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.

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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.

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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 To Handle An Ex-Spouse That Does Not Abide By The Divorce Agreement

A divorce agreement issued by the court is a legally binding contract. As such, if either party refuses to follow the divorce agreement, you have a few options on how to handle this situation.

  1. You can have your attorney (or you can do this yourself), send a letter outlining exactly how your ex-spouse is not following the divorce agreement (in other words, how they are in breach of the agreement). Depending on what your divorce agreement states, you may have to give your ex-spouse a certain number of days to rectify their breach.
  2. If your ex-spouse ignores your letter or does not fully rectify their breach, then you will have to file a Motion or an Order to Show Cause to the Court. The Motion (or Order to Show Cause) will state that your ex-spouse is in breach and what you are seeking. In many situations, you may be able to request your attorney’s fees.
  3. You may also ask the Court for a finding of “contempt” and that your ex-spouse should be incarcerated. If your ex-spouse is found to willfully breach the divorce agreement, and the Court believes the breach is serious enough, they could order that your ex-spouse be incarcerated.

In general terms, these are the most common examples of how an ex-spouse breaches a divorce agreement:

  • Failure to pay Child Support: The Court treats the failure to pay child support very seriously. If your ex-spouse is not paying you child support, you should immediately go to court to seek relief.
  • Failure to pay Spousal Maintenance (alimony): Similar to not paying child support, the Court will treat this very seriously.
  • Failure to follow the parenting time arrangements: Unlike the failure to pay child support or spousal maintenance, here the Court will be more lenient.
  • It is important to note that just because your ex-spouse doesn’t pay child support, this does not mean that you can prevent your child from visiting your ex-spouse.

Divorce can present many challenges, even after the divorce is finalized. David Badanes, Esq. and the Badanes Law Office, P.C. can help you and will answer all your questions about the divorce process. David Badanes and the Badanes Law Office, P.C. can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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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.

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Divorce, Summer and Your Children

Well, summer is here, and you are in the middle of a divorce or thinking of getting divorced. How are you going to share the children during the summer? Here are a few ideas:

  • Camp: If your children have traditionally gone to camp, then it probably will be a good idea to keep sending them to the same camp. Although, now your finances may be stretched a bit thin, keeping as much consistency in the children’s lives is paramount. Indeed, in many situations, a Court may order you to keep sending the children to camp. As for who pays for the camp, that would depend on your income and your spouse’s income. Typically, camp is considered a substitute for child care, and in those situations, payment would be in proportion to your income (pro-rata).
  • Vacations: Whether or not your children goes to camp, if you have the time and the resources, this may be a good time to take your children on a vacation. It doesn’t have to be the “all-inclusive, five-star vacation”, almost any vacation or place will do. There are many good ideas on the internet on where to go and how to save money on your vacation. Typically, you should be able to have two weeks of vacation time with your children, although it will be non-consecutive.
  • The so-called “staycation”: If you can’t afford to go away, you can still enjoy a “staycation”. If you live here on Long Island, there are many opportunities and places to visit. Of course, there is the beach, but, there is also New York City, museums, parks, trips to Fire Island, Montauk or the East End.

In your divorce, it is very important to make sure that you include the ability to take vacation time with your children and to include terms and conditions about camp. You want to make sure your divorce agreement is very specific as to vacation and camp, to avoid any issues after the divorce is final.

David Badanes and the Badanes Law Office, P.C. have represented and help numerous clients in making sure they get vacation time with their children. If you are thinking of getting 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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Do I Have To Keep Bringing The Children To See My Ex-Spouse If The Ex-Spouse Constantly Doesn’t Show Up?

In some situations, you may be bringing the children to see your ex-spouse, yet, the ex-spouse isn’t there or constantly doesn’t show up. In those situations, here is what you should do.

  1. If your ex-spouse generally does show up, but isn’t there, then you should give him/her at least 15 minutes to show up. You should also send a text message reminder to your ex-spouse stating that you will be meeting them at the specified time. If, after 15 minutes, your ex-spouse doesn’t show up, then send another text message saying that you are leaving and that he/she can call you when they are ready to pick up the children.
  2. If your ex-spouse hasn’t shown up for months, then you should send him/her a letter, via certified mail, return receipt requested, stating that you will no longer bring the children to see him/her. I would highly recommend having your attorney write this letter. If your ex-spouse responds to the letter, stating that he/she will now show up, then you should bring the children to see him/her.

In situations where the ex-spouse doesn’t show up to see the children, there are no “cookie-cutter” answers. It is important to protect your rights and to make sure that you are not violating any court orders. This is why it is best to make sure that you document what you are doing and to inform your attorney.

If you need help with your divorce, post-divorce or any other issue involving child custody or child support, David Badanes and the Badanes Law Office, P.C., have the experience and knowledge to help you. Contact David Badanes and the Badanes Law Office, P.C. at 631-239-1702, email at david@dbnylaw.com or visit our website: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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Can I Make Up Lost Parenting Time With My Children?

After your divorce, if there are children involved, each parent will have designated parenting time (sometimes called “visitation time” or “parental access time”). For example, one parent may have alternating weekends plus weeknight visits, or each parent may have 50% of the time with the children.

Oftentimes, either the non-custodial parent will lose some of their parenting time due to illness, work or some other valid reason. Whether or not that parent is entitled to “make up” time, depends on two factors: (1) Does the divorce agreement address “make up” time for the non-custodial parent’s missing parenting time? and (2) The relationship (or lack thereof) between the two parents.

In most divorces, there will be a divorce agreement (usually called a “Stipulation of Settlement”). The agreement will specify when each parent has parenting time with the children. The agreement can also have a provision for make up time.

However, typically, make up time is for when the custodial parent takes a day or a weekend “away” from the non-custodial parent. This, happens when there is a holiday, birthday, or other special event that takes away from the non-custodial parent’s parenting time. In those instances, the non-custodial parent is “due” make up time as it was the custodial parent who was “at fault” for the non-custodial parent missing parenting time.

In contrast, it is extremely rare for a divorce agreement to address or allow a non-custodial parent make up time for when the non-custodial misses time due to the non-custodial parent’s “fault” (meaning, illness, work or other reason). In those instances, the reason for the missed parenting time was due to the non-custodial parent’s action.

Therefore, unless your divorce agreement explicitly states that the non-custodial parent is allowed make up time due their own illness or other valid reason, in order to obtain make up time, in those situations, is to rely on the relationship between the divorced parents.

If you are lucky enough to have a working relationship with your ex-spouse, then you can always request make up time or to switch parenting time with your ex-spouse. Of course, your ex-spouse is under no obligation to give you make up time, however, perhaps they will realize that in the best interests of the children, it is best that they have as much time with both parents as possible.

David Badanes and the Badanes Law Office, P.C., have the knowledge and experience to make sure that you receive the best parenting time schedule as possible. If you need an aggressive attorney to represent you in your child custody dispute, then 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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Can I Change My Child Custody Agreement Even If I Have Been Divorced a Long Time?

In many divorces, the children are fairly young, and your divorce agreement regarding child custody may be very outdated. However, provided your children are under the age of 18 years of age, it is never too late to change your child custody arrangements.

In order to change any child custody agreement, regardless if it was signed two days ago or fifteen years ago, you typically have to show a significant change of circumstances. This means, that since the date that the agreement was entered into, that there have been many (significant) changes in the children’s lives; the custodial parent’s situation or your situation.

One good reason to have a change in custody, is that the children now want to live with you. However, the children will have to be sincere in their reasons for wanting to change their living situation from one parent to the other parent.

Another possible good reason, is that the custodial parent wants to move out of New York State, but, the children want to stay in New York.

If you are not seeking a change in custody, but, only more parenting time with the children, that may be easier to obtain. Again, you still have to show a significant change of circumstances (i.e. a good reason), why you should have more parenting time. Every situation is different, so depending on how much more time you want, and why, it hard to predict if your request will be granted.

David Badanes and the Badanes Law Office, P.C., have represented countless clients in their divorce. If you are seeking a divorce or a change in your child custody agreement, 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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