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01/08/2025

CAN I RELOCATE WITH MY CHILD OUT OF NEW YORK STATE?

When you have a child with your partner, it may be more difficult for you to move away from the other parent if that parent does not consent. If both parties do not agree, then an application must be filed for the Court to either prevent or allow the relocation. Generally, there are two scenarios that occur. Either this is the first time an application for custody is made by a parent in Court, or the parties have a previous custody order that one parent is seeking to modify to allow the move.

There are several leading cases on the issue of making custody determinations. The overarching standard is what is in “the best interests” of the child. The fact that the parent seeking custody of the child would like to relocate is one of many factors a Court will consider in making an initial custody determination.

Where there is a previous court order, there are specific factors that the Court of Appeals set forth in the case Matter of Tropea v. Tropea, 87 NY2d 727 (1996)for a court to consider in determining whether the relocation is in the best interests of the child. These factors include, but are not limited to, (a)each parent’s reasons for seeking or opposing the move; (b) the quality of the relationships between the child and the custodial and non-custodial parent; (c) the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent; (d) the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move; and ( e) the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements. See id. at 740.

Whether or not a parent will be successful on a request to relocate with the child is very fact specific. While there may be similarities on a case-by-case basis, each one has its one set of unique circumstances. A court must balance the reasons for the relocation by one parent against the other parent’s right to have meaningful contact with the child.

If you are considering relocating with your child or would like to prevent a relocation by the other parent, contact a member of Geffner Kersch for an exploratory conversation on filing an application.

10/29/2024

Divorcing The Narcissist Part Two: Choosing Your Path
By: Alisa Geffner

One prominent characteristic of a narcissist is their desire to control the outcome at all costs. This will become most apparent in your spouse when going through a divorce based upon several uncontrollable components, namely, your choices in the divorce process. Your spouse may attempt to “guide” you through your decisions, including even strongly suggesting who you should hire as an attorney. Many times, your spouse may try to convince you that lawyers should be avoided, and mediation is the best option.

Having representation by an attorney is imperative. Not having an attorney is like going into surgery without a doctor. A major misconception about lawyers is that they are expensive and will only inflame the situation. If you choose the appropriate attorney for you, the opposite is true. In my practice, we pride ourselves on trying to achieve quick and amicable results. However, this may not be possible when divorcing a narcissist who is usually only concerned with their own needs at the expense of yours. That is when it is imperative that you hire an attorney who can navigate the process for you and not back down to your spouse. The one thing a narcissist cannot combat are the facts. You should have an attorney who is well-prepared with information to make sure you secure a fair and reasonable result.

More likely than not, mediation with a narcissistic spouse will not achieve a favorable result. Mediation is a process in which a mediator is hired to resolve the issues in your divorce action, including custody, support and distribution of assets and liabilities. A mediator does not represent you, nor your spouse. The mediator’s main objective is to move the two spouses to the center without imparting their knowledge as to what one spouse may be entitled to or may be giving up in the deal. Where there is an unequal power struggle between two spouses, this may be a reason why mediation is not appropriate. It may be an opportunity where the one spouse bullies their position to the other spouse to get that spouse to acquiesce to their detriment. Also, if one spouse is in the dark as to the marital finances, this can represent a challenge in achieving a fair result. Many of these characteristics are common in a relationship with a narcissist. However, if you decide to attempt mediation with your spouse, you should consult with an attorney beforehand so you can strategize your position on these issues and be empowered with knowledge as you participate in mediation.

If you are about to embark upon the divorce process with a narcissistic spouse, make sure to choose the right path and advocate for yourself. You can contact a member of Geffner Kersch to help strategize the best options for you.

10/23/2024

2024 Making Strides Against Breast Cancer Walk at Jone Beach

On October 20, 2024, Carolyn D. Kersch, along with her daughter, attended the Making Strides against breast cancer walk at Jones Beach. Carolyn walked to honor 4 year survivor, Michelle Koss, Investment Executive at Cetera Investors.

10/16/2024

It’s About to Drop!
Alisa J. Geffner, Esq. and Carolyn D. Kersch , Esq. appear on the podcast “Dating Daycare” discussing getting married, being married, Divorce, and life after divorce. You can listen starting Wednesday, October 16, 2024 on all platforms, including Spotify, Amazon, Apple, and several other podcasting apps.

08/22/2024

What’s in a Right of First Refusal Provision?

Through this blog we will provide you with information to help you decide whether the inclusionof a right of first refusal provision is right for you. A right of first refusal is a provision in a custody agreement which provides that if the parent who is exercising parenting time with the child(ren) is unable to personally provide care for them, before enlisting a third party, babysitter or other childcare provider, the other parent must be offered the right of first refusal to care for the child. In theory, this sounds like a terrific idea. However, there are many complicating factors which you must consider.

Time:How long the parent will be unable to care for the child(ren) is always a consideration. For example, if that parent is unable to personally provide care for the child for thirty (30) minutes, it hardly makes sense for the other parent to swoop in to provide care for such a short time. Typically, I see a period of at least three (3) or four (4) hours to make this provision meaningful, which depending upon how far the parties live from one another, may even be short. Further, you need to consider during what time the number of hours takes place. For example, if the child(ren) go to bed at 8 p.m., and the parent exercising parenting time will be out of the home from 9 p.m. to 1 a.m., should that trigger a right of first refusal? This would require the child(ren) to be woken up to transfer their care. During sleeping hours neither parent is exercising meaningful time with the child(ren). Therefore, it may make sense to say that if either parent is unable to personally care for the child(ren) for the agreed upon time between the hours of 8 a.m. to 8 p.m., then the right of first refusal option will be triggered, or during waking hours (not overnight). This can be tailored to fit the child(ren)’s sleep schedule.

Enforcement: Many clients have come to me over the years complaining that the other parent failed to offer the right of first refusal. That parent lies and says they were not away from the child for the specified time period. It is hard to prove in a Court that this provision is violated, absent surveillance from a private investigator, which can be costly.

Two-way street: Right of first refusal provisions are typically a two-way street, meaning it will apply to both parents. Typically, there is one parent who wants this provision as they fear that the other parent will leave the child(ren) with their girlfriend/boyfriend or constantly delegate care to another family member. However, the other parent must consider that if they are not available to personally care for the children, then they too need to provide this right to the other parent.

Conflict: If 2 parties do not get along, including a right of first refusal provision will require more communication and contact between the parents who cannot get along in the first place. In very contentious relationships, the harm that may come from the parties having more access to one another and therefore more opportunity for conflict, may outweigh a concern that a thirdparty will be caring for the child(ren) as opposed to the other parent.

Control: Often relationships end because one party is too controlling, possessive or is a narcissist. In these situations, having a right of first refusal can be used by that party to exert unnecessary control over the other parent. A right of first refusal provision in this situation can be dangerous. For example, if the problematic parent knows that the other parent is very concerned that he/she will leave the child with his/her new girlfriend/boyfriend, they may offer the right of first refusal in a situation when he/she knows the other parent is not available. This then may cause conflict and anxiety in the parent that cannot accept the right of first refusal in that instance.

Third party – Childcare provider: When my clients are considering a right of first refusal provision in their custody agreement, I try to understand what the true concern is. Sometimes it is genuinely that that parent wants as much time with their children as possible and is conceding a parenting time schedule that is less than what they want (i.e. 50/50 schedule as opposed to a more traditional alternating weekend / mid-week dinner visits). If they accept all offers of a right of first refusal, they have more time. Other times, clients are considering a right of first refusal provision out of fear that the children will be left with a certain individual. In that instance, I try to help my client come to a resolution on his/her own as to whether that concern is legitimate or emotionally driven. For example, not wanting your children to be left with the new boyfriend / girlfriend or new spouse may just be an emotional feeling of betrayal (in affair situations) or loss of control, as opposed to a concern that the child(ren) are not being cared for properly. However, concern for that same person who is nasty to the child(ren) or has an addiction issue is a more valid concern. In that instance, conversation, negotiation and sometimes litigation is warranted to instead provide a provision in the custody agreement that precludes the child from being left along with this particular person.

A right of first refusal provision can be tricky. If you are contemplating a provision such as this in your custody agreement and need advice, contact a member of Geffner Kersch to help you decide if this provision is right for you.

08/12/2024

HEADS OR TAILS: DIVIDING THE FAMILY PET UPON DIVORCE

Over the last several decades, the family pet has increasingly become the fabric of the family unit. As a result of the American movement towards providing animals with greater rights and protections, Matrimonial and Family law has also evolved. Rather than seeing Fido as a mere possession of the family, the Courtsnow treat this issue akin to deciding custody of children. Over the course of my career, I have negotiated the care, custody and control of family pets into many agreements. Provisions are made for the parties to share in food, medication and veterinary expenses after separation, including the division of time with the pet between the parties. Often, parties may agree that the dog goes along with the children for parenting time between the parties on the same schedule.

When the parties cannot agree, this issue will be decided by the Court. Decisions as to the division of the family pet are handled pursuant to the statute applied to property division. However, the Courts have recognized how emotionally important the family pet is to the family and that it cannot decide the rights between the parties by treating the pet as a mere possession. Accordingly, in 2021, the legislature enacted “the best interest” of a companion animal standard. A party seeking custody of the family pet will have to show factors like that party’s involvement with the family pet, or the other spouse’s lack of involvement; how the party was actively involved in the day-to-day life of the pet (feeding, walking, taking the pet to the veterinarian);who bore responsibilities for the costs of the pet; the quality of each party’s respective home environments; and the party’s caretaking abilities.

If you are about to embark upon the divorce process, it may be important to develop these factors with your lawyer, so that you are prepared ifthe custody of your family pet cannot be amicably resolved between you and your spouse.Furthermore, if you are entering into an agreement with your spouse, you may want to consider including provisions in your agreement relating to custody and costs of the family pet between you and your spouse.

If you believe that custody of your pet is applicable in your situation, and you are considering moving forward with the divorce process, contact a member of Geffner Kersch for an exploratory conversation of how to protect your custodial rights.

07/24/2024

THE IMPLICATIONS OF PRE-WEDDING DECISIONS UPON DIVORCE

Getting engaged and planning a wedding is one of the most exciting times in a person’s life. But, as with most important milestones, it comes with some anxiety thinking of issues that you may not have had to consider with your significant other before now. Recently, I published a blog post on whether entering into a prenuptial agreement might be appropriate in your situation. You may have decided that this agreement is not necessary. However, that does not mean that you don’t have to be mindful of how certain financial decisions that you and your fiancée make during the wedding planning process can impact your future. As we all recognize, weddings are sometimes not just about the couple, but also about both families, and they can be expensive!

The engagement ring is one of the most meaningful sentiments at the start of your upcoming nuptials. What if the engagement ring is a family heirloom that you are about to give to your partner when popping the question? In New York, if you pop the question, your partner says yes, but then the wedding falls through, then you get the ring back. However, if that commitment is made and you become married, that ring becomes the separate property of the recipient partner, meaning you may not be entitled to get it back upon divorce.

As you plan your wedding, the expenses of pre-marital celebrations, the wedding itself, and the honeymoon can quickly surmount. This, all together with contemplating the expense of purchasing your first home together, can be overwhelming. Sometimes, the families offer to help defray these costs. One side might offer to contribute to the wedding while the other side may offer to contribute to the purchase of the home. It is important to understand that, under New York law, upon divorce the spouse whose family gave them funds to purchase the home might be entitled to a credit back upon divorce. This is not the same for the spouse whose family contributed to the wedding. To illustrate, Joe’s family writes a check to Joe for $50,000 to put as a down payment on a home that is going to be purchased by Joe and Alex after marriage. Alex’s parents agree to contribute $50,000 towards the wedding expenses. Both happened, and now, unfortunately, Joe and Alex decide to get divorced. In this situation, Joe can make a claim for the return of the $50,000 received off-the-top of the sales proceeds on the house before the couple splits the remaining funds. Alex may not have a similar claim to receive the money contributed towards the wedding returned.

Getting married is a blissful time in one’s life. However, it is important not to shy away from the fact that there is a significant level of financial entanglement that occurs along with the responsibility of knowing the impact decisions made during the process may have upon divorce. Even if you do not believe a prenuptial agreement is an idea you need to consider, that does not mean that you should not seek the advice of an attorney when making financial decisions during the wedding process to have a general understanding of the financial implications in the unlikely event of a divorce.

If you believe a consultation in anticipation of marriage may be appropriate in your situation, contact a member of Geffner Kersch for a consultation.

07/01/2024

DO I NEED A PRENUPTIAL AGREEMENT?

While approaching your soon-to-be spouse with the idea that you would like a prenuptial agreement is a sensitive topic, for many individuals it is a necessary part of the pre-wedding planning process. It is best to discuss a prenuptial agreement as early as possible when embarking upon marriage with your partner. This may be discussed before engagement so there is a level of transparency once the next step is taken. Certainly, shortly after the engagement, the desire to have this legal document drafted prior to the nuptials should be expressedto avoid any undue pressure as the wedding date approaches.

Before exploring whether a prenuptial agreement is right for you, you should be aware of the following basic divorce law principles. First, assets acquired prior to marriage are, by definition, separate property. However, depending upon the nature of the asset, the asset, or a portion thereof, could be considered marital property at the time of a divorce. Second, assets acquired during the marriage, with only a few exceptions, are considered marital assets to be divided upon divorce.

The following are a few reasons why you might consider entering into a prenuptial agreement prior to marriage:

You own a business. Even if you own a business prior to marriage, the efforts you make during the marriage towards its growth can make the appreciation in value marital. That appreciation can be distributed upon divorce. A prenuptial agreement will be able to protect the possibility that your business is valued during divorce, and that there is a potential payout of value to your spouse.

Your family has established, and may continue to establish trusts for your benefit, and/or you may come into a large inheritance. Inheritances and gifts from third parties are considered separate property even if acquired during the marriage. However, depending upon how you handle receiving and investing the asset(s) during the marriage, there is the potential for exposure. Having a prenuptial agreement will allow for the identification of certain assets and make clear their separate nature even if certain acts are taken during the marriage.

You have children from a prior marriage. A prenuptial agreement can not only address what happens between the parties upon divorce, but also upon death. You can make sure to retain certain assets upon divorce that you intend to preserve for your children. In addition, in New York, there are certain laws that protect spouses upon the death of the other spouse even if that spouse is not provided for in the deceased spouse’s will. A prenuptial agreement can provide for a waiver of these laws so that the deceased spouse’s will can control the distribution of his/her estate upon death to ensure that the children receive what they are intended to receive.

You have acquired assets prior to your marriage.Although assets acquired prior to your marriage are separate property, a prenuptial agreement will provide clarity of what assets are premarital and shall remain separate in the event of a divorce. Furthermore, a prenuptial agreement can address the sale of any such premarital asset and subsequent purchase of a new asset(s) with the proceeds from the sale of the separate property asset. Of importance is if the premarital asset is a residence that you will be residing in with your spouse. A prenuptial agreement will ensure that the asset is not converted into a marital asset based upon actions taken during the marriage.

If you believe that a prenuptial agreement may be appropriate in your situation, contact a member of Geffner Kersch for an exploratory conversation of your specific needs.

06/19/2024

Common Misconceptions Regarding Support Arrears:
You have a child support obligation (“payor”) and now a violation petition, with the threat of jail time, is filed against you by the other parent (“recipient”). How can this be? This is a scenario we see in our firmoften. Sometimes the payor parent is simply unable to pay, but in our practice, we have experienced other reasons why a parent might be unaware of his/her exposure to support arrears and a violation of a court order of child support.We hope to clarify some of the misconceptions regarding a payor’s child support obligation here.

I paid my child money directly: If you have a child support order, giving your childmoney directly does not count towards your obligation to the recipient parent. We see this sometimes for children who are of a mature age where a payor parent will provide the childwith money directly and believe that this is satisfying the obligation to support the child.However, while providing a child with funds directly may take certain burdens off the recipient parent,if you are under a court order to pay the other parent, then direct compliance is necessary to avoid being in violation of the court order. If a violation petition is filed against you, you will have to show direct payments to the recipient parent to prove your compliance and avoid a money judgment being issued against you, and even being held in contempt of court.
I paid expenses directly on behalf of my child: This is similar to the last scenario where the payor parent may pay for the child’s car lease, car insurance or other needs of that child directly. Again, while this is taking the burden off the recipient parent, a Court is not going to count these payments towards your direct child support obligation, unless your Stipulation and/or Court Order specifically allows you to pay certain expenses in lieu of a direct payment to the other parent.
I paid a direct expense for the recipient parent in lieu of direct child support: On a few occasions the payor parent, instead of paying child support may pay, for example, the other parent’s rent, or even permit the other parent to live rent free in their home. While this is again a benefit to the recipientparent and child, the Court will not count this towards a direct child support obligation, absent a Stipulation and Orderbetween the parties agreeing that certain payments to the recipient parent will be off set against the child support obligation. If this is an arrangement that you are considering, it is important to seek legal counsel to draft a legal document to protect your rights.
I paid the recipient parent in cash, and I do not have a receipt: This is a very tricky situation. If the recipient parent is denying receipt of the cash payment, and the payor parent does not have proof of the cash payment via a signed receipt fromthe recipient parent, the payor parent will be unable to provehis/her cash child support payments. We always advise our clients that, wherever possible, child support should be paid by check, direct deposit or other documented means to avoid the manipulation of the facts by the recipient parent.
The recipient parent agreed to reduce my support: Oftenparties will speak and make an informal agreement to modify or reduce child support for one reason or another. However, if that agreement is not placed in writing, and any underlying Order or Judgment is not modified as well, that agreement, generally, will not be upheld and the original Support Order/Judgment will be enforced, and continue to accrue arrears. This is because the Order was not legally modified. If this scenario applies to you, it is best to hire legal counsel to draft and file the necessary legal documentation to protect your rights.

If you are not sure how to proceed with your child support obligation, do not guess. Contact a member of Geffner Kersch for guidance to ensure that you are not blindsided years later, when the other parent files a violation petition for non-compliance with support. The outstanding arrears will add up quickly and can be in excess of tens of thousands of dollars by the time a violation petition is filed.

06/13/2024

Summer is almost here! Everyone is talking about school ending, summer camp and long-awaited summer vacations. You can almost see the Fourth of July celebrations if you close your eyes. All the summer excitement leads to many common questions from clients which I will explore here.

Question 1: “Do I have to pay for camp” or “will my spouse still have to contribute to the cost of camp?”

Aside from basic child support, one child support add on expense is childcare. That means that aside from basic child support, both parties need to contribute to the cost of childcareif needed in connection with the residential, custodial parent’s employment, or employment training, which is paid proportionate to each party’s respective incomes. If applicable, camp is used as a form of summer childcare, then most likely, the parties will be obligated to contribute their respective shares of the cost of camp. However, if the parties previously sent the children to an expensive summer camp or sleep away camp, that does not necessarily mean that the Courts, upon divorce, will direct the parties to pay for their children to attend that same camp. Reasonableness must be applied. Sleepaway camp, for example, which may have been the past practice of the parties, is far more expensive than day camp. Clearly, if childcare is applicable, they do not necessarily need childcare overnight, and as such, the Court may not force the parties to pay for sleep away camp.

If summer camp is not needed for childcare (e.g. the custodial parent is not employed, training to be employed, or does not work over the summer), then an obligation to pay for summer camp may not be imposed, unless agreed upon by the parties. In this case, summary camp may be seen as an extracurricular activity which is not a statutory child support add on.

Question 2: “If my child goes to sleepaway away camp, do I still have to pay child support?”

The answer is yes. Just because a child is at sleep away camp does not mean that basic child support is suspended. One basis for this is that the custodial parent will still have to maintain housing for the child even though he/she is at sleep away camp and will still have to purchase summer clothing and pay other expenses on behalf of the child/children.

Question 3: “Do we split the summer parenting time equally?”

Unless agreed upon by the parties, typically, the Courts award both parties up to two (2) weeksover the summer. Depending upon the age of the child and the positions of the parties will determine if those weeks should be consecutive, or non-consecutive. However, this is not a blanket rule, and the courts may apply discretion in dividing the months, or weeks equally.

Question 4: “Does July 4th alternate, or fall within a summer vacation week if selected?”

Typically, July 4th will be alternated. This is typically a separately delineated holiday like Christmas, Easter, and Thanksgiving Day. Therefore, if each party is entitled to two (2) weeks of summer vacation over the summer, unless it is your year to celebrate July 4th with the child / children, you cannot select a week that includes July 4th if the other parent is scheduled to celebrate this holiday with the child/children this year.

Question 5: “Can my ex-spouse permit our child to operate a boat this summer without my consent?”

If the parties have joint legal custody, meaning that they must consult and agree upon all major decisions concerning the child / children, then it can be argued that consent must be provided for the other party to permit their child to operate a boat as it can be considered a major decision. The age at which a child can operate a boat, car, motorcycle or other vehicle can be considered a major decision. If one party has sole legal custody, meaning he/she does not have to obtain consent from the other party, then that party can unilaterally make this decision. However, this may always be challenged by the other parent if the decision is not safe for the child/children.

Conclusion:

Summer is truly a magical time of year, but presents many questions, the above of which are not all encompassing. Keep in mind that each party’s Stipulation of Settlement and Judgment of Divorce or other Order relating to custody and parenting time can be different. The abovegeneral answers to common summer related questions can vary depending upon the terms of that party’s Stipulation, Judgment or Order, which are controlling.

If you have a question about how to proceed with a topic for the summer, a member of Geffner Kersch will be able to guide you in the right direction.

05/13/2024

Parallel Parenting:

When co-parenting is not possible, what do you do? You parallel parent. With parallel parenting, minimal interaction and a tight, structured parenting time schedule is a must. In addition, there must be an agreement that clearly defines how the parents must notify one another, exchange information and otherwise co-exist. These parameters enable parents to exercise separate and distinct, but meaningful time with the child or children without the interference of the other parent.

When parallel parenting, communication must be limited and facilitated in a safe and secure setting. One way to do so is by written means so that there is dispute regarding what was said. In New York Courts, an application (“app”) called Our Family Wizard is often implemented. Through this app, a parent cannot lie about when a message is sent and read, and how often the app is accessed. This takes away the possibility of lying and manipulation by a parent claiming that a message was sent when it was not, or that the message was altered, deleted or modified (like may be the case with a text message or e-mail). In our day in age, through artificial intelligence, the possibility of alteration of evidence and written, or even recorded verbal communication is possible.

Along those same lines, depending upon the acrimony of the parties, or if there is mental illness, past domestic violence or other controlling and manipulative behavior, absent an emergency, written communication may be limited to once per day or a few times per week. This forces the parties to think about the topics that they want to convey to the other party and lump them together which limits the other parent from feeling overwhelmed or harassed. Written content should be fact based without any nasty words or tone involved.

There needs to be a clear parenting time schedule with as little interaction as possible. This can be achieved through pick-ups and drop-offs at school, camp or the like as opposed to an exchange between the parties. Since parents who need to parallel parent do not communicate the best, it is encouraged that they stick to the parenting time schedule put in place, and that alterations or trades to the schedule are limited since this will likely cause discord between the parents.

To further limit communication between parents that are practicing parallel parenting, it is advisable that each parent receive information directly from school, extracurricular activities and the like to limit the amount of information each parent needs to share with the other. These days, most schools and extracurricular activities use apps or portals like Power School, Remind, Class Dojo, Infinite Campus or Team Snap to share information. Each parent can independently register for these alerts to ensure timely and accurate information regarding their child or children.

Lastly, when drafting a Stipulation of Settlement, clear and defined rules must be implemented to ensure neither parent can use a loop hole to cause problems for the other. For example, as it relates to the selection of summer vacation weeks, a date by which each parent must select said week or weeks should be included. Similarly, if a parent wants to vacation with the children, the other parent must be provided an itinerary with flight information, lodging and the like at least a week in advance. In some cases, it is necessary to set forth that a failure to timely provide notice will constitute a waiver of said vacation time.

Parallel parenting with your ex-spouse may be difficult. However, with the right approach and tight draftsmanship from counsel in a Stipulation of Settlement, it can be manageable.

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