Person In Need Of Supervision

A person in need of supervision, or PINS, covers youthful misbehavior which does not amount to a crime. The Family Court Act §712 defines PINS as a male less than sixteen years of age and a female less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority or who violates the provisions of section 221.05 of the penal law. So what does this mean? Truancy or any other acts which parents and/or local authority are unable to control. Important requirement under PINS is that the acts be habitual. A single act of truancy, incorrigibility or disobedience does not suffice. Essentially a significant pattern must be present before a PINS case may be made. Of course, with most things, there is an exception. Acts involving marijuana need not be habitual and one act will be enough to make out a case for PINS.

A PINS case is formally originated by filing a petition in the Family Court which possesses exclusive original jurisdiction over PINS matters. There is a long list which can be found in the Family Court Act §733 of who can file or initiate a PINS petition. Examples of people authorized to file such a petition include a police officer, a peace officer, a parent or guardian or any person who has suffered injury as a result of the child’s activity. In reality, the overwhelming majority of PINS cases are filed by parents. Before a PINS case can be filed, it must first be referred to probation services. At probation services, a determination will be held to ascertain whether there are treatment programs which the child in question may be eligible. Probation services has 90 days or 180 days with leave of the Court, to assess and enroll a child in specific services. If these services fail, a statement must be filed along with the PINS petition informing the Court of what if any services were provided and the reason for failure. In the event that probation services fail to act within the allotted time frame, then you are allowed to file your PINS petition.

There are specific elements which must be pled in the petition. Specifically, the petition must show that the child in question meets the age requirements as mentioned above. Second, the child in question is in need of services. In addition, the child, and/or their guardian must be notified no less than 24 hours before the initial hearing. Once the petition is filed, upon the child’s first appearance, a law guardian will be appointed. Of importance is that the Court, in its discretion can order the release or detention of the child pending a hearing on the issues.

LEARNING POINT: PINS is a detailed and complicated process for children in need of services. Before filing a petition seek our assistance in preparing the petition and preparing the case. If the petition or case is not properly prepared, there will be a delay in providing the child in question with the services they may need.

Denial of Visitation

denial of visitationOver the past few months I have been frequently asked if a spouse can deny visitation to their divorced partner. In most cases the answer will be no. New York Courts have taken the stance that visitation is in a child’s best interest and that children can benefit immensely if they are guided and nurtured by both of their parents. Typically, the non-custodial parent has the right to significant and reasonable access to their child. What exactly does this mean? In the event that the parents live close to one another, the non-custodial parent should have visitation each week and a part of the child’s summer vacation. Currently there is no clear-cut rule as to how much visitation is significant and reasonable.

Despite what was previously mentioned, under certain circumstances a parent can receive the denial of visitation. Having said that, the parent seeking to deny visitation has to prove that the visitation is detrimental to the welfare of the child, before the court will order the denial of visitation. The court will always take into account the child’s best interests, not the best interests of the parents, as is the case with almost every child custody battle. The court will not entertain a fight between parents that turns into a visitation battle, saving a parent denied visitation without proper approval from the court.

When will the court deny visitation? The denial of visitation may be approved if the behavior of the parents genuine worries about the safety of the child. For instance, if there is strong evidence of neglect, abuse, or mental illness of the parent, the court may deny visitation due to the welfare of the child. However, the court will always look for a less drastic option before deny a parent of visitation rights. For example, the court may order that the visits be supervised. Monitored visits can be sufficient enough to alleviate any worries by the custodial parents and the court.

denial of visitation child custody, divorce attorneyIn the case that you have been denied visitation or there are substantial changes in circumstances, your initial divorce decree isn’t always the final word. Depending on the circumstances, you could always request the court to adjust the visitation agreement, or in must circumstances, implement the visitation rights which you have already agreed upon.  The courts can look at the change in conditions, or in the case of an enforcement proceeding, the reasons why a visitation was withheld and prepare a ruling, once again, determined by the welfare of the child.

LEARNING POINT: If you decide on a separation agreement, obtain the services of a legal professional to help guide and preserve your rights pertaining to visitation.  Visitation is more than one or two weekends a month and a few days during the week.  Who gets the child on their birthday?  What about winter recess?  How many weeks during the summer does the noncustodial parent get custody?  Can I take my child out of the country for summer break?  It is easier to work out an agreement with counsel on your side, than going at it alone and requesting that the court modify the agreement you have in place.