Family Law Midterm
Instructions: Please respond to each question in essay format. Each question highlights the week in which the subject matter was covered but please do not forget to include the subject matters (and themes) covered in week 2. Also, please include “practice points” wherever practical. Please read each question first before starting to answer. For each question, you should assume that you have told your client that he/she should consult a lawyer but you are giving advice learned from this class.
Each question is worth 25 pts.
We learned about the laws of child support in New York State. You have a client who is 21 years old who has been dating a woman who is also 21 years old. Your client tells you that his girlfriend is pregnant. The couple is not married and do not live together. Your client has mixed emotions regarding being a father. He is asking for your advice. Please advise on issues of: (a) acknowledging paternity (to include the consequences and benefits of being a parent); (b) the general framework of child support laws in New York State (to include your understanding of the child support percentages and how child support is determined); (c) he wants to know what happens to money above the statutory first consideration ($141K) and (d) is it possible for a child to be emancipated?
A child born into a family with unmarried parents has no legal father. In order to acknowledge paternity, an Acknowledgement of Paternity (AOP) document needs to be signed voluntarily by both parents. A birth certificate can only be generated once the AOP process is complete. Once an AOP is signed, the father may establish custody and visitation right as well establish the child’s right to inherit from him. By voluntarily acknowledging paternity and giving up the right to have a court proceeding, the signing of acknowledgment must precede a written explanation of their rights and the consequences of signing the voluntary acknowledgement. There is a 60-day grace period where acknowledgements may be revoked. Once the 60 days has passed, the acknowledgement is executed unless fraud or duress is later alleged. If the father decides not to sign an AOP, then the man will not have duty to support the child and his name cannot be on the birth certificate until a court determines paternity. If the court later determines the man to be the father of the child, then the court may make an order of support that can be retroactive to the child’s date of birth.
Once acknowledgement of paternity is issued, the father should file for an affiliation order. This is a court order that requires the father of an illegitimate child to make child support payments. The monetary amount of child support due is determined by three primary criteria. The first and most important aspect is the income that each of the birth parents earn. The second factor is the custodial responsibility. Lastly, the number of children in play is measured and considered. The more children that are present leads to more and more money due in terms of percentage of income. Since the couple in this scenario is only having one child, basic child support would be seventeen percent. The overall calculation to be completed is to take the aggregate income of both parents and taking that amount times seventeen percent. The answer is then divided by how much the custodial parent owes and how much the non-custodial parent owes. That amount is then divided by fifty-two (the number of weeks in a year) to determine the weekly amount. If the non-custodial parent has no income, then the order would be for the legal minimum. This amount would be $25 a week. If a parent of a child makes more than $142,000 a year, then child support is based on the child’s needs and lifestyle.
In the state of New York, child support payments will last until the child is 21 years of age or the child becomes legally emancipated. A child may be emancipated under one of the four conditions. These conditions would be if the child becomes married, enlists in the military, holds a full-time job and supports themselves or starts to actively and ongoingly disobey the “reasonable” commands of their parents.
CASE 2: We learned about Juvenile Delinquency laws in New York State. You are working with the Smith family, which consists of the parents (mother and father) and twin sons (both age 13). You receive a phone call from Mrs. Smith that one of her sons was arrested last night. Your client (Mrs. Smith) is riding the wave of emotions. She is shocked, angry, sad and in disbelief. She needs your help. Her son is set to meet with a lawyer next week but Mrs. Smith needs your help now. Please advise Mrs. Smith regarding your understanding of: (a) Juvenile Delinquency laws in New York State (talk about the age range for arrest and where cases are heard); (b) advise Mrs. Smith regarding any services/activities that could help her son’s case at this point (make sure to use practice points); (c) what critical background questions will you ask of the family to help them understand this stage of the case; (d) describe briefly what happens once the case is in Court and (e) explain what happens at the dispositional phase. Please offer an explanation for each option.
A juvenile delinquent is someone who commits an act that would be a “crime” if he or she were an adult and is then found to be in need of supervision, treatment or confinement. Juvenile delinquents can be arrested from the age of seven to sixteen. Juvenile delinquent cases are heard in family court with the exception of rape, murder, strangulation etc. Those more serious offenses are heard in criminal court. Within the Family Court Act (FCA), juveniles have the right to have their parents present in court.
The author of this response would advise Mrs. Smith to obtain legal advice and hire an attorney. If affording an attorney is an issue, then the court can have one appointed. It is very important to come to court prepared and with proper documentation. To better assist the family, the author of this response would need to have a better understanding of the relevant family history. The author would need to know if the child has committed any prior crimes otherwise had trouble in the past. There is almost always leniency with first offense crimes.
Once the case goes to court, the judge will review the information presented and he or she will decide how to best proceed based on the information presented. The author of this response would definitely advise Mrs. Smith to dress comfortably but also appropriately. The author would also advise Mrs. Smith that the involved process can be lengthy. The judge can either dismiss the case or deny authorization of the petition. He can refer the youth to counseling program to rehabilitate the child. He can place the case on a consent calendar or formal calendar. A case placed on a consent calendar is an informal process of court supervision. On the other hand, a case placed on the formal calendar allows for charges to move forward against the child. In family court, there is no jury. Instead, only a judge hears the details of the case and that judge then gives his or her ruling. If a child is found guilty, the child then enters a disposition phase. In family court, juveniles are never convicted. The family law system is all and only about rehabilitation.
When the child enters the dispositional phase, a probation officer is assigned to the child and he or she will conduct an in-depth interview with the child along his or her parents or guardians. During these interviews, a good amount of information is gathered to assess how to proceed next. After all the information is heard, recommendations are made which will then be considered at the dispositional hearing. At the dispositional hearing, the judge will rule on “sentencing” for the child. This sentencing will be based on what is best to rehabilitate the child.
Throughout this process, it is extremely important to document all assigned meeting and court dates and keep all copies of court documents. It is essential to keep records of all conversations had with anyone throughout this process such as attorney’s, court personal, probation offices and caseworkers. One should also request copies of all assessments and plans.
CASE 3: We learned about Child Protection laws for the State of New York. You are working with the Jones family. You get a phone call from Ms. Jones who informs you that she received a letter from ACS indicating that a report has been received regarding suspected child neglect/abuse. Ms. Jones is very upset. You know from working with the family that Ms. Jones is not married, has two children (Todd and Cassandra) and a…