Case Status Update: Custody/ Visitation/ Family Offense Case in Brooklyn Adjourned until April
Custody/ Visitation/ Family Offense Petition Case Adjourned until April: Last week, Attorney Shaffer represented a member of the U.S. Air Force, (hereinafter, Client "X"), in Brooklyn Family Court in response to a Petition to modify custody filed by his ex-wife. X and his ex-wife have been divorced since March 2010. X has been serving overseas since 2012. He is currently serving overseas at a Permanent Duty Station in South Korea.
X is the primary custodial parent of his and his ex-wife's 10-year-old son. X is remarried now, and he, his new wife and his son all live on the military base together. When X was divorced, he was stationed in Texas and his ex-wife was living in Florida. The divorce was entered by a Texas Court.
So what is the problem here? X's ex-wife was never happy with the court's decision to award primary custody of their son to X, rather than to her. In the past, X has tried different tactics to remove custody from X, including making unsubstantiated and baseless claims to Administration for Child's Services, (ACS), refusing to return the child after exercising her visitation rights, attempting pro se filings in various courts and even repeatedly calling X's boss and falsely claiming that he kidnapped the couple's son. Despite the fact that X has responded to every single false accusation successfully by simply producing the divorce decree, he has faced losing his job over the constant vexing phone calls from his ex. Kidnapping a child internationally is a very serious accusation, one that the U.S. military does not take lightly. Every time his ex-wife made this claim, the military was forced to remove X from his current duties and prove that he was not in violation of his divorce decree.
Skip to last summer when X first contacted us to help him stop his ex-wife from harassing him at work, who by that time started using fake names when calling the base to continue making accusations against X when his commanding officers recognized the name and stopped responding to her. The experienced matrimonial lawyers at The Shapiro Law Firm filed a Family Offense Petition against the ex-wife, instructing her to not to contact X at work, noting that she had an independent way to contact her son, as well as X, should she need to get in touch with X about the couple's son.
Now before we filed anything against X's ex-wife in the court, we had to make sure that our client was not violating his divorce decree in anyway. Since the divorce decree was from Texas, the language used in the order is not the same language used in New York orders. For example, the term "primary conservator" is used instead of "custodial parent." Some of the terms used in the Texas standard custody/visitation language can mean more than 1 thing in New York- a parent can exercise a "period of possession" when exercising visitation rights OR whenever the child is in that parent's "physical custody." In New York, however, the term possession is not used and only the non-custodial parent can have "visitation."
To make matters even more confusing, the Texas divorce decree appears to have conflicting provisions governing who is slated to act as the primary custodial parent when X is on certain military assignments. The order also states that X can choose the "primary residence of the child without regard to geographic location," which indicates that regardless of what X is doing and where he is, he can also decide where is son is going to live, even if that means outside of the United States and even if it is not with X.
The above-stated facts do not even begin to scratch the surface of the confusing issues at play in this case, but what is important here is that the divorce decree was not clear regarding key provisions governing who is entitled to have physical custody of the child at certain times. In addition, because X was sent overseas after the divorce decree was entered, the divorce decree fails to adequately address how mom would exercise her visitation rights in this situation, which for example, calls for weekend visits every other weekend (it did not help that mom stopped paying child support, which prevented her from being able to obtain a passport this whole time).
So what did we learn here? Before you sign your divorce settlement agreement, make sure that you understand exactly what it says. Your attorney should be more than happy to explain! Do you think that you can move your child anywhere in the world with out your ex-spouse's consent? Confirm that this is the case. Do you think that your ex-spouse is supposed to pay for all travel expenses in exercising his or her right to visitation? If you do not see it in your agreement, make sure you find out. Although we cannot anticipate every event that may occur in the future, it is worth taking the time to think about the future and ask your attorney how the decree will be enforced under those circumstances.
What next? Last week, we filed motions to dismiss the petitions to modify custody/visitation with court based on a lack of jurisdiction and a failure to state a claim (X's ex-wife failed to properly register the out-of-state divorce decree with the New York court and failed to serve the attachments referenced in the Petition on X). If the court denies the motion, X's ex-wife will have the burden of proving to the court that there has been a substantial change in circumstances that warrants the court to modify the original custody/ visitation order. With all of the information that we have on the case thus far, we are confident that X will win the case and continue to be the primary custodial parent of his son. We will also have a final order of protection entered against his ex-wife that will direct her from refraining from contacting X's employer or any of his co-workers.
(*please note that all identification information has been removed in order to protect our clients' privacy and in order to fully comply with attorney advertising rules and regulations*)