Common Lies Told During a Divorce

Here are some common lies that you may hear during your divorce.

LIE: You can’t make me move out of the house

In New York, as part of the divorce process, the Court will determine who can stay and who has to move out of the house (or apartment). This may happen at the end of the divorce or at some point during the divorce. If there is domestic violence, then you may be able to get a Court order immediately removing your spouse from the house. Even, if there is no domestic violence, as part of the divorce, the Judge can order the sale of the house or that one spouse “buys-out” the other spouse’s interest in the house. At some point, the Judge will order that one spouse has to leave the house. So, yes, a spouse can be made to “move out of the house.”

LIE: I will ignore (or not accept) the divorce papers, so you can’t get divorced

Although your spouse can ignore (or not accept) the divorce papers, you can still get divorced. Your attorney (or you) can petition the Court that your spouse is ignoring the divorce papers (that is your spouse is not responding to the Summons or other divorce documents). In New York, if your spouse ignores the Summons or divorce papers, then the Court can conduct what is called an “inquest.” At the inquest, the Court can grant you a divorce.

LIE: I will not pay you any child support

Technically, this could be true. However, if you are awarded child support, there are many ways you can try to get payment from your spouse. Most of the time, there are ways to find money and payment from your spouse. Yet, if your spouse does not have an “on the books” job and has hidden all of his/her assets, then they may be able to not pay you any child support. This is typically very rare. If your spouse does not pay child support, then the Court can hold the person in contempt and your spouse can be imprisoned for failing to pay child support. Many times, right before facing imprisonment, your spouse will come up with the amount of child support that is owed to you. If the spouse still refuses to pay child support, then they can go to prison. So, technically, your spouse does not have to pay child support, but, they will face serious consequences.

LIE: You have no money, so you can’t afford an attorney

In New York, the spouse who earns all the money can be ordered to pay most, or even all, of your attorney’s fees. If you are a stay-at-home-parent and have no income, your attorney can immediately petition the Court to have your spouse (who does have income) to pay your attorney’s fees. Therefore, the fact that you have no money does not automatically mean that you can’t hire or afford an attorney.

LIE: If you divorce me, you will never see the children

It is extremely rare that a Court will determine that a parent has no rights to see the children. In certain situations, a Court may order “supervised visitation”, which means that the parent must be properly supervised when the parent sees the children. Even if a parent is in prison, a court can order you to bring the children to visit the imprisoned parent.

As for the parent “kidnapping” the children, despite what you see on the news, this is also extremely rare. For the few times that a parent does attempt to kidnap the children, they are caught virtually every time.

If you are not sure what to believe when you are going through a divorce and need an attorney, contact David Badanes and the Badanes Law Office, P.C.

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

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.

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

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

Your Ex Never Shows Up For Scheduled Visits – What You Can Do

Unfortunately, in some divorces, one of the parents will constantly not show up for their scheduled visits (parenting time) with the parties’ children. This can be especially frustrating when the location for the exchange of the children is at a location that is not your residence. Here are some things you can do if your ex is not showing up for scheduled visits.

  1. Keep a log (diary) of each time that your ex does not show up. Make sure your log states the date and how long you waited. In general, you should wait at least 15 minutes before leaving the exchange location.
  2. Text your Ex. Since virtually everyone has text capability, you should text your ex prior to the exchange time (about 30 minutes before) and then also text your ex when you are at the exchange location. If the exchanges are at your residence, then you can text at the time when the ex is supposed to be there. Make sure to save and print out your text messages.
  3. Send letters to your Ex. After three or more “no shows”, you should send a letter to your ex, stating that he/she did not show up at the exchange time or location. In the letter, you can state that unless your Ex gives prior notice that he/she will arrive on time for the next visitation time, that you will not be there for the next exchange. It is good advice to have your attorney send this letter. It is also good advice to send the letter by certified mail, return receipt requested.
  4. Go to Court. You may want to go to Court to get a Court order stating that you do not have to wait for your ex to show up at the exchange location.

If you are seeking a divorce or need to hire an attorney, please 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 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.

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.

Do I Have To Force My Child To Visit The Non-Custodial Parent?

Legally, the answer may be “yes”. If there is a Court Order requiring “visitation” or “parenting time”, then, you are required to follow the Court’s Order.

However, a parent with a young child versus a parent with a teenager are two very different scenarios. In virtually all situations, a young child will be required to have parenting time with the non-custodial parent. In contrast, a teenager who is over the age of 16 years of age, may not be “forced” to have parenting time with the non-custodial parent.

Although, you are required to follow a Court’s Order, there is also a “reasonableness” and common-sense factor. In other words, there could be an overriding situation, where you do not need to physically deliver the child to the other parent.

For example, if a child is too ill or too sick to visit, then you could legitimately have a valid reason to keep the child at your home. However, the child better be “truly sick”, as the other parent could order a “well check”, by calling the police to see if the child is ill or too sick to visit.

If a child is too ill or sick to visit, or a teenager is refusing to visit the other parent, it is important that you communicate the situation in a timely matter with the other parent. This will make the courts view you in a more positive light, than just not delivering the child at all. It may also help to document each instance of your child’s refusal, and the circumstances surrounding the event.

If your teenager doesn’t want to have parenting time with the other parent, you should try to determine the reasons why. It should not just be because they are “bored”. However, if there is a seriously negative situation at the other parent’s home – i.e. physical abuse – then you should take action in court immediately. You should not just simply stop visitation.

It is important to note that Courts want both parents to be involved in their children’s life. If you cut-off all visitation with the other parent, there could be serious negative consequences to you.  For example, the Court could determine that you are no longer eligible for child support.

If you have questions regarding custody and are thinking of seeking legal action, contact David Badanes and the Badanes Law Office, P.C.  Call us at 631-239-1702 or email David Badanes, Esq. at david@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: https://www.facebook.com/BadanesLawOffice.

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.

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