NEW YORK CHILD CUSTODY - FALSE ALLEGATIONS

A case recently reported to me:

Matter of Fargasch v Alves 2014 NY Slip Op 02435 Decided on April 9, 2014 Appellate Division, Second Department

"The mother's unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court's determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child's best interests."

NEW YORK DIVORCE - BILL PROPOSED RE: SPOUSAL MAINTENANCE

See http://open.nysenate.gov/legislation/bill/S7266-2013

THE COST OF LITIGATION

Also from the website of Mark S. Gottlieb CPA, P.C. and sent by email on May 12:

The Road Ahead if You Decide to Sue

And what steps can be taken to avoid being sued?

FINANCIAL QUESTIONS RE: DIVORCE

From the website of Mark S. Gottlieb CPA, P.C. and sent by email on May 12:

Five Commonly Asked Financial Questions During Divorce

MEMORIAL DAY

My father Albert Probstein - Staff Sgt., WWII, fought in Okinawa - said the worst experience was the monsoon - blew his clothes off.

NEW YORK MORTGAGE FORECLOSURE - SETTLEMENT CONFERENCES

This is from a recent email from Nassau Suffolk Law Services:

"Coming in June: Judge Oversight in Foreclosure Settlement Conferences

by Michael Wigutow, Senior Staff Attorney Foreclosure Project

In August 2008, the New York State Legislature enacted a law that requires the court to "hold a mandatory conference within sixty days" after the plaintiff (bank) files the initial papers commencing a foreclosure action. The stated purpose for these conferences is to hold "settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents...to help the [borrower] avoid losing his or her home[.]" CPLR Rule 3408(a). Each party is required to send a representative to each settlement conference "fully authorized to dispose of the case." CPLR Rule 3408(b). "Both the plaintiff [bank] and defendant [homeowner] shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible." CPLR Rule 3408(f).

 Since 2009 there have been close to 200,000 foreclosure cases filed in New York State. See 2013 Report of the Chief Administrator of the Courts (available at https://www.nycourts.gov/publications/pdfs/2013ForeclosureReport.pdf) An incomplete assessment has calculated that almost 100,000 settlement conferences were held in 2013 alone. Id. Although we don't have statistics showing how many of these settlement conferences took place in Nassau and Suffolk Counties, their positions at the top for foreclosure filings since 2008 support an inference that they are at the top in number of settlement conferences held each year as well.

Each of the 62 New York counties established their own procedures for settlement conferences. Nassau and Suffolk both use court referees, not judges, to conduct these proceedings. Borrowers and their advocates attend these conferences intent on seeking alternatives to foreclosure, primarily through loan modifications that would lower the monthly mortgage payment to make it more affordable for the homeowner whose default was based on a hardship such as loss of employment, death in the family or disability. However, only 1,378 out of 91,522 conferences held between October 2012 and October 2013 resulted in settlements discontinuing foreclosure actions. See 2013 Report of the Chief Administrator of the Courts. There are many reasons for this woefully deficient number of settlements coming out of the settlement conference process. From homeowners' perspective, advocates around New York State share similar stories: banks do not send representatives authorized to negotiate settlements and don't provide information necessary for meaningful settlement discussions. And court referees simply lack the authority to issue meaningful penalties for this abuse of the settlement conference law.

In direct response to a survey and report conducted and prepared by legal service advocates in New York City, the New York State Office of Court Administration is requiring courts in Brooklyn, Queens, Nassau and Suffolk to have a judge oversee the settlement conferences starting sometime in June. It is hoped that OCA will require referees, who will continue to conduct the conferences, to prepare a report of what transpires at each conference. In this way, when homeowners and their advocates present their concerns about the bank's failure to negotiate in good faith to the judge overseeing the conference, they can do so swiftly and with the expectation that the judge will issue an appropriate penalty where failure to negotiate in good faith is established. Perhaps the most significant and available penalty would be the tolling of interest that will prohibit banks from adding on to the borrowers' debt. With the ready availability of a judge and the risk of penalty for non-compliance with the law in front of them, banks may well be more willing to negotiate in good faith to achieve a settlement that would allow homeowners to remain in their homes while making payments to satisfy their mortgage loan. "

FROM THE AMERICAN BAR ASSOCIATION & AARP - FAMILY SURVIVORS CHECKLIST

This is from an email from the ABA - it can be helpful and I pass it along :

Practical resource for dealing with family matters upon death.

Checklist for Family Survivors: A Guide to Practical and Legal Matters When Someone You Love Dies When someone you love dies, dealing with the personal and financial affairs - on top of the emotional trauma - can be overwhelming. With this first-of-its-kind manual from the ABA and AARP, you can take comfort in knowing that you can handle with ease the matters that arise upon your loved one's death. The personal record-keeping workbook, packaged with a CD-ROM, walks you through the process step-by-step. The ABA/AARP Checklist for Family Survivors covers these topics and more: Applying for survivors' benefits Paying outstanding bills and handling insurance Sorting through the stuff - physical and digital Writing the obituary and dealing with the funeral home Navigating the grief process and taking care of yourself While there are a number of books on matters of grief and financial planning, this is the first - from AARP and the American Bar Association's Senior Lawyers Division - comprehensive guide that answers questions for family survivors in one, straightforward book. http://shop.americanbar.org/eBus/Default.aspx?TabID=251&productId=215509&sc_cid=5460211-14D&sc_channel=email&sc_rec=&sc_cid=5460211-14D&sc_channel=email&sc_rec=

LATEST NUMBERS ON HOMES IN DANGER OF FORECLOSURE

The numbers with respect to homes valued less than the debt are staggering - nationwide 37% are "effectively" underwater with New York at 29.9%:

http://zillow.mediaroom.com/index.php?s=159&item=437

MORE "ADVICE" RE: DIVORCE

This story first appeared in the May 9 issue of The Hollywood Reporter
magazine:

Power Lawyers 2014: How to Divorce for Less Than $25 Million a Day (Guest Column)

FORECLOSURE/SANDY CLINIC AT NASSAU COUNTY BAR ASSOCIATION

I will be a volunteer lawyer at today's clinic - Monday, May 19th.

This is another Clinic for both Mortgage Foreclosure and Superstorm Sand and runs from 3-6pm. 

The Clinic is being held at the Nassau County Bar Association, 15th and West Streets Mineola, NY 11501

ADA ACCOMMODATIONS FROM DSS - FROM NSLA

This is from the Nassau Suffolk Law Services May 2014 LAW SERVICES NEWS: "How to Obtain ADA Accommodations from DSS for Clients by Ellen Krakow, Staff Attorney Many individuals who go to the Department of Social Services (DSS) for assistance have disabilities. Sometimes their disabilities prevent the client from doing things DSS requires of them. This can cause application to be denied or essential benefits to be reduced or even terminated. The American with Disabilities Act (the ADA) offers im-portant protections for individuals with disabilities that are designed to prevent such harmful outcomes. What does the ADA protect? The ADA protects people with physical, mental or cognitive impairments. These impairments may be the result of a wide array of conditions, such as heart disease, arthritis, diabetes, brain injuries, MS, post-traumatic stress disorder, depression, alcoholism, past use of illicit drugs, as well as many others. The disability must “substantially limit a major life activity.” Major life activities are walking, standing, bending, speaking, manual tasks, seeing, breathing, eating, sleeping, learning, reading, thinking, and concentrating. A person does not need to be receiving SSI or SSD to be covered by the ADA. What must DSS do for clients with a disability? If a DSS caseworker knows or suspects the client has a disability that will make it difficult to comply with a DSS rule or request, the caseworker must (1) note the disability in the client’s file so that others at DSS (and DOL in Suffolk County) are similarly aware of the disability, (2) offer the client a reasonable accommodation, even if the client has not requested it or even disclosed their disability, (3) grant a reasonable accommodation request if the cli-ent expressly asked for it, and (4) note in the file the specific accommodation given (or offered the client but not ac-cepted.) 06-ADM– 05 What are some examples of DSS reasonable accommodations? The exact type of reasonable accommodation DSS must provide depends upon the client’s particular limita-tions and needs. Here are some examples: •extra time to complete forms, or assistance from DSS in obtaining documents •having all notices sent to a designated person and/or having designee come to DSS in client’s place •phone-call reminders of upcoming appointments, •combining DSS and DOL appointments, •meetings by phone rather than at the DSS center, •home visits by a DSS caseworker if the client is homebound or if they care for someone who is, •supports at a work activity or pre-work assignment training, •placement at an emergency housing facility with handicapped accessibility, or a facility close to the client’s treatment provider •sign-language interpreters or other communication services for the hearing impaired, •written material in large font or Braille. Whenever possible, the client should submit written documentation of the disability when requesting the accommo-dation. This is especially true if the disability is not apparent, such as a mental health condition. Most helpful are letters from treating physician stating the client’s diagnosis and particular limitations. What can be done if DSS denies the reasonable accommodation request? Should DSS reject the ADA request, the client (or advocate) should submit a written grievance to the DSS ADA Compliance Officer, who will do an investigation, issue findings, and correct the caseworker’s action if he/she concludes the request should have been granted. In Suffolk County, grievances should be sent to John Nieves, ADA Compliance Officer, Suffolk County DSS - Commissioner’s Office, 3085 Veterans Memorial Hwy., Ronkonkoma, NY 11779, (631) 854-9983, fax # (631) 854-9996. In Nassau County, grievances should be sent to Ellen Abber-bock, ADA Compliance Officer, Nassau County DSS, 60 Charles Lindbergh Blvd., Uniondale, NY 11553, (516) 227-7779. If the grievance is not resolved in the client’s favor or is not resolved timely, advocates should im-mediately contact our Legal Support Center for Advocates at (631) 232-2400. Examples of advocate letters requesting reasonable accommodations are on our website, www.nslawservices.org, under the Self-Help and Legal Info tab."

AGE DISCRIMINATION IN THE WORKPLACE

Job Ageism and Labor Law Disputes in the Workplace - AARP

CHILDREN'S RIGHTS IN NEW YORK - GUEST BLOG

"Children's Rights in New York

The issue of children’s rights covers a broad spectrum of topics, each of which is important to address not only for the sake of these children, but for the future of stable communities. Physical and sexual abuse, discrimination and neglect are just some of the issues children frequently face. Many are struggling for a proper education, not to mention their need for food, clothing and shelter. Fortunately, there are several resources for information and help.  Among the agencies are government organizations and non-profits, which are always looking for help securing these children’s futures. Here is a list of just some of the resources available to help bolster children’s rights:

Legal

·        The Cornell University Law School’s Legal Information Institute outlines the legal definition of children’s rights in great detail

·        The Kids Count data center offers straight up, hard numbers on issues addressing children today.

·        90% of all children involved in cases presented before the Family court in New York City are represented by The Juvenile Rights Practice. These cases range from abuse and neglect to parental rights, PINS (People In Need of Supervision) and juvenile delinquency programs. 

·        For information on child custody laws in New York, you can contact LawNY for topics ranging from custody definitions, joint custody rules and child support to paternity visitation rights. 

·        The Office of Temporary and Disability Assistance offers information and services concerning paternity establishment, which can be crucial in custody and child support cases.

·        The ACLU works diligently to protect the rights of abused and overlooked children both in the United States and abroad. The organization focuses on issues including the current Boy’s Prisons system, juvenile life without parole and death sentencing, child welfare institutions, and teaching. 

Services

·        The NYC Administration for Children’s Services is a staff of social workers and family specialists who address youth concerns among foster parents and the general public in cases related to the child welfare program.

·        Similarly, the New York State Office of Children and Family Services handles similar issues on a state-wide level, offering help in many areas including adult services, child care, prevention services, case management, reporting abuse and much more.

Educational Disparity

A number of studies have shown disparity in disciplinary practices administered in the educational system, with harsher penalties being distributed to minorities – including suspension, expulsion, and even arrest. Many of the offenses are minor and non-violent infractions.
This has led to a larger number of minority students who are not getting an education, as explained in this NY Times op-ed piece. 

The Obama Administration responded to this issue in 2014 with a 35–page document released by Secretary of Education, Arne Duncan and Attorney General Eric H. Holder. The document not only outlined an unfair bias aimed mainly at black and disabled students, but also outlined an alternative to the current Zero Policy approach.
The addition of police officers into the school atmosphere has led to a larger number of arrests. The administration advised using a softer approach including setting a more positive environment including guidance and addressing issues through guidance, before they become problems. Of course, additional costs and entrenched systems threaten to thwart progress in this area.

The Children’s Defense Fund is also actively investigating this issue with the Cradle to Prison Pipeline Program – which addresses the growing problem of poor and minority children and young adults caught in the penal system. 

The Advocates for Children of New York works to help end discriminatory practices against children that can lead to academic failure.  Programs target poor, disabled, minority and immigrant students, and those from non-English speaking backgrounds, as well as those involved in both the juvenile justice system and foster care.

Foundations

·        The Children’s Defense Fund is a nationally based non-profit organization that has been working for the benefit of children for more than 40 years. They have offices all across the country, including in New York. The group works diligently to lift children from poverty, abuse and neglect; as well as ensuring access to quality healthcare, quality education and creating a moral and spiritual foundation.

·        The Partnership for Children’s Rights is a non-profit, New York based law firm that focuses on helping disadvantaged children. The focus is mainly on helping with access to special education services and social security disabilities.

·        Children’s Rights is an organization based in New York City that focuses on the abuse and neglect of children caught up in the welfare system, including those that are just stuck and/or lost in the system unnecessarily. The group works to make broad improvements in the lives of abused and neglected children, with the goal of promoting every child’s right to a stable and safe home.

·        The Children’s Rights Council and CRC Kids work to promote stronger family bonds, encouraging  better child-rearing through strong support from both parents.

·        The New York Center for Children is a non-profit organization offering free services that are all child-friendly. They offer comprehensive evaluation and therapy services for the victims and family members suffering from abuse. Abuse prevention services are offered as well.
In addition to these services, extra benefits for the children include tutoring and mentoring services as well as extra-curricular activities.

·        The New York Center for Child Development is a nonprofit organization that focuses on the mental, social and academic growth for children. The group works with children from birth through age five, striving to identify and address developmental and mental health challenges.

Author Bio:

This is a guest post by Sarah Brooks from people search. She is a Houston based freelance writer and blogger. Questions and comments can be sent to brooks.sarah23 @ gmail.com."

 

 

 

 

 

 

 

 

ESTATE PLANNING WEBSITES

I found these sites from an AARP article and they may be of help but certainly should be used with help of an attorney:

https://www.everplans.com/

http://www.mydirectives.com/

http://bestendings.com/

Many times I have consulted with people who are disputing end of life plans of deceased relatives: these disputes are costly, time consuming and emotionally draining - perhaps some tranparency with relatives making end of life plans can prevent this.

CO-PARENTING IN DIVORCE

I heard of OurFamilyWizard before - it is a website which "provides a neutral zone for parent communication to help...manage the challenges of shared parenting with a former spouse or partner".

At a recent CLE, they were a sponsor and I received certain materials. To get an idea as to how contentious shared parenting can be, visit the website, view the program or click below to see a sample order language showing how courts can incorporate the use of the OurFamilyWizard website into a parenting/custody plan:

http://www.ourfamilywizard.com/ofw/index.cfm?LinkServID=C2F8F8B5-B889-3C6F-F3C51E3B219DA836&showMeta=0

NEW YORK DIVORCE - RESTRAINT OF PEN AND TONGUE

As noted in many recent web articles, litigating a divorce in the various "courts of public opinions", available online and off, may not be wise - here is the case reported in one article:

http://verdict.justia.com/2014/04/22/high-price-badmouthing-ones-spouse-divorce

NEW YORK MORTGAGE FORECLOSURE - AFFORDABLE HOUSING

This chart is from a web article on the subject titled "1 in 3 homes is unaffordable and a bubble is forming". Line 2 states that in New York,  41.8% of the homes are unaffordable by historic standards while the percentage of monthly income that needs to be devoted to median housing is 31.6% (not sure if that figure of mortgage payments also includes real estate taxes).

The full link to this article, which appeared last month, can be found here:

http://www.housingwire.com/articles/29553-in-3-homes-is-unaffordable-and-a-bubble-is-forming

WHY ARE LITIGATIONS SO COSTLY?

Maybe it is because of depositions like these:

http://www.abajournal.com/news/article/deposition_detour_on_meaning_of_photocopy_machine_is_immortalized_in_new_pe/

NEW YORK MORTGAGE FORECLOSURE - SETTLEMENT CONFERENCES

For Nassau and Suffolk, see:

NEWSDAY - New tool for speeding LI foreclosures: Judges

SPECIAL NEEDS PLANNING

The Nassau County Bar Association is holding a free seminar " Your Child with Special Needs Planning for Adulthood Important Legal & Financial Considerations" on Thursday May 29 at  6:30pm.

Limited seating call; 516 747-4070

JUDGMENTS ARE EASY, ENFORCEMENT IS HARD

Recent email received from Nassau Suffolk Law Services (link below) tells of their successful litigation against an adult home on a Sandy issue but notes:

"Even after the decision, the home failed to pay the judgment and it was not until a restraining order was placed on the defendant’s bank ac-counts that our client was paid."

See http://nslawservices.org/wp/wp-content/uploads/2014/04/aprilmay2014website-version.pdf 

NEW YORK CHILD CUSTODY - FORENSIC EVALUATION REPORTS

New York State Assembly Bill No. A08342 would provide uniform access to court-ordered forensic mental health evaluation reports and underlying data by litigants, counsel and the attorney for the child in child custody and visitation cases.

See: http://assembly.state.ny.us/leg/?default_fld=&bn=A08342&term=&Summary=Y&Memo=Y&Text=Y