HoganWillig

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Adoptions

Author: Amanda Kelly


February 14th, 2014

Making the decision to adopt a child begins a wonderful and exciting time for a family.  Though undoubtedly worthwhile, the required legal procedure can be complex and lengthy, so we are here to help ensure as smooth a process as possible.

The basic steps involved in the adoption process include, at first, choosing an agency, submitting an application to adopt in New York State, completing a home study, and attending training sessions sponsored by the agency.  Once the family has been approved, a mutual process to find and place the child begins.  The family and the agency arrange visits with the child, and the family then completes a period of at least three months of supervision.  If the child is eligible, the family can apply for adoption subsidies.  It is only once these necessary steps are completed that the adoption can be finalized in court.

Adoptive parents generally retain an attorney for the completion of the adoption process.  Here at HoganWillig, we have attorneys who specialize in adoptions and would be happy to help make this exciting time as smooth and pleasant as possible.  If your family is thinking about adoption and would like more information, please call Amanda Kelly at (716) 636-7600.

Prenups on the Rise



November 22nd, 2013

A recent survey shows that more couples are opting to secure prenuptial agreements; 63% of matrimonial lawyers surveyed reported an increase in the number of prenups over the last three years.  Whether this is a result of people getting married older, having more wealth going into a marriage, or general concern for the protection of assets, a common trend among growing prenups is the desire to protect real estate.  This is evident in the survey results, which show that the most common coverage areas within prenuptial agreements are:

  • Protection of separate property
  • Alimony/ spousal maintenance
  • Division of property
  • Protection of the increase of value in separate property
  • Inheritance rights
  • Community property division

Having a prenuptial agreement essentially allows for decision making about the ownership of property and other assets; otherwise, state law ultimately dictates what happens in the event of a divorce.  Though still relatively rare, the numbers do reflect that the number of couples opting for prenuptial agreements is on the rise, especially pertaining to property.

If you have concerns about prenuptial agreements, or any other marital or real estate related questions, please feel free to contact Hogan Willig at 716.636.7600.

Family Justice Center

Author: Robin Friedman


November 11th, 2013

This past Saturday, I had the privilege of attending the opening of the northtowns satellite branch of the Family Justice Center.  The Center helps domestic violence victims finds the resources that they need to move on with their lives. Over 4,000 domestic violence arrests were made in Erie County last year with many cases unreported because victims did not know where to go for help.  The FJC is a one stop for all necessary services.  Patty Stroman Walker shared her personal story to the audience Saturday and the role the FJC played in helping her and her children. Please contact the Center at 558-7233 for any additional information.

Divorce and Your House

Author: Steven Wiseman


April 22nd, 2013

For many divorcing persons one of their most important assets, oftentimes the most significant one, is their house. Significant not only financially, but frequently emotionally as well.

When I first meet with a client about a divorce, one of the questions I am almost always asked is what is going to happen with my house? As with many questions in divorce, the answer is complicated and depends on many factors.

One possibility is that a party may be granted what is known as exclusive use and occupancy for a specified period of time. This usually occurs when the parties have children under the age of 18. Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale. In actual practice this occurs more frequently where the children are in their teens than when they are younger. At the conclusion of the specified period the house is usually sold.

The person having such exclusive occupancy is generally also entirely responsible for paying all of the carrying costs of the house, such as mortgage, taxes, and utilities, and for keeping it maintained. So while exclusive use may seem the way to go, you need to ask yourself if you will be able to afford it given your own income and what amount of child and spousal support you may receive.

If exclusive use and occupancy is not indicated or economically practical, frequently one spouse will want to buy out the other spouse’s interest in the house, either in exchange for other assets or for cash. This requires an agreement as to the value of the house or obtaining an appraisal. Affordability is again frequently a problem. Your spouse will justifiably want you to refinance the existing mortgage into your own name, which is not as easily done today as it was just a few years ago. And usually you have to refinance for more than the existing mortgage to raise the funds to pay your spouse his or her share of the home’s equity, so now you’ve taken on the existing expenses of the house and even more debt than there was before! Or if you’ve traded other assets to pay same, you may have left yourself financially vulnerable in other regards.

Last, the house can be sold and the proceeds divided. This is what a court will usually order if exclusive use is not awarded to one of the parties and they cannot otherwise agree on what should be done with the house. Even where parties agree without a court order to sell, any number of matters have to be discussed and agreed upon such as choice of realtor, sale price, payment of expenses pending sale, and how the proceeds are to be used, such as paying debt, and then divided.

I’ve touched on only a few of the issues and considerations involved in making a decision about what happens to a house in a divorce. The experienced family law attorneys at HoganWillig can provide you with informed guidance as to both the applicable law and in assessing your financial outlook going forward in order to help you make the smartest and most beneficial decision.

Understanding The Role Of Attorney For Child



February 19th, 2013

In New York State, the Family Court and Supreme Court may appoint an Attorney for the Child (“AFC”), to represent the interests of the child/ren in contested custody and/or access proceedings, as well as in neglect and abuse proceedings, juvenile delinquency proceedings and persons in need of supervision (PINS) proceedings. Formerly referred to as Law Guardians, the role of the AFC has evolved over time to the point where the attorney is no longer an adjunct of the Court whose function is to articulate what is best for the child but a zealous advocate, fighting for the child’s position.

Depending on which Court appoints the AFC and depending on the amount of the combined incomes of the parties, the legal services charged by the AFC in his/her representation of the child may be subsidized by the state or allocated between the parties. The Court will determine in advance how the costs of the AFC will be paid, after reviewing the individual circumstances of each case.

An integral part of the duties of the AFC is to consult with his/her client and advise the client in accordance with his/her capacities and with consideration for the child’s circumstances. Most importantly, if a child is capable of knowing, voluntary and considered judgment, the AFC should be directed by the wishes of the child, even if the AFC believes that what the child wants is not in the child’s best interests. The attorney should fully explain the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

When the AFC is convinced either that the child lacks capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the AFC would be justified in advocating a position that is contrary to the child’s wishes.

Most litigants in a contested custody or access proceeding mistakenly believe that the AFC is impartial, but nothing could be farther from the truth. The AFC is subject to the same ethical requirements applicable to all lawyers, including but not limited to constraints on ex parte communication, disclosure of client confidences and attorney work product; conflicts of interest and becoming a witness in the litigation.

Ultimately, as set forth above, the AFC is to advance the child’s position and no other, although it may and usually does correlate with one of the party’s position. A zealous advocate can do that without betraying the child’s confidences, unless given permission by him or her. If you are a litigant in a contested proceeding, it is important to remember that the communication between the child and his/her AFC is confidential. A litigant/party in a proceeding should never inquire of the child what he or she has told his/her attorney. Nor should the litigant/party expect to be informed of what led the child to his decision.

In figuring out the child’s position, the AFC must minimally consult with the child. Even an infant incapable of speech, let alone, knowing and intelligent communication regarding his/her position is a source of information that the AFC cannot overlook. Quite simply, the AFC has the ability to observe first-hand the cognitive abilities of the child, the level of caretaking of the parent or other litigant accompanying the child to the meeting with the AFC, the physical health of the child and, equally as importantly, the bond or lack thereof between the child and litigant.

In any contested custody/access proceeding or a neglect/abuse proceeding, the AFC will inquire of a litigant or his attorney, whether the AFC may speak to him/her outside of the presence of his/her counsel. No negative inference is made when the litigant requests the presence of his/her attorney. The purpose of the discussion is merely to ascertain the litigant’s position – why he or she seeks or opposes the relief being requested of the Court, and ascertain what information offered by the litigant is useful to the child’s position.

Most importantly, while the AFC is appointed by the Court, (parties cannot hire an AFC), he or she has no more power or influence with the Court than any of the attorneys for the parents/litigants. They, too, must prove their case on behalf of their client at trial. They are expected to call witnesses supportive of their client’s position and cross-examine witnesses called to testify by the parents/litigants. They must be no less knowledgeable of the case law and statutes supportive of or in opposition to their client’s position, than their adversaries.

Courts favor the AFC being reappointed in subsequent proceedings involving the child, if the AFC is available and willing to accept the appointment and continue his/her representation. Quite simply, the Courts recognize the value of continuity of representation as well as the fact that the child may have established a trust and confidence in the ability of his/her attorney in the prior proceeding that enables easier disclosure between the child and his attorney in subsequent matters.

The foregoing premise goes hand in hand with another tenet held by the Court – that is, absent outright neglect of the case or improper/unethical conduct by an AFC, he or she cannot be removed from his/her role to represent the interests of the child. The fact that the AFC disagrees with the position of a litigant and appears to side with a party whose agenda is similar, if not the same, as the child’s is not a sufficient reason to remove the AFC from his/her role.

Ultimately, it is important for any litigant in a contested custody/access/neglect/abuse proceeding to make the child available to his/her AFC upon request and to not interfere with the AFC’s representation of the child.

Custodial Parents and Relocation: Not as Easy As Get Up and Go



November 12th, 2012

Many parents are under the misunderstanding that if they are the custodial parent of a child they can relocate at will and merely have to file documentation alerting the court and other parent of their decision. This is entirely incorrect. A custodial parent cannot relocate with a minor child without written consent from the other parent or a court order. Even in situations where the custodial parent has sole legal custody of the child, he or she must petition a court of competent jurisdiction prior to relocating with the child. The custodial parent should file a petition as soon as possible, as it may take months to schedule a trial date and the Court will be very reluctant to allow the parent to move on a temporary basis in the meantime. In the event a custodial parent relocates without written consent or court order, the other parent may file a motion for the immediate return of the child (with or without the custodial parent).

Understanding CPS & Family Court Neglect Proceedings



August 14th, 2012

Getting a knock on the door from a CPS caseworker or receiving a “notification letter” in the mail that you’ve been named as a subject in a report of suspected child abuse or maltreatment is a scary experience. Clients who find themselves in that situation usually have many questions: What is a CPS report? Can CPS take my children? What happens when a neglect petition is filed in Family Court? What are my rights?

This post covers some of the basics, to help explain what a CPS report is and isn’t, how and under what circumstances a CPS report may lead to a Family Court filing, and what you should know in the event you find yourself on the receiving end of a CPS report or neglect petition.

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We Practice Law for Your Peace of Mind