New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Offices of David A. Gabay, PC : Serving New York City, Long Island, Suffolk County, Nassau County

 A common problem in my divorce practice arises when one parent wants to take his or her child on a trip which requires a U.S. passport, but the other parent refuses to help obtain a passport for the child. Currently, children under age 16 cannot generally obtain a passport without the consent and assistance of both parents. This is the case regardless of whether one parent has sole legal or residential custody of the child.

Here are some of the ways to deal with the problem of the uncooperative parent:

1.             Include the consent in advance in a written agreement. Almost every divorce of custody case is eventually resolved by a written stipulation of settlement, and those settlements are acknowledged before a Notary Public and ‘so ordered’ by a judge. A little planning and forethought by your attorney can easily resolve the issue of the other parent’s consent. Whenever possible, you should include in your agreement a specific clause for the other parent to consent to the issuing of a passport for the child. The timing of the trip and the details of the travel can be negotiated later, but the issuance of the passport should be agreed to in advance by both parents.

2.             Form DS-3053: This is the State Department’s Consent/special Circumstances form. Here is a link to the form you can download and use. I recently called the State Department to ask how they determined whether special circumstances existed, and was actually told: we decide on a case by case basis. How a parent can plan travel with that kind of uncertainty is just beyond me.

3.             “So Ordered” agreements and the Further Documents Clause: If the agreement or order does not specifically include a passport consent and using DS-3053 is something that is not effective or unavailing for any number of reasons, you can always bring an application in Court to compel the other parent to consent or to punish him or her for contempt; assuming the agreement at issue allows visitation or parenting time without geographical restrictions and has a ‘further documents’ clause. I have successfully used this technique on several cases, and the other parent often appears completely caught off guard when faced with the facts of his or her agreement.

If you would like more information about securing passport consent or other divorce law issues,

please contact me through my website at www.GabayLawFirm.com

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I am a member of an e-mail discussion group for New York divorce and family law attorneys, and over the last few days there has been a pretty interesting discussion of the legal rights of grandparents in New York State. Domestic Relations Law Section 72 spells out the statutory rights of grandparents, and there have been some judicial opinions and law review articles discussing grandparent's rights outside the statute or under the umbrella of other statutes and legal theories.

Of course, like most other areas of family law in New York, what is written and what actually happens are not always the same, and in my opinion there is considerable room for grandparents to maneuver within the Court system to assert their rights under appropriate circumstances.   This is especially true in today’s economy, when grandparents are assuming greater financial and personal responsibility for their adult children and their own grandchildren.

If you have questions about grandparents rights in New York or would like more information about divorce or family law, please visit my website at www.GabayLawFirm.com

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The return of a military parent from activation or deployment will automatically be considered a ‘substantial change of circumstances’ for the purpose of seeking to modify a custody or visitation order made while the member of the military was away on active duty or deployed

The law takes effect on November 15, 2009.

This new law compliments a law passed in 2008 which requires all custody and visitation orders issues when one parent is on active duty be deemed temporary and subject to revision when the parent returns to civilian life.

If you would like more information on New York custody or visitation law, please visit my website at www.GabayLawFirm.com

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Disputes between parents over where and with whom their children spend the holidays can be highly emotional, complex, and stressful to both parents and children. The visceral feelings associated with the holidays, the pressures on parents to provide the ‘perfect’ holiday for their children, and the incredible time constraints faced by all concerned parties combine to make resolving these problems more difficult than usual. Some of these issues will inevitably require Court intervention because the parents either will not or cannot come to an agreement by themselves.

If you find yourself in the position of having to go to Court to resolve an issue regarding child holiday visitation, following these five suggestions should help get you through your ordeal with the least amount of trouble and the best chance of success:

1.    Have multiple copies of the current visitation order or schedule: Courts, attorneys, and Law Guardians dealing with holiday visitation problems will instinctively ask for the schedule or order that is in effect. This is the baseline from which all decisions will be made concerning your issue.

2.    Ask for what you want in clear and concise language: Example: I want to take my son to see his grandparents in Florida for Christmas. The Court generally does not need to know the entire history of your relationship with the other parent.

3.    Tell the Court why it should rule in your favor: If your order or schedule gives you the right to the relief you are seeking, tell the Court the specific page or paragraph numbers which support your position. If it does not, you need to tell the Court why it is fair or right to alter the schedule in this one instance.

4.    Be Reasonable: If you ask the Court to alter the agreed upon schedule and therefore deprive the other parent of time which they are otherwise entitled to, offer to make some concession to them on another visitation issue or provide some additional time to them in the future.  If you are asking the Court to enforce the agreed upon order or schedule, and if doing so would cause the other parent some harm or problem, propose a realistic plan to make that problem as manageable as possible. A judge is much more likely to be sympathetic to a party who is attempting to be reasonable and accommodating than it is to someone it perceives to be overly rigid and doctrinaire. 

5.    Provide Advance Notice: One of the biggest challenges to handling holiday visitation issues is the lack of advance notice and planning by parents. Some of this is the unavoidable result of the conduct of one of the parents, such as refusing at the very last minute to send or receive a child or to honor a agreed to change in the schedule. But, if you know there is going to be a problem which needs to be resolved (your holiday time conflicts with the other parents regular time or your plans require the other parents consent to take the child out of the state), it is important to deal with the matter well in advance of the planned visitation. Asking a Court to deal with a problem on the eve of a holiday visitation not only greatly increases the stress on you, your attorneys, and the Court, but it also increases the likelihood that the Court will not have enough time to thoroughly consider your request and enter any appropriate orders or directives.

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A recent  AP story on MSNBC.com reported that My Space is going to provide law enforcement authorities with information about registered sex offenders using its site. The article is yet another example of the impact My Space and other internet sites have on family law maters today.

In my practice, the internet and My Space have figured prominently in several issues involving children which I have handled in the past 3 months.

In a divorce case, my client’s spouse sought a divorce from my client because the spouse believed my client was involved in inappropriate online conversations with a person my client met on the internet and to whom the spouse believed my client introduced the child of the parties.

One of my custody and visitation cases was made very interesting when my adversary told me my client had posted comments on a My Space page regarding my client’s plans to stop visitation with the other parent of their child.

Finally, my client in a divorce case was being asked by his spouse to take their child to a birthday party and my client did not want to do so. It turned out that the father of the child having the birthday party had a very unusual hobby or interest which was featured on his My Space page.

I’m fairly certain that many of my colleagues could tell similar tales. In today’s environment, the internet and My Space are two sources for information and evidence that cannot be overlooked by a family law attorney.

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For professionals and business owners involved in a divorce, one of the most emotional and difficult problems they face is balancing the demands of their work with their desire to be a parent to their children. Frequent business travel, unexpected work related emergencies, and the long hours that come with owing a business or practicing a profession often render the typical visitation schedules suggested by judges, attorneys, and child counselors completely unworkable. 

One solution to this challenge is to employ “virtual visitation.” Originally developed in connection with child relocation and estrangement cases, virtual visitation can be an effective tool to keep parents and their children connected and in touch in cases where traditional scheduling is not workable or appropriate.

Virtual visitation uses webcam technology to allow parents and children to see and talk to each other when they are physically apart. Using webcams to facilitate visitation helps keep parents and children connected because they can see each other’s eyes and faces and interact with each in real time, and the time spent together can be much more emotionally satisfying than a traditional telephone conversation.

Several states already have legislation authorizing virtual visitation, although New York is not one of them.  However, if the parents can agree on how and when to allow these visits, I am fairly confident most judges would encourage and approve of the arrangement

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