Articles Posted in Family Law

tuition expensesIt is no secret that going through a New York divorce can be a difficult and trying time. However, it does not necessarily have to be. In some cases, in which a couple agrees that it is time to go their separate ways and can also agree to work together in negotiating the details of the divorce, it may be possible to complete a stipulation of settlement.

A stipulation of settlement is a document that is filed with a family court that includes all the terms of a New York divorce. A properly drafted New York stipulation of settlement includes all aspects of a New York divorce, including: property division, child custody and support, and future costs for the couple’s children, such as college tuition. Not only will the document cover these items, it should also outline what is important to each party, so in the event an unanticipated concern later arises the parties can refer to the document to resolve the issue.

In order to be a legally binding document, the stipulation must be written in a specific manner and contain certain language. Otherwise, points that a party thought were already negotiated and agreed upon may later turn out to be unanticipated impediments.

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In a previous post, we considered a situation in which the grandparents of a child or children sought visitation when the custodial parent was opposed to such visitation. This week, we consider a related, although slightly different situation in which the children themselves have expressed a desire for the court not to order grandparent visitation.

Legal News GavelAs was the case in the previous post, section 72 of the New York Domestic Relations Law and Section 651 of the Family Court Act govern court-ordered grandparent visitation. Under section 72, grandparents who can establish that “circumstances show that conditions exist which equity would see fit to intervene” may obtain visitation rights.

While the issue of grandparent visitation can be a complex one, it is governed by a simple principle; as is the case in most New York child custody and visitation matters, courts will do what is in the best interest of the children. Of course, the expressed desires of a child may come into play when determining what is in a child’s best interests, although that will not always be the case.

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Ever since the time that DNA testing has been recognized as a reliable method of determining paternity, family courts across the country have relied upon the testing to resolve disputes over paternity. Indeed, the New York Family Court Act discusses the availability of DNA testing for the purposes of establishing paternity in section 532.

Legal News GavelIn fact, section 532 requires family law judges or magistrates to advise all parties of their right to request DNA testing in paternity cases, instructing that the court “shall” order testing when any party requests it. That being said, the statute also prohibits DNA testing when the judge determines that testing is not in the best interest of the child based on certain enumerated reasons.

As noted above, parties have a right to a paternity test, and a test will be ordered if any party makes such a request. Additionally, the court can, on its own motion, order paternity testing even if neither party has requested it.

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In an earlier post, we discussed some of the issues that may arise when a sperm donor seeks to establish the parental rights of a child. One of those issues arises when a sperm donor seeks to establish parental rights. This is complicated by the fact that New York does not generally enforce contracts between sperm donors and the couples using the donor’s sperm on the basis that such contracts are against public policy.

Legal News GavelThis post follows up on that topic with a discussion of a recent case issued by a New York court, which acts as the most recent example of how courts treat the parental rights of sperm donors versus the woman (or family) who gives birth to the child.

The Facts of the Case

A same-sex lesbian couple arranged to have an acquaintance provide them with a sperm sample so that the couple could have a baby. Since the agreement did not go through a sperm bank or a licensed medical professional, the couple drew up their own contract without the assistance of legal advice. The contract waived the donor’s parental rights, as well as any rights to visitation. The contract also waived the couple’s right to seek child support from the donor.

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Child custody issues are often the most hotly contested area in divorce and family law cases. It would stand to reason, then, that New York child custody issues are not limited to situations in which the biological parents of the child are in a relationship – or even know each other.

Legal News GavelWith the advent of recent medical developments over the past few decades, couples who thought they may never be able to have children are able to give birth to a child through various means. Of course, this includes same-sex couples relying on donated sperm. However, with these recent developments, child custody issues have arisen, requiring New York courts to come up with ad hoc methods of resolving these child custody conflicts.

As a general matter, if someone goes through a doctor for the artificial insemination process, there is little to worry about in terms of the sperm donor later seeking custody of a child. Similarly, a sperm donor probably has little to worry about the parents seeking to enforce a paternity action. This is because the contract between the sperm donor and the business or organization accepting and storing the sperm provides for the termination of any parental rights the donor may otherwise have. Thus, to try to ensure that there will not be any problems in the future, parents who hope to conceive through artificial insemination are advised to use an official medical provider to do so.  However, it is possible that if somehow the anonymous donor was identified that the court might allow a paternity action to be maintained against him.  How that case would play out is not clear at this time under New York law.

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It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.

Legal News GavelNew York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”

An Example

Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.

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When going through the process of a divorce or family law dispute in New York, it’s important to make sure that you fully understand what your rights and responsibilities are as a client. TheMeeting-300x200 more you know, the more you can make an informed decision about your future. Therefore, a divorce lawyer will always provide his clients with a document known as the “Clients Rights and Responsibilities” form. The document is prescribed by the Appellate Division, and it’s provided at the initial conference, before any retainer agreements are signed.  I am attaching a link to the complete Statement of Clients Rights and Responsibilities here, while this blog is intended to highlight some of the features.

When I give my clients the “Clients Rights and Responsibilities” document, it’s intended to give that individual not only an insight into what they’re entitled to by law, but also what is expected from them. Of course, it’s always possible for my clients to come to me with any questions they might have about their rights or responsibilities, or the case that they will be addressing with me in the future. It’s well within the rights of any family law client to speak to their divorce attorney, child custody attorney or family lawyer if they have any concerns or questions about the manner in which their case is handled.  I endeavor to make myself available.  One of the rights people have is that an attorney never has the right to refuse your case based on creed, color, sex, orientation, origin, race, or disability. Continue reading

If you and your partner have been hoping to have a baby, then the potential new law in New York could be the answer. After all, there are plenty of reasons why a couple might be unable to Pregnant-Woman-300x200conceive a child on their own. Some people experience issues in conceiving, while same-sex partners are forced to seek out alternative options to the traditional method.  Adoption is often the answer.

For many, surrogacy can seem like the simplest way to create a family. However, the truth is that this process isn’t nearly as straightforward as it might seem. Not only is paying for surrogacy incredibly expensive, but the legal guidelines currently in place within New York mean that couples could be penalized for entering into a contract with a surrogate.  The article by Sheryl F. Colb in Verdict, Legal Analysis and Commentary from Justia on November 8, 2017 provides a thorough analysis of the topic.  This blog summarizes and in spots supplements the article

Understanding Surrogacy Law in New York

From a medical perspective, there are two types of surrogacy that can be considered by those searching for alternative methods of conception. Traditional surrogates are women who are inseminated with sperm to fertilize their own egg. This means that the resulting child is biologically related to the surrogate parent. On the other hand, “gestational” surrogates are implanted with an embryo that is created in a lab using the egg and sperm of the intended parents. In the case of a gestational surrogacy, the surrogate is not related to the child. Continue reading

When a couple splits up in a New York divorce, and the couple has children together, the court, or the divorce lawyers involved, must determine whether either of the parties is entitled to child support.  If the matter is handled in Family Court, in making this determination, the court looks at New York Family Court Act section 413, which outlines the considerations that must be taken into account when ordering child support. The exact formula is somewhat complicated, but essentially it looks at each parent’s income and the number of children involved.

Wedding RingsOnce a court makes a determination as to child support, that order will remain in effect unless one of the parties asks the court to reconsider the child support amount. Courts routinely make changes to child support orders based on either party’s changing circumstances. For example, if one of the parents loses a job, that parent may then petition the court to adjust the child support payments they are required to make. A question that often comes up in New York divorce cases is whether the income of a remarried parent’s new spouse can be used when calculating child support payments.

The general rule under New York law is that a step-parent has no obligation to support their step-children. However, there are ways that the income of a step-parent may be relevant to a child support determination. For example, assume parent A and parent B have two children and get divorced. Parent A has custody of the children, and Parent B is ordered to pay child support. Later, Parent B remarries. Normally, when it comes to determining Parent B’s child support obligation, Parent B’s new spouse’s income would not be considered. However, if Parent B has a child with the new spouse, the new spouse’s income may become relevant because the needs of the children that live with the non-custodial parent of the subject children of child support case  can be taken into account. According to the statute those children’s needs can be considered to deviate from the guideline amount of child support, but only if the resources available to support the children living with the non-custodial parent are less than the resources available to support the child or children that are the subject of the divorce or post judgement divorce or child support case.

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After a divorce is finalized, the former husband and wife will go their separate ways. When the former couple has children together, this may result in one of the parents leaving the state with the children. While the state overseeing the initial divorce proceeding generally issues an initial custody order, that order is subject to revision.

Legal News GavelCustody orders can be revised by either the state where the original proceeding occurred or, under some circumstances, by the state where the child resides. A common issue in New York family law cases is the state’s ability to enforce custody orders that were made by another state.

The Uniform Child Custody Jurisdiction and Enforcement Act

Lawmakers understand that situations like the ones discussed above are likely to arise, and as a result, they have developed a uniform act to streamline custody proceedings across state lines. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by 49 states, including New York, and provides guidelines as to which court has the power to issue binding custody determinations and modifications. It also allows for consistent enforcement of out-of-state custody determinations.

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