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

Back to School Tips for Separated or Divorced Parents

Going back to school can be a stressful time for a child, especially when their parents are newly divorced. However, with proper communication and cooperation, the parents can make the transition to school much easier for the child.

  1. Make your child your top priority: Your child’s wellbeing should be your top priority. Any issues you have with your ex-spouse should not affect your child’s educational experience.
  2. Attend school events with your ex-spouse: Whether it be parent-teacher conferences or various school functions, it is important that you both attend school events and conferences. Your child will benefit from having both parents attend their school events.
  3. Work with your ex-spouse as much as possible: Although there may be tensions between you and your ex-spouse, it is important to keep these differences outside of the school setting.
  4. Review home routines and rules with your ex-spouse: Routines are crucial to your child’s success at school. The smoother the transition between the child’s homes, the easier it will be for your child to maintain focus on their school work. Be sure to communicate and standardize bedtimes, mealtimes, playtime, and screen time.
  5. Communication is key: Be sure to communicate any schedule changes, or relay important information given by the school, after school advisors, or coaches to your ex-spouse. It is especially important to do so when the child’s school activities conflict with the other parent’s time with the child.
  6. Back to school shopping expenses: Typically, back to school expenses are the responsibility of the custodial parent. However, offering to help with these expenses may help ease tensions between you and your ex-spouse.
  7. If you are going through a divorce and need an attorney, contact David Badanes at 631-239-1702 or david@dbnylaw.com. Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

    By: David P. Badanes, Esq. and Hayley Hayden

What if My Ex-Spouse Excessively Calls or Texts Our Children During My Parenting Time?

With the ease of cell phones, your spouse may abuse his/her privileges to call or text your children during your parenting time. Here are a few tips of what you can do.

  • Establish Set Days & Times For Calls & Texts: One of the most effective methods to limit excessive phone calls and excessive texting, is to have set days and times for such communication. For example, depending on the age of the children, you might want to state that your ex can call or text every night from between 8 p.m. to 8:30 p.m. You also need to explain to your ex that any other calls or text messages will be ignored.
  • Use a Specialized Application (e.g. Family Wizard): If your ex still abuses phone calls and texting, then you can use a co-parenting application that can keep track of the excessive phone calls or text messages.
  • Contact Your Attorney: You can contact your attorney who can then send a “cease and desist” letter to your ex (or your ex’s attorney). The cease and desist letter will inform your ex that they are not to continue their excessive phone calls or excessive texting. If need be, your attorney may have to file a petition to court.

Although, there is no excuse for excessive telephone calls or excessive texting, your spouse does have the right to call and text the children (unless there is a court order that states otherwise). If your spouse is only calling once a day or has a few text messages, then that will be allowed.

Whether you are going through a divorce or you are already divorce, many times one of the issues that leads to conflict is your ex-spouse excessively calling or texting the children. If you are contemplating a divorce or you have been served with divorce papers, then contact David Badanes and the Badanes Law Office. The Badanes Law Office has offices in Suffolk County and Nassau County. Their phone number is 631-239-1702, David’s email is david@dbnylaw.com or you can visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Child Support, Child Custody and Parenting Time in Mediation

Some divorcing couples choose to use mediation when resolving their divorce. For couples who can compromise, mediation may be a good alternative. In many divorces, child support, child custody, and parenting time issues are the most contentious issues. Those issues can also be resolved in mediation.

If you choose to use mediation, then this is how issues surrounding children can be resolved:
Child Support: In New York, there is a child support formula. However, with mediation (and also in a contested divorce), you can choose to modify the amount that the formula calculates. There are many reasons why you might want to modify the amount of child support. Some examples: (i) perhaps one spouse will pay the mortgage instead of child support; (ii) you might receive more in retirement assets: (iii) you might receive more in personal property; and (iv) because each parent has more parenting time, that might be a reason for less child support.

Child Custody: One of the best uses of mediation is in the area of child custody (and parenting time). Mediation allows the parents to be very creative with how to determine the issues of decision making and custody.

Parenting Time: Similar to child custody, mediation allows a lot of flexibility when it comes to parenting time. With mediation, parents can arrange their parenting time that fits their schedule and the children’s schedule.

As with any divorce agreement, it is important that in mediation the written agreement is clear and specific. If you choose to use mediation, make sure that the mediator actually drafts the final divorce agreement. Some mediators will only draft a summary or a “memorandum of agreement”, which is not a full blown divorce agreement.

Although mediation can be a good option, there are situations where mediation is not appropriate. For mediation to succeed, both parents have to be: (1) willing to compromise; (2) be able to talk in a civil and respectful manner to each other; (3) be able to listen to the other parent’s opinions and points of view; (4) ready to get divorced; and (5) willing to present fair and realistic options.

In addition to being an attorney, David Badanes, Esq. is also a mediator. Mr. Badanes has conducted numerous successful mediations. If you are seeking mediation, then contact David Badanes, Esq. and the Badanes Law Office, P.C. 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.

Traveling With Your Children – During and After Your Divorce

Here is what you need to know about traveling with your child – during and after your divorce.

For International Travel:

  • Passports: If your child is under the age of 16 years of age, both parents must sign the child’s passport. Both parents should also be present when you obtain the child’s passport. However, if one parent is not there, that parent can sign a document giving their consent. If the child is over the age of 16, only one parent has to sign the child’s passport.
  • Children’s Passport Issuance Alert Program: This is a program run by the State Department that verifies that both parents have consented to allow a child to travel with a passport.

For Both International and Domestic Travel:

  • Itinerary (Knowledge) of Travel Plans: The parent who is not traveling, should be provided with the full itinerary of the traveling parent’s travel plans. They should know where the children are going, what airlines and flights they are taking, and what hotels they are taking. They should also know exactly what days that the children will be away from home.
  • Prior notice: In most divorce agreements, you will need to give adequate prior notice to the other parent on the information stated above.

What if you object to the children’s travel plans?

If you object to the children’s travel plans, you should first consult with your attorney. You may be able to present your objections to the Court (typically in the form of an emergency motion). However, in order to succeed, you need to have a very good reason why the children should not be permitted to travel.

One area where you may have a legitimate reason for concern is where there is a reason to believe that the parent is not going to return from their international travel. You should determine if the United States has extradition rights with the destination country or if the destination country is part of the Hague Convention treaty.

David Badanes and the Badanes Law Office, P.C., have provided legal advice and common sense advice to numerous parents about traveling with their children. If you have questions about traveling with your child or you are seeking a divorce, contact: David Badanes, Esq. and the Badanes Law Office, P.C 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.

Five Things You Did Not Know About Child Custody in New York

Here are Five Things You Did Not Know About Child Custody in New York:

  1. No Court Order means No Rights: For unmarried parents — without a Court Order, you do not have any enforceable rights to custody. This is why if you are an unmarried parent, it is very important to go to Court to get a Court Order for your rights. If you are married, you have certain rights, but, again, to make your rights clear and enforceable, it is important to consult with an attorney to determine if you need to get a Court Order.
  2. Failure to Pay Child Support Does Not Necessarily Affect Custody: If a parent does not pay their child support, it does not necessarily affect their custody rights. Therefore, even if that parent is not paying child support, you cannot unilaterally refuse that parent their parenting time. However, you may want to consult with an attorney to see what can be done with a Court order.
  3. Children’s Wishes May Effect Custody: The key word here is “May”. The older a child is, then the more that their wishes will have an effect on which parent gets custody. However, until a child is 18 years of age, the Court does not have to follow the child’s wishes.
  4. Parental Alienation and False Allegations are Two “Negative” Factors: There are a few factors that the Court will consider when awarding custody. If one parent has engaged in parental alienation or has made false allegations against the other parent, then that will be considered a negative factor against the parent engaging in parental alienation or making the false allegations. In many cases, a Court will award custody to the “innocent” parent even if there are other factors that normally would grant custody to the parent who is engaging in parental alienation or is the one making the false allegations.
  5. In New York, Joint Custody means …: Typically, the term joint custody means that both parents have joint legal custody. This gives both parents the right to make major decisions in the upbringing of their child. Major decisions are usually defined as: medical decisions, religious upbringing, educational decisions, and sometimes what extracurricular activities the child engages in.

David Badanes and the Badanes Law Office, P.C. have represented numerous parents in their custody actions and in their divorce. Contact the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

What the Jon and Kate Gosselin Custody Battle Teaches Us

It has been reported that Jon Gosselin and Kate Gosselin are still locked in a custody battle, which has been going on for over 10 years. The Gosselins were in the hit TLC series, “Jon & Kate Plus 8”, which was about their life with two twins (now 18 years old) and their sextuplets (now 14 years old).

The couple divorced in 2009, yet, to this day, Jon reports that he and Kate no longer communicate, except through their attorneys.

What can their custody battle teach us?

Unfortunately, even years after a divorce, some former married couples still will not communicate. This typically only serves to hurt the children, and the children’s relationship with their parents.

What may help these couples are a couple of ideas:

    1. Use of “Family Wizard” or other communication program. There is a well-known program called Family Wizard. This program helps communication between parents as it logs and records all communications between the parents. With this program, one party can no longer claim that the other party did not send a text (or email), sent a text with all curse words, or simply did not respond to their text. The program also solves the problem of text messages getting deleted or lost.
    2. Going to Family Therapy. Using a family therapist who is familiar with post-divorce issues can be helpful. The therapist is not there to “take sides”, but, to help the parents communicate.
    3. Non-communication will hurt you in court. If either parent does go back to Court to change custody, then the issue of non-communication will hurt you in court. One of the main factors in custody, is cooperation with the other parent. If you go into court and “blame” the other party for not communicating with you, the Court typically sees this as a “two-way street”. The Court wants to see that you went above and beyond in trying to communicate and cooperate with the other parent.

David Badanes and the Badanes Law Office can help you with your divorce or child custody issue. David Badanes has helped numerous clients in their divorce cases. Mr. Badanes personally handles the most complicated divorce cases and also so-called uncontested divorce cases. If you are thinking of getting divorce, or are thinking of hiring a new attorney for your divorce, then call David Badanes and the Badanes Law Office. Contact David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our website: www.dbnylaw.com. The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County.

Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

What You Can Do if Your Ex-Spouse Take Your Child Out of The Country (Without Your Consent?)

Although, it rarely happens, there are instances where an ex-spouse will improperly and without your permission, take your child out of the country. Here is what you can do.

In order to leave the United States, each United States citizen will need a passport. For children under 18 years of age, there are special laws about obtaining a passport. If the child is under the age of 16 years of age, then both parents must agree to obtain the passport. For children who are 16 years and older (and under 18 years of age), then only one parent is needed to obtain the passport.

Once a child has a passport, then either parent who has access to that passport, will be able to use it to take the child out of the United States.

If you believe that your ex-spouse is going to take your child out of the United States, but, the child is still in the United States, then you need to protect your rights to prevent this from happening. You need to immediately get an Order from the Court preventing your ex-spouse from taking the child out of the United States, and also to obtain the child’s passport. The Court’s order should be very clear that the child’s passport should be returned to you and that the child cannot be removed from the country without your written consent.

If the child has already been taken out of the country, then you still need to go to Court to get your child back into the United States. In that case, the Court will look at the following factors to determine if the child should be returned to the United States:

  1. Habitual Residence: The Court will look to see what was the child’s “Habitual Residence”. The Court will look to see: the child’s actual residence, length of time spent at that residence, and whether the child is engaged in school or other activities that would suggest this residence was the child’s permanent residence at the time of removal.
  2. Was the Removal a Breach of Your Custody Rights: Was the removal of the child a breach of your custody rights. Essentially, the court will review the custody agreement and any prior court orders.
  3. Did you give implicit approval to the child being removed. The Court will determine if you gave implicit approval of the child being removed. This could be by some acts that you did or by not actually objecting to the removal.

If your child has been removed from the country, or you suspect that the other parent may attempt to remove the child, you need to contact David Badanes and the Badanes Law Office, P.C. to know your rights.

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Divorce And Start Of School Year

Perhaps you just got divorced, or you have been divorced for a few years, but, your children are about to start school for the first time or enter a new school for the first time. Here are some tips to help you and your children with the transition.

  • Contact the School and the Principal: Before the school year starts, it is a good idea to contact the principal and tell them that your child will be new to the school. You should also make it clear that the child has two parents, but, that you are divorced.
  • Take a Tour of the School. Almost every school will allow you and your child to take a tour of the school. This will help your child get to know the school.
  • Ask if there are any other new students. Ask the school if there are any other new students to the school. Perhaps you can start a new support group of new students and new parents.
  • Look at the school’s website. Every school district and school should have a website. It is a good idea to look at the website and get familiar with what the school has posted.
  • Put everything in writing. You or your attorney should write to the principal and the Superintendent of the School to inform them of your rights and what you expect.

In your divorce, it is very important to make sure that your child’s school knows your situation. It is also important that you help your child with the transition to his/her new school.

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How Old Must A Child Be To Have A Say In Where They Live Or Visit?

In New York State, a child’s preference on where they want to live MAY be one of factors that a Court can consider when awarding custody. Once a child turns 18 years of age, they have the absolute right to decide where they want to live, and the Court cannot overturn that decision. However, what about before a child turns 18 years of age, how old must a child be for the Court to consider their preference?

The general rule is that the older a child is, the more influence a child’s preference will have on where they live. 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.

A child between the age of 13 and 16, will also have their preference seriously considered. Yet, there are many Courts that will discount a child between these ages. In general, a child who is younger than 13 years of age, will have less of a say on where they live.

It is important to note, that each situation is unique and that there is no rule that says that a child younger than 13 doesn’t get to decide where they live.

What happens if the court grants one parent custody and years later the child wants to live with the other parent? What was once in the best interest of an 8-year old child may not be what is best for the child when they are 16. In those situation, a parent can petition the Court to modify the custody arrangement and based on the now 16 year’s old preference, may take that into serious consideration. The court makes these decisions on a case by case basis, and ultimately, the verdict will be the living arrangement that is in the best interest of the child.

Child custody and visitation can be a very difficult road to navigate. David Badanes and the Badanes Law Office, P.C., have represented countless 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.

Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.