Rear view of young couple consulting financial advisor at office desk

The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00.  The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law.  If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.  Continue reading →

Fair Hearing when Challenging “Indicated Findings” by Child Protective Services or the

Middle aged advocate prosecution with juror and judge sitting in the background

Administration For Children’s Services (CPS and ACS)

No matter what the reason behind a hearing may be, one thing that all of my clients should have access to is a fair hearing if they want it. The right to a fair trial is fundamental to the rule of law, and it applies to civil and criminal cases alike. The right to a fair trial or hearing requires a fair public hearing within a reasonable time by an impartial tribunal established by the law. This blog will cover exactly how a fair hearing should go when it is for the purpose of challenging an “indicated” finding by Child Protective Services.

So, if the case has proceeded to the scheduling of a hearing, that means a caseworker has investigated the case and made an initial determination that the case was “founded” or “indicated”. This means that they believed there was some credible evidence to believe that the allegations involving child neglect or abuse occurred. It also means that the person that was “indicated” or who the case was “founded” against made a timely request to challenge the finding. An administrative review happened after the timely challenge and the review did not overturn the initial indicated finding. Therefore the fair hearing is now scheduled. Continue reading →

It’s important to recognize that step-parents are a common and familiar part of everyday life, and just likeHappy Family At Home 3 their partners, everyone may want to know their legal rights and responsibilities regarding their step-children. Over time, many step-parents who spend time with their step-children develop a strong attachment and commitment to those youngsters – taking responsibility for them on a moral and financial level. However, somewhat crucially, a step-parent doesn’t automatically receive standing in New York to ask a court for custody or parenting time rights if a mother and father are already legally established. Step-parents do not instantly receive the “parental authority”, including the rights, powers, duties, and responsibility of a biological mother or father, simply because they marry the child’s mother or father. Step parents do not gain parenting time and visitation rights except if they are legally appointed guardian, adopt or if there is a paternity finding for the step-parent.

Step-parents may be required to pay for child support, while married to the other parent of the child (ren) if the children involved are in danger of becoming “public charges”. Frequently, this information can act as an incentive to prompt parties into getting a divorced finalized, if other compelling reasons haven’t presented themselves. If the children are not in danger of becoming public charges, usually step-parents are not in danger of becoming obligated for child support of their spouse’s children, that is, unless they become a parent by the legal doctrine called equitable estoppel.

There is such a thing, as I have previously blogged about in connection with paternity, as “estoppel” parents.  Child custody and child support are appropriate topics to be dealt with for estoppel parents like biological parents.  Equitable estoppel can be applied by a court if a step-father (or non step-father) holds the child out to be his own regardless of the lack of a biological relationship. In these situations, the step-father, if there is not another person identified legally as the father, might be found by a court to be the father, regardless of what results a DNA test might have shown. As in many family law cases regarding children, findings to apply equitable estoppel given by the court must be found in the best interests of the children, or child. Equitable estoppel is not designed to allow for the enforcement of rights against someone that would otherwise lead to fraud or injustice. Equitable estoppel is a way for a parent to hold themselves out as the parent of a child, which can be regularly done by exercising parenting time, or providing support. To a degree, the estoppel doctrine prevents any step-parent from going back on a promise or changing a position that would harm the child.

If one party makes a motion for DNA testing, the law provides that the court should order genetic marker or DNA testing, unless the court determines, in writing, that the test would not be in the best interests of the child. This could be due to equitable estoppel, res-judicata (a Latin term meaning the issue has been judicially determined), or the presumption of legitimacy of a child born to a married woman. If any of the afore-mentioned circumstances were in place, the court would not permit the test. Estoppel may be raised by the step-parent who wishes to be identified as a parent, or against a person that no longer wants to be identified as a parent – and this can regularly come into play with step-parent situations.

Step-parents who are looking to be more involved in a child’s life from a legal perspective can apply for guardianship, so long as the appropriate parties consent to such an action. In New York, there is often not a great deal of distinction between a child’s guardian, and someone with custody, but in other States, the differences can be far more prominent. Often, when an individual is given “custody” over a child, the term is used to refer to that person’s status as parents (or grandparents in certain instances can petition for custody), whereas the title of “guardian” can be given to relatives of various different connections, from uncles and aunts, to grandparents, and even non-relatives. The term “guardianship” is used to refer to a person’s obligations to a child in taking care for them and looking after their best interests. According to the law of New York, any adult relatives, friends of the family, or even child protective agencies are able to petition for guardianship over a child, and children that are older than fourteen might even enter their own petitions for someone to be appointed as their guardian.

Because the way that custody and guardianship is defined in New York can differ to other States, I often recommend that my clients consider the possibility that they and their family may, in the future, move their home to a different state when deciding whether they should petition for custody or guardianship. It is important to think about the laws in different locations, and the fact that health insurance plans can often differ significantly when determining whether they require custody or guardianship.

Sometimes, it’s possible for testamentary guardianship to be given to individuals by parents of children through their wills. For example, it is possible to designate a “standby guardian” in cases where the current guardian or parent in question has a progressive fatal or chronic disease. In this situation, the standby guardian would be available to care for the child in future situations, in case of the event that the current custodian or guardian was incapacitated, or passed away. Step-parents can be considered for such a designation.

Today, step-parents are regarded as an important financial and emotional resource for children. In some cases, the court will even choose to place children with step-parents pursuant to a neglect case, however – it’s worth noting that placement through a neglect case doesn’t lead to permanent placement, and can be easily changed from one court appearance to the next. Step-parent adoption is a way that a spouse is able to gain complete parental rights within the state of New York, for their step children. This can be an important consideration for straight and gay couples alike. When a step-parent receives parental responsibility, they will have the same abilities to seek parental rights as a biological parent. Please see my other blog articles, and website pages for more information about adoption.

As always, if you would like to learn more about family law, the rights and responsibilities of step-parents, or any other legal matter, please see our other web pages and blog entries for information. Furthermore, feel free to call us about your initial consultation too – it would be our pleasure to speak with you about your needs.

The New Significant Other and Child SupportSmiling couple moving in a new house

Last week’s blog article was about child custody and the new boyfriend, girlfriend, husband or wife. Like with child custody, I frequently get inquiries and new cases about child support when there are new significant others. As always, people should keep in mind that there are different processes available to deal with child support, like other family law issues, such as mediation, litigation, negotiation, and collaborative law. Why is it that a new relationship might cause child support issues? Like with child custody, the reasons this happens with child support can vary and be complex ranging from emotional issues, such as jealousy, to what is actually supposed to be the focus of child support cases, financial matters.

From a legal standpoint, I think one of the more important reasons is that the gross income of the parent that has to pay child support (the non-residential custodial parent) is reduced before the guideline child support calculation is made, by support orders that are first in time or support that is actually being paid pursuant to a written agreement. The first in time support order could be for child support or alimony also known as maintenance. So, the need to address child support, when there is a new relationship, may simply boil down to a race to try to maximize finances. Continue reading →

The New Significant Other PhenomenaAmazing couple in love over the city background talking

When it comes to dealing with visitation time, parenting rights, child custody, and child support – there are a lot of sensitive and complicated issues to consider. One set of situations I deal with somewhat frequently as a family lawyer within Long Island and in and around the City, are those that arise when a biological parent of a child – with rights regarding that child – gets a new significant other, or partner be it a girlfriend, boyfriend, husband or wife.

It’s a fact that is both inevitable and uncomfortable at the same time – when you engage in a divorce or break up with your partner, the chances are that you will eventually have to deal with your ex-partner getting involved with a new romantic interest. Likewise, life will go on for you and you too will find love again. Although this may not impact people who don’t have a child with their ex, it’s obvious that concerns can arise when a divorced couple have custody, visitation rights, and child support matters to consider. These issues can be sorted out through mediation, litigation, negotiations, or collaborative law. Continue reading →

Why the Rutherford New York Custody Jurisdiction Decision Makes Sense

Kelly Rutherford at "As Seen In...Harper's Bazaar" presented by L'oreal Paris to Benefit the Ovarian Cancer Research Fund. Lindbrook Gallery, Westwood, CA. 12-08-05

Recently, well-known actress Kelly Rutherford was ordered by the New York County Supreme Court to return her children to their father in Monaco, where they had been living after the father lost his U.S. visa. Rutherford argued that she felt “lawfully” unable to remove her children from the United States so that they could live with their father in a foreign country. However, she complied with the order that was given by the judge, demanding that the children be reunited with their father and returned to Monaco. Under the facts of the case, the decision of the New York Court makes sense – despite the personal feelings expressed by Rutherford herself.

Uniform Child Custody Jurisdiction Enforcement Act

The case makes sense under the law since according to the Uniform Child Custody Jurisdiction Enforcement Act, New York would not have been considered to be the residential home state of the children in question. The facts suggest that instead the children were simply visiting the state, and their mother, after a California court issued custody to the father, Daniel Giersch, in 2012. If another country or state had not been given jurisdiction and the children were present in New York, then the New York Court may have been able to take up the case. However, as the case stood, New York simply did not have jurisdiction to allow Rutherford custody. Continue reading →

It is possible, under different scenarios, to discontinue a divorce, before it is finalized by the signing of the couple arguingjudgment. But how can it be done? The answer is found in the New York Civil Practice Law and Rules 3217 and corresponding case law that interprets it. What the law says is that for civil actions, in general (including divorces), an order is not required if no responsive pleading is served. But if no responsive pleading is required then it can be discontinued twenty days after the service of the original pleading. Otherwise a stipulation between the parties of discontinuance would need to be made or a court order for the same made.

So, what does this mean and how does this apply to divorces in New York? Divorces can be initiated by the filing of a document called a Summons with Notice (a complaint can be served with it in the beginning but often is not). Eventually a complaint needs to be drafted and served; however, sometimes this does not happen in a divorce for some time or even not until just prior to the submission of the judgment. If a complaint is not yet drafted and served, then the law seems clear that the initiating party can usually withdraw by their own accord. Less frequently, however courts have found, that the person waived the right to withdraw after lengthy proceedings and it would be inequitable, like in the case of Minkow v Metelka, (46 AD3d 864 [2d Dept. 2007]) where there were substantial court proceedings and the parties included a waiver of the right to discontinue at the Preliminary Conference despite not serving a complaint. If a complaint is served, and the defendant serves an answer, then the divorce can be withdrawn only by a stipulation signed by both parties or an order of the court. Continue reading →

High stress fight in office

Issues of conflict commonly arise when parties within a case find themselves intolerant of each other’s requests or opinions. When goals change, cracks can begin to form in relationships of any kind – from marriages, to parents and their children, colleagues in the workplace and more. When people think and act agreeably, there is an alignment that ensures dispute and conflict can often be avoided – however this is rarely the case in legal matters, particularly in regards to family law.

Unfortunately, the more conflict is allowed to grow, the more likely it is that such conflict will begin to cause serious problems – which can be a barrier to resolving a case and reaching an amicable settlement. The task of professional mediators, collaborative lawyers and negotiators is to utilize the right techniques in de-escalating conflict and resolving matrimonial and family law cases. Although this blog is mostly written with divorce mediation in mind, such techniques can also be useful in collaborative cases, and to a certain extent may have some impact on classic settlement negotiation or litigation. However, the adversarial model used within the court system often tends to escalate, rather than reduce conflict – leaving less room for resolution by agreement. Continue reading →

Egregious conduct affecting equitable distribution in divorce

Love triangle. Handsome man embrace his girlfriend while holding hands with another girl. isolated on white background.

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds. Continue reading →

Team of lawyers in the law library at the university

This blog article will discuss some, but certainly not all, of the features and reasons for or against having payments going through the New York Support Collection Unit. Any recipient of child support has the right to ask that the court order provide that the payments be made through the Support Collection Unit. Payments could initially be made by the payor sending payments to the Support Collection Unit in Albany, New York. As long as the payments are sent on a timely basis, in that case an income deduction order or income execution order might be avoided. One disadvantage to the custodial parent or payee of child support for payments going through the Support Collection Unit is that it takes longer for the payments to be received by that parent. The payments need to go through Albany, get processed, and then distributed.

The Support Collection Unit, however, will keep a clear record of payments received. In the event of a “violation” case, in court, a representative from the Support Collection Unit can be summoned to the court room to provide a statement and report of payments received and balances due, if any. A lot of non-custodial parents like this idea as well since it eliminates debate about what was paid or not. Something for everyone to keep in mind when payments are ordered through the Support Collection Unit is that payments made in some other fashion might not get credited as child support. For example, if someone gives a direct payment of cash there is a danger that the recipient would not acknowledge it or that it would be called a “gift” instead of child support. Usually the question is asked to the custodial parent whether there have been any direct child support payments, even though the payments should have been through the support collection unit, but paying in some other way can be dangerous territory. Continue reading →