False Accusations Against a Spouse Can Lead to Losing Custody of Your Child

Often in divorce cases, the parties lose focus of the big picture and turn to a “win at all costs” strategy.  As any attorney will tell you, this seldom, if ever, works out the way you think it will.  This type of scorched earth policy tends to come out when fighting over custody of the children.  A prime example of how this tactic can back fire is found in the case of Carnike v Kasson.

In the Kasson matter, the parties had  one child.  The parties divorced and the Court awarded joint physical custody as it was clear both parents were loving responsible people.  The order directed the child moving from mother to father on a weekly basis. Right before the child, a little girl, was to start kindergarten, the wife made accusations that the father was sexually molesting the child, abusing alcohol and as a result of his job, rarely if ever home to take care of his daughter.   As a result, she petitioned the family court to have physical custody granted to her with the father only having supervised visitation.  Based on these accusations, father crossed moved for sole custody claiming that these accusations were only made to pull custody away from him and destroy any relationship he had with his daughter.

To warrant a modification of a pre-existing custodial arrangement, there must be sufficient evidence to support a change of circumstance reflecting a real need for a change in the order to continue the best interests of the child.  Courts have held that starting school is enough to warrant a change in circumstance requiring the establishment of a residence for the child.   Additionally, Courts have held that the lack any ability of the parties to communicate with each other concerning the needs of the child does not advance the best interests of the child and that it in itself is enough to establish a change in circumstances which may be enough for the Court to change the custodial arrangement.  Had the wife in this case stopped at that, simply saying that her daughter was beginning school and having her change her residence every Saturday evening was not in the best interest of the child, this case might have been decided differently.

At the hearing, the evidence showed that despite being seen by six different doctors there was no evidence of sexual abuse.  Additionally the court took note that there were no outstanding child protective service investigations nor any reports made by the mother to the police department.  The Court found that the mother in this instance was purposely attempting to interfere with the father’s parental rights.  Finally, despite the mother’s attempts to curtail visitation and custody, the father testified that he was willing to continue to promote the relationship between the mother and daughter.  As a result, the Court granted the father full physical custody of his daughter. Unexplainably, the Court declined to grant sanctions against the ex-wife for her accusations and actions.  This is the only part of the case that is surprising.  One can only assume that after losing physical custody of her daughter the Court deemed sanctions as unduly “piling on.”

False accusations and parental alienation is the fastest way for you to lose physical custody of your child.  Remember, divorce is hard enough for children to adapt to, the last thing they need is for you to ruin the relationship with your former spouse for no other reason that you are employing scorched earth tactic.  The best interests of your child is always to have a loving relationship with both parents.  It is imperative that you always foster such relationships and not interfere.  While you may no longer wish to speak to your ex-spouse, for the sake of the children, until they are emancipated, you must have at least a cordial relationship where you can discuss your child’s up bring.  It is to your peril if you are unable to keep such a relationship going. If you’re facing such problems, call a an experienced Long Island divorce attorney at Divins & Divins, P.C. for your free consultation.

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Sale of the Marital Estate in New York

One of many issues which must be dealt with when getting divorced is what to do with the marital estate.  For purposes of this article, we are going to assume the martial estate was purchased during the marriage from marital funds.  Future posts will deal with a marital estate that was either originally separate property or separate property was used to purchase the estate.

The marital estate is marital property and must be disposed of in accordance with the Domestic Relations Law.  The first option is to simply sell the home. Once the sale is complete, any profits or losses are to be shared equally between the parties.  If you have been following these posts you know by now that nothing is that simple.  The other option is to have one party buy the other party’s interest.  You simple decide on a fair price and the party wishing to remain in the home must buy the other party’s interest in the home.  Yet another option is to trade your interest in exchange for other marital property or responsibilities.

For instance, we recently had a case where our client, wife, was to retain physical custody of the children.  The husband did not want to pay child support and we were heading straight to a trial.  We began discussing the marital estate.   There was significant equity in the house.  We agreed to have the husband waive his interest in the house in exchange for his child support obligation.  We simply calculated what his child support obligation would be and compared it to his equity in the house.  As both numbers were close, this was a creative way to have the wife keep the marital residence, the children stay in the home they were used to and dispose of the marital estate.

The most challenging aspect of the marital residence is when one party does not want to sell the asset yet wants to be divorced.  Fear not, the house will be sold however if you cannot get the parties to agree, then you must look to the Court for assistance.  In our example, the marital estate is own by the parties as tenants by the entirety.  Therefore, the Court will lack the authority, absent the consent of the parties, to order a sale of the marital estate while the parties are married.   If your spouse stands their ground, the Court can order a sale after you are divorced.  The Court can and will order how the net proceeds or liabilities are to be split.

Then there is the hybrid case, where both parties want to sell the house but there are young kids involved.  Another possibility that is often used is to allow the spouse who retains physical custody of the children to remain in the house.  That spouse will be responsible for all the bills related to the marital estate and will agree to indemnify the spouse who is moving out in the event any liabilities relating to the house arise.  Normally in the separation agreement, there is language which provides that the spouse who remains in the house shall pay all bills relating to the estate and that in the event the mortgage is not paid for a certain amount of months, the house will be automatically put up for sale.

Disposing of the marital estate can be complicated and is not as easy as simply selling off the estate.  If you are contemplating divorce and you believe the marital estate may be an issue, contact us immediately to begin preparing your matter.

Fighting For Custody of A Child

Child Custody Lawyer Long Island

If the parties in a divorce cannot agree on who should have residential custody, a full hearing will be needed. At said hearing both sides and the law guardian, the child custody lawyer appointed to represent the children’s interests, will be allowed to present evidence. These hearings are lengthy and may last a couple of days.

To assist the Court in determining what is in the best interest of the children and thus, which parent should retain residential custody, the Court may appoint an expert to assist. The Court may direct the parties to submit to a forensic examination. §251 of the Family Court Act expressly empowers the Court to subject a parent or other person legally responsible for the care of a child to submit to an examination by a physician, psychiatrist or psychologist. The examination is limited to the purpose of assisting the Court in resolving child custody. Non-parties may not be ordered to attend an examination over their objection without prior notice of a Court application for such relief.

As a general rule, the reports generated by the forensic expert will not be admissible unless both sides agree. Generally, the expert must testify and be subjected to cross examination. The expert fees will be paid by the parties on a pro rata basis. The Court is not necessarily bound by the opinions and recommendations of said expert if the Court determines that the recommendation was based on inadequate information, there is a clear bias for or against a party, or the expert ignored significant conduct of one of the parties. In addition to the forensic report, a Court may order a “home study.” Much like it sounds, this is a study to observe the conditions of the home.

Finally, in determining what is in the best interest of the children, their opinions and thoughts will be taken into consideration by the Court. The law guardian is there specifically to ensure their concerns are adequately represented. The law guardian is paid for by the parents, again, on a pro rata basis. Obviously, the younger the children at issue, the less of an impact their wants and desires will have on the Court. On the other hand, if you have teenage children, the older they are, the more weight the Court will give to their opinions.

LEARNING POINT: Custody battles are long and expensive and should not be entered into lightly. You and your children will be subjected to questions by experts. The best practice, if possible, is to amicably settle child custody issues. However, if settlement is not possible, you must be ready for a protracted battle in which you will need top notch representation. Call us immediately for a free consultation to map out the best strategy for your case.

Child Custody Lawyer Long Island

Temporary Order of Protection


In an effort to help victims of domestic violence, either the Family Court or Criminal Court may issue orders of protection. These orders may be temporarily granted ex parte. In other words, a temporary order of protection may be granted without the offending party present. The Court will consider the following when deciding whether or not to grant a temporary order: what is the alleged condition and will this order alleviate said condition; were there previous orders in place; were there previous incidents of abuse; the nature of the threats; are drugs or alcohol a factor in the alleged abuse; and does the alleged offender have access to weapons.

When presenting your case to a judge, you must be ready not only to articulate what the offenses are in which you are seeking protection, but you must clearly articulate the abuse occurring and be as specific as possible with dates and times. Remember, after the Court grants you a temporary order, its just that, temporary. The offending party will be served with the order and given an opportunity to rebut your allegations.

If the Family Court determines upon initial review of your petition that physical injury to the victim has been caused by the respondent or that other aggravating factors exists, the Court may immediately issue an arrest warrant. The Family Court Act authorizes the Family Court to issue arrest warrants and to set and accept bail for respondents. If the Family Court is not in session and a magistrate judge isn’t accessible, the local Criminal Court will arraign the respondent under §530.11 of the Criminal Penal Law.

After the temporary order is served, a hearing date is scheduled.Both sides are entitled to an attorney to represent your respective interests. Testimony is taken and you have the opportunity to cross examine any witnesses presented to rebut your position. After the hearing the Court will render its decision.

LEARNING POINT: The key to obtaining or defending against an order of protection is preparation. While you are able to obtain a temporary order by simply walking into the family court and presenting your side to a judge, you will need to thoroughly prepare for the hearing. Call us immediately so that we can adequately represent your interests.

temporary order of protection