert to perform the valuation, however, the Court will consider your suggestion on which expert to appoint.  Accordingly, it is important that the high-net-worth individual knows which experts are respected in a particular field.

If the asset was purchased during the marriage, it is most likely a “marital asset” and each spouse owns 50% of the asset.  In contrast, if the asset was obtained prior to the marriage, then it may be considered that spouse’s separate property.  However, the burden is on the spouse to demonstrate, with documentation or other evidence, that the property is their separate property.

Sudden Debt or Spending Binge

Most individuals know that they are going to get divorced months before actually filing for divorce.  Likewise, although you might not be the individual who will file for the divorce, you probably have a good belief that your spouse might file for divorce in the near future.

In high-net-worth cases, it is common that prior to the actual filing for a divorce, one person will go on a spending binge or accumulate lots of debt.  This is because all debts, while married are considered marital debt.  By accumulate lots of debt, essentially you are making the other spouse responsible for 50% of “your” debt.

However, it is possible to demonstrate that the debt, although incurred before the filing of the divorce, should be considered the person who accumulated such debt as their sole debt and not marital debt.

Attorney Fees:

If you are the high net worth individual, then it is very likely you will have to pay a significant amount of your spouse’s attorney’s fees in the divorce litigation.  Here, there is no formula or guideline to assist the Court in determining the amount of attorney fees to award.  Instead, the Court determines the amount to award based on these factors, as well as other ones: (i) complexity of the case; (ii) if the party has acted improperly; and (iii) each party’s retainer and how much has been already expended on attorney’s fees.

It is common to see attorney fee awards of $5,000.00 to $50,000.00, depending on each case’s factors.

David Badanes and the Badanes Law Office, P.C. have represented several high-net-worth individuals or spouses married to high-net-worth individuals.  If you need an experienced divorce attorney, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Garden City.

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Tips for Managing Child Custody and Visitation During Quarantine

Currently, most of New York State is under quarantine orders. This has created some issues and problems as it relates to child custody and visitation. Here are some tips on how to manage child custody and visitation.

Follow Existing Orders: If you have a Court Order, then to the best of your ability you need to follow such Orders. If you have any questions about how to do this, then you should consult with your attorney.

  • If You Have the Coronavirus: If you have the Coronavirus or suspect that you have it, of course, the first thing you need to do is seek medical attention. If you have to isolate yourself, then do so. During your isolation or if you are instructed by medical professionals, do not see your children and let the other parent know that you have the Coronavirus or suspect that you have it.
  • Get re-tested: If you were diagnosed with the Coronavirus, then once you can, get re-tested to make sure that you are well enough to see your children. Inform the other parent that you now are symptom-free and that you can see your children.
  • Talk to your children: If your children are old enough to understand, then you should have an age-appropriate conversation with your children about the Coronavirus and how it affected you.
  • If you do not have the Coronavirus and the other parent prevents you from seeing your children, then you must contact your attorney.

David Badanes and the Badanes Law Office, P.C. have helped numerous clients in their child custody and visitation issues and in obtaining a divorce. Please like us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

What You Need to Know About Child Custody (in New York)

By David P. Badanes, Esq.
If you are getting divorced and have children, issues involving the children are usually the most difficult ones. As with most things in a divorce, either you and your divorcing spouse can enter into an agreement about child custody or the Court will issue a child custody order. When discussing child custody, it is important to distinguish the concept of decision-making and the concept of time with the child. Although, the two concepts are related, just because one parent has more time with the child does not necessarily mean that parent has decision-making authority. This article will focus on decision-making.

Most Judges will tell you that they prefer if the parents can come to an agreement about child custody. Most attorneys will agree with that assessment. A child custody agreement will almost always be more detailed than a Court’s Order. Having a more detailed agreement, will help to prevent future disagreements. Of course, there are situations where the parties just will not be able to agree and a Court’s Order will be necessary.

What does a Child Custody Order or Agreement decide? All custody orders should decide who gets to make the following Three Major Decisions: (i) Medical Decisions; (ii) Educational Decisions (including what school the child attends); and (iii) Religious Decisions. In addition, the following other areas should also be in any child custody order or agreement: (i) Extra-Curricular Activities; and (ii) Where the Children live.

When it comes to making the major decisions for a child, there is

  1. Sole Legal Custody: A parent who has sole legal custody will get to make all the major decisions for the child. Furthermore, in most instances, that parent will also get to make the decisions about what extra-curricular activities the child engages in.
  2. Joint Legal Custody: In theory, joint legal custody means that both parent have equal decision making power for the children. However, in practice this might not be true. Oftentimes, when there is a difference in opinion on a major decision, one parent may have the right to have “final decision making”. In other instances, one parent may have the right to make decisions on one area (for example, medical decisions), and the other parent may have to right to make decisions in a different area (for example, educational decisions).

Although, typically the parent who has sole legal custody will have more time with the children, that is not always the case. Similarly, just because the parties have joint legal custody does not mean that each parent will have 50% of the time with the children. Indeed, in most cases, one parent will still have the majority of the time with the children, but, they still may have joint legal custody and the right to share decision making.

If the Court is forced or makes the custody order, then it will almost always award one parent sole legal custody. The Court decides custody by determining what is in the “best interests of the child.” In order to do that, here are some of the main factors that the Court will consider:

  • Willingness to foster a relationship with the other parent
  • Child’s preference
  • Who has been the primary caregiver
  • Availability of the parent
  • Quality of Care
  • Abuse or neglect
  • Domestic Violence
  • Alcohol or Drug abuse

As already stated, whether or not there is sole legal custody or joint legal custody, does not necessarily direct which parent has most of the time with the children. There are many different ways that the children can spend time with each parent. That will be the subject of a separate blog.

If you have questions about child custody, you are seeking custody or you are seeking a divorce, contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have represented numerous parents in their custody actions and in their divorce. If you live in Suffolk County or Nassau County, contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

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What is Parental Alienation?

There are many definitions of parental alienation. A simple definition is when one parent isolates the children from the other parent through words or conduct, such that it creates anger, hostility, lack of affection or division between the child and the other parent.

Parental alienation can come in many different ways. They are:

Negative Comments (Disparagement):
Many times, parental alienation is when one parent states negative comments or criticism of the other parent. This can include insulting the other parent, speaking negatively about the other parent, or blaming you for the divorce. Oftentimes, one parent will state that other parent is “not paying child support” or “always late in picking you up” or other negative comments about the divorce.

In addition to direct negative comments from one parent to the children, parental alienation also occurs when one parent allows their relatives or friends to also engage in stating negative comments. It is not “ok” to allow a grandparent, aunt or uncle to engage in negative comments about the other parent.

Undermining Your Authority as a Parent:
Another form of parental alienation is when one parent allows the children to believe that the other parent’s authority or discipline can be ignored. It is completely improper to tell the children that they “don’t have to listen to you”.

Some examples of undermining authority are when one parent tells the children, while they are with you: (i) that they don’t have to do their homework; (ii) they don’t have to listen to your bedtime; or (iii) they don’t have to do the chores you assign to them.

Of course, it would be best if both parents have similar rules when it comes to parenting the children.

Parental alienation is also defined when you allow a child to make decisions that are more suited for an adult or parent. For example, allowing the child to decide whether or not they can visit with you.

A Second Dad or Second Mom
During the divorce process, if a parent tells the children to call their significant other “Mom” or “Dad”, this is a form of parental alienation. Similarly, allowing the significant other to “act” as a second Dad or second Mom. This could be when the significant other shows up to teacher-parent meetings, coaching the child in sports, or taking the child to the doctor and “acting” as the biological parent.

False Allegations:
False allegations of domestic abuse, child abuse, drug use, neglect or other negative actions are a serious issue by themselves. False allegations can also be part of parental alienation. If one parent uses false allegations so as to alienate the other parent or to restrict the other parent’s parenting time, then that can be considered part of parental alienation.

Parental alienation is a serious concern and unfortunately can happen in your divorce. If you believe that your spouse is engaging in parental alienation, you must take immediate action. David Badanes, Esq. and the Badanes Law Office, P.C. are equipped to notice the signs of parental alienation and help you in fighting such actions.

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Immunizations and Divorce

New York State recently passed a new law, whereby children must be vaccinated against measles and other diseases to attend public or private school. The only exception, that would allow a child not be vaccinated and to attend public/private school, is if there is a valid medical exemption. Before the new law was passed, New York State recognized religious exemptions to the mandate that children must be vaccinated.

The change in the law will also affect child custody issues in a divorce (and in non-divorces where child custody is an issue). There are already examples where one parent wants to have their children vaccinated and the other parent does not want to vaccinate. Courts will now have to consider the issue of immunizations as it relates to child custody. Furthermore, lawyers will need to consider how immunizations are to be handled in their divorce agreements.

WHAT DOES THE NEW LAW SAY NOW?

As stated above, as of June 13, 2019, there is no longer a religious exemption to the requirement that children be vaccinated against many diseases in order to attend either: (1) public, private or parochial school (for students in pre-kindergarten through 12th grade) or (2) child daycare settings.

Although, the new law is being challenged, in the past, the United States Supreme Court has stated that a State can mandate that children are vaccinated in order to attend public school. To date, New York Courts have also agreed with the United States Supreme Court. In addition, New York Public Health Law § 2164 obligates parents to have their children vaccinated against diseases, and New York Education Law § 914 obligates schools to enforce and comply with the aforementioned statute.

Accordingly, as of now, it is constitutional for New York State to require that you vaccinate your child in order for that child to attend public/private school.

HOW WILL THIS EFFECT CUSTODY?

A Court or a Judge cannot force a parent to vaccinate their child. However, by granting custody to a parent that either want to vaccinate the child or to a parent that does not want to vaccinate the child, the Court is essentially deciding if the child will be vaccinated.

As always, a Court/Judge will decide custody on the basis of the “best interests of a child” test. One of those factors may be if a parent wants to vaccinate their child. Many judges would probably agree that vaccinating a child is safer for both the child and the general welfare of the community. However, that would be just one factor in the Court’s decision.
Clearly, the decision to vaccinate your child is a personal one. As it relates to a divorce or child custody, parents may have legitimate differences on whether or not to vaccinate a child. With the new New York State law, when considering child custody issues, Courts and Judges may find themselves having to consider this issue.

If you are u are considering getting a divorce or have a child custody issue, then contact David Badanes, Esq. and the Badanes Law Office, P.C.

Contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

By David P. Badanes, Esq. and Hayley Hayden