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April 2011 Archives

Wait to Date

From a legal perspective, if you have children it is better to wait until your divorce is finalized before you begin dating again. Otherwise, you open yourself to potential allegations of poor judgment in regard to the children's best interests. If you date, be extremely discreet. Keep the person away from your kids, and avoid overnight stays at his or her home, until the divorce judgment is signed and sealed. Many preliminary court orders prohibit parties from exposing the children to people who are romantic interests. Care and common sense should also be exercised after your divorce, since your ex-spouse can bring legal action for a change in custody arrangements if anything in your dating behavior is seen as being detrimental to your kids. 

At Least Three Years' Protection on an Eviction Plan, But Then You May Have to Move

If your apartment is rent-regulated and your landlord converts your building to a co-op or condo under an eviction plan, you have a three-year window of continued occupancy as a non-buyer. It begins on the date the NY State Department of Law approves the conversion. If your lease expires before then, the landlord is obligated to renew your lease for up to the three years. If your lease extends beyond this three-year time frame, it must be honored through its termination date.

Children can become wards of the state in an atmosphere of domestic violence

Courts in New York State see an environment of domestic violence as a clear and present danger to the well-being of children. If a court evaluator determines that abuse and conflict in the marital relationship is unremitting, it is possible for the court to remove custody of the children from both parents. That's true even for the parent who is the "victim," though less so now after new case law established by recent Federal litigation. Consequently, if your marriage is afflicted by abuse of any type, it is imperative to bring it to the attention of your lawyer so that steps can be taken not only to protect your kids and you from the abuse itself, but also so you won't lose them to Child Protective Services. The sooner you act, the better. 

Can the landlord rescind preferential rent? It depends

It used to be that if your landlord gave you a preferential rent, you could automatically count on future increases being based on that rate. In 2003, policy adjustments at the Division of Housing and Community Renewal (DHCR) changed that. Now, unless the preferential rent is for your whole "tenancy," which includes the period beyond the initial lease term, at renewal the landlord is allowed to raise the rent to the full legal rate. This means the rate it would have been, if you hadn't been offered the preferential rent to begin with. However, subsequent cases have interpreted these amendments to bar landlords from doing this, when tenants can prove that the intention was for their preferential rate to last for the entire tenancy. Usually, both sides argue about the lease's wording and the parties' intentions, ending up in court. In the future, if your initial lease includes a preferential rate, make sure it has specific language that validates its application to all future renewals. 

School Stability Arguments are Powerful and Persuasive

Courts hold that preserving a stable environment for children when parents break up is critical. A key element to consider in your custody strategy is keeping your kids in the same school. Let's say your spouse or partner proposes to move, and doing so would necessitate a change of schools. If by your having custody they can remain where they are, your attorney can argue that because relocation would disrupt your children's well-being and overall adjustment, you would be the better custodial parent. These arguments can be very convincing for maintaining or changing which of you has custody, especially in conjunction with other factors related to keeping stability intact. Similarly, if you want to relocate, the argument can be used against you. The judge will want to know: Why do you want to move? Will it benefit the children? If so, how? Carefully evaluate the answers to those questions with your lawyer. It may make the difference in whether you win the custody arrangement you seek or not. Staying put, or at least postponing your move, may be best. 

Combating Unscrupulous Landlord Maneuvers at Renewal Time

Landlords sometimes get cagey about renewing a lease. Let's say you signed your renewal lease and sent it to the landlord in a timely manner, with a check for any increase due. You haven't received a copy back with the landlord's signature. You now have several options available to you, depending on whether your lease is rent-regulated or not.

A Step-Parent Can Gain Custody

Even if you are not a biological parent, the Court can determine that you have in fact become the "psychological" parent. In certain circumstances, being identified as the psychological parent may be enough for a step-parent to gain custody. The Court will order a custody evaluation to determine what is in the best interests of the child. Many factors will be taken into consideration to determine who can provide the best overall care for the child. Among the most important of these elements are: who can offer the most stable home, give the physical care and emotional nurturing, and be most responsive to the child's educational development. A step-parent who is clearly a better choice than the biological mother or father can win custody. 

If You're Evicted, You Can Request Storage

In New York City, by law only a City Marshal or Sheriff can perform an actual eviction, based on a judgment and warrant the Court issues. The landlord has a choice of having the Marshal take "legal possession" of your apartment, or effecting a full eviction. Legal possession means changing the locks, full eviction means removing and storing your property. For full eviction, the City Marshal will usually hire a moving company to remove property from an apartment. If you get public assistance, you can receive up to five months' storage at public expense. If you're not receiving government benefits of this sort, you may have to pay the cost for storing your property. Under the law in NYC, the Marshal must inventory, tag, and store all items. Needless to say, there are few experiences in life more traumatic than being evicted from your home. This is why you if you are facing eviction, it is to your advantage to get the very best representation you can, even if you have to borrow the money for a Tenants' lawyer from a relative or friend.

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