Robert G. Smith, PLLC

July 2016 Archives

How family law judges resolve child custody disputes

Reaching decisions in child custody or visitation disputes can be a delicate and challenging process for family law judges in New York and around the country, and their primary concern in these situations is to determine what would be in the child's best interests. While the best interest doctrine is widely used, it is also somewhat nebulous and can be difficult to apply when both parents make impassioned claims. When contending with highly charged emotional arguments, judges may look first to see which parent has been the child's primary caregiver.

Claiming an ex-spouse's Social Security benefits

Social Security benefits extend to spouses, and that benefit does not necessarily end with divorce. New York residents who are divorced may be entitled to benefits from an ex-spouse's Social Security, but this depends on various factors, and the rules are somewhat complicated.

Child support and its effect on credit ratings

Parents in New York who fall behind on their child support could then find themselves struggling to get a loan or facing higher interest rates. This is because child support collection agencies report missed child support payments to credit bureaus, and therefore this missed disbursements may appear on credit reports and lower a person's score. In fact, these types of missed payments can be regarded as seriously as missed mortgage payments.

Scriveners Beware: The General Rule That An Income Tax Refund On A Joint Return Gets Evenly Split Does Not Apply Unless The Terms Of The Divorce Settlement Expressly Preserve That Right.

The general rule in a New York divorce case is that each spouse has a right to 50% of the marital portion of an income tax refund, because such portion of the income tax refund constitutes marital property.  Cohen v. Cohen, 132 A.D.3d 627;  Hymowitz v. Hymowitz, 119 A.D.3d 736.

Court Access For New York Child Custody And Child Visitation Hearings Often Depends Upon The Definition Of Who May Be Considered A "Parent"

In the landmark case of Troxel v. Granville, decided in 2000, the United States Supreme Court stated that the interest of parents in the care, custody and control of their children is a fundamental constitutional right and the high court struck down Washington state visitation statute because it unconstitutionally infringed on that fundamental parental right by allowing non parents to petition in Court for visitation.  On June 9, 2016, when the New York Court of Appeals decided SL v. JR,   the Court stated that parents have a fundamental right to custody of their children and held that in New York child custody litigations, as a general matter, custody determinations should be rendered only after a full and plenary hearing.  In a child custody conflict between two parents, if a trial court does opt to forego a fact hearing, great care must be taken to clearly articulate which factors were -- or were not -- material to the trial court's determination, and the evidence supporting its decision. 

Singer asks for joint custody of child

New York fans of singer Louis Tomlinson may have heard that he has filed for joint custody of his 5-month-old son. As part of the request, a judge will determine how much in child support he will pay to the child's mother. Currently, he is paying $15,000 per month and is also renting a home in California for the mother and son to live in.

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Robert G. Smith, PLLC
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