Articles Posted in Family Law

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.

U.S. MapCustody 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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PolyamoryLaws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

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A family offense petition, or order of protection, can be filed in New York on the behalf of a child when a parent Order-of-Protection-Picturesuspects, or has evidence of an act of abuse or neglect initiated by another family member. To act within a child’s best interests, the New York courts must consider who should be permitted to file a family offense petition on the behalf of that child. The court inherently recognizes that a parent will always have the standing to commence a proceeding of family offense on the behalf of his or her child, under New York Family Court Act Article 8. However, grandparents and other individuals who share the same family home do not always have the same rights.

When dealing with cases that ask the court to re-consider issues of child custody and visitation, it’s important to remember that, in an effort to act in the best interests of the child, the court will not make changes to pre-existing custody orders unless there is evidence of a substantial change in circumstances that requires a need to look at whether modification is in the best interests of the child. As such, when it comes to family offense petitions made on the behalf of the child, the court must also be equally stringent about who it believes to be an appropriate individual to launch a complaint on the behalf of that child.

Usually, only a parent of the child, as recognized by the law, will be able to act on the behalf of that child when presenting an issue in court. For instance, in a case entitled Hitchcock v. Kilts, 772 N.Y.S.2d 386 (N.Y. App. Div. 3d Dep’t 2004), the family court awarded sole custody of two children to the mother during the divorce, but gave the father visitation rights. During the visitation, the oldest child told his father that his mother had slapped him, dragged him by the hair, and poured Tabasco sauce into his mouth. Those allegations led the father to file a family offense petition which was heard by the court because the father was recognized as an appropriate person to act on the behalf of the child. Though a temporary order awarded custody to the father for a short time, the order was reversed and the original order was reinstated after evidence from both parties had been presented. Continue reading

The first thing to understand about divorce – is that no matter how you go about it, you’re probably going to face Happy-Couplesome emotional complexities and other personal difficulties. Divorces are a difficult process – after all, most couples enter a divorce after years of trying to make it work with their spouse, and find themselves suddenly considering the prospect of single life all over again. It can be extremely difficult to regain your confidence, find financial stability, and make sure that you’re ready for the change in lifestyle that lies ahead, but that doesn’t mean that everything about divorce is negative. As I often tell my clients – it’s up to you to decide when your marriage is over. If you simply can’t be happy in the relationship that you’re in – for any reason, then divorce may well be the answer.  My last blog article discussed some of the negative, as well as positive aspects of divorce and separation.  This article will focus on the up sides.

After you receive those final divorce papers, it’s easy to find yourself mourning the loss of your relationship, but it’s also important to focus on the positives that could come your way now that you’ve removed yourself from a potentially toxic situation.

Divorce Could Make You Happier

I often find that it can be difficult for some clients to believe that they may enjoy a happier life after their divorce is over, but I frequently see ex-spouses moving on to live more peaceful, fulfilling lives once their divorce is settled. Though the initial feelings that you experience during the onset of a divorce may center around a fear of the unknown, that anxiety and sadness will in most instances eventually get better. Continue reading

In the world of divorce and family law issues, there are many different types of dispute resolution available, from BusinessManAloneclassic negotiations, collaborative law, litigation, and of course – mediation. When a couple opts for mediation as a way of settling their divorce concerns outside of the courtroom, they generally come together as two opposing parties with one neutral party in the middle – the mediator. However, some people perform the mediation process differently – offering their clients the opportunity of “caucusing”.  In caucus-style mediation, the mediator provides separate meetings for both parties involved in the divorce – while the other party is absent. Some professionals use this method once or twice during the mediation to help resolve significant issues, whereas others maintain the caucus format throughout the full mediation, shuttling backwards and forwards between clients.

For the most part, I have not employed caucus mediation (although in next week’s blog I will discuss times when mediation by caucus might be a good idea), but I do believe it can have some utility to handle certain situations which can arise with mediating couples.  This week’s blog will outline the reasons I initially approach a divorce mediation without the thought we will have separate caucus sessions to work through the issues that need to be settled in a legal separation or divorce mediation.     In my mediation sessions, I explain that everything is done with reference to both parties, both parents, or both the husband and wife – together. This helps the people I work with to see me for what I am – a neutral party within their dispute resolution that is there to help them iron out an agreement which can be used to make a binding legal contract.  In most instances (we can mediate issues other than just divorce, such as custody, support, etc.) that contract is a settlement agreement that can allow them to get an uncontested divorce either right away or at some future date.  While there may be instances wherein caucusing is the right move (something I’ll address in my next blog), I am wary to employ the caucus approach at least initially.

Caucusing Can Raise Issues

Perhaps the most significant problem with caucusing is that it removes the intimacy from the negotiation technique. Rather than allowing for both of the parties to be directly involved in the resolution of their various arguments and concerns, the mediator is forced to run back and forth conveying offers and suggestions. There’s no room here to discuss matters thoroughly and examine the different opportunities for negotiation – which means that by the end of the mediation, one or both spouses might leave with questions. At the same time, the caucus method of mediation can shift the position of the mediator so that he or she no longer appears to be neutral within the case. When all of the conversation with the other side of the divorce takes place out of sight of the other client, most clients can begin to feel as though the mediator and ex-spouse are plotting behind their back. Even if this isn’t true, it’s worth noting that divorce and family law issues are emotional and can prompt feelings of paranoia and anger. Continue reading

childBoth parents are expected to support their children in New York. Generally, however, a non-custodial parent pays support to a child through the custodial parent. Many feel that child support is predicated on the idea that children should have the same lifestyle after a divorce as they had beforehand, which, as people transition from one household to two, is not always exactly possible.  Child support, however, is not only applicable to divorcing parents.

When a non-custodial parent doesn’t pay court-ordered child support, there are numerous ways for the custodial parent or Support Collection Unit to enforce payments. If a parent is delinquent and owes back child support, that parent is considered to be in arrears. Unpaid arrears, that are reduced to judgment, accumulate interest even if you are paying child support currently.

For support orders entered after August 8, 1987, the Support Collection Unit or the other parent can require a delinquent parent to pay off arrears for 20 years from the date of default, regardless of whether that amount was reduced to a judgment.  When arrears are reduced to a judgment, that judgment then is good for twenty years. The statute of limitations to enforce arrears for orders entered before that date is six years.  Generally, child support obligations terminate automatically when a minor turns 21 years old, although there are instances when they continue, such as by agreement to pay beyond the age of 21 and payments of arrears can continue until the arrears are satisfied, but subject to the above statute of limitations.

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childChild custody and time-sharing arrangements in New York are determined based on the children’s best interests. In some cases, a forensic evaluation is ordered. This may include general and specialized psychological testing and clinical interviews of the parents and children. In some cases, collateral information is also gathered, and home visits are made.

Forensic evaluations are not always necessary, but they may be appropriate in cases in which there are sharp factual disputes that affect the final determination of where a child will live and which kind of custody, parenting time or visitation arrangement is in the child’s best interest. Generally, the court will look at the circumstances of the parents and child and see whether there are particular issues that would warrant an in-depth inquiry. The court is supposed to order forensic evaluations sua sponte (on its own motion), even if neither party expressly requests it. The evaluator is typically appointed based on recommendations.

Issues that might necessitate a forensic evaluation may include relocation issues, a parent or a child’s emotional problems, allegations of alcohol abuse, or facts that indicate a custodial parent might undermine the relationship between a child and the other non-custodial parent. In Matter of Shanika M. v. Stephanie G., for example, Stephanie was the aunt of a child that her domestic partner, Shanika, and she were taking care of but never formally adopted. The parties separated when the child was two years old, and the child continued to live with Stephanie.

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light-in-church-1492287-e1473464226908In New York, an antenuptial agreement that goes into effect once the parties are married may be valid even if the minister that solemnized the marriage received his authority from an unconventional religion. In Oswald v. Oswald, the court considered the effect of a antenuptial or prenuptial agreement after a marriage ceremony performed by a Universal Life Church minister. The parties had executed the agreement three days before the ceremony, but its terms only took effect after the “solemnization of the marriage.”

The plaintiff sued five years after the marriage asking the court to declare the marriage void from the beginning and the antenuptial agreement unenforceable because the person performing the ceremony did not have legal authority to solemnize the marriage. Alternatively, he wanted a divorce. The defendant responded by denying the marriage was invalid and counterclaiming for a divorce. The parties both moved for summary judgment.

The lower court granted the plaintiff’s motion. The defendant appealed, arguing that the plaintiff should not be allowed to argue the marriage was void because he represented otherwise on their joint tax returns. The court agreed that a litigant could be prevented from taking a position contrary to the position taken for purposes of filing taxes. However, it explained that a marriage that is void couldn’t be retroactively validated because the party held themselves out as being married.

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mosqueUnder Islamic law, marriage itself is a civil contract, and both spouses must have the legal ability to make a contract to create an enforceable marriage. Traditional Muslim marriage contracts include a provision called mahr. The mahr is automatically a wife’s separate property under Islamic law, and it supposed to help the wife financially after the dissolution of a marriage and to discourage a husband from exercising the right to repudiate the marriage.

Before entering into a marriage contract, the parties customarily discuss the amount of mahr. However, it’s not “consideration” for the marriage, and the mahr isn’t a prenuptial agreement, according to Islamic attorneys and scholars. The actual giving of the gift is postponed to the dissolution of the marriage or the death of the husband. Within Islamic law, the mahr is considered a gift that a husband must give the wife once a marriage contract is concluded.

New York courts, however, have usually interpreted the mahr as a dowry or a prenuptial agreement, rather than a simple contract. If they are approached as a simple contract, mahr and other agreements before an Imam are likely to be enforced. However, prenuptial agreements in New York must also be in writing and signed before the marriage. Although there is no obligation to make financial disclosures, if they are voluntarily made, they must be true.

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autumn leavesIn New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave.  If there is domestic violence, a court might have the child leave via a stay away order of protection.  If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.

However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.

In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.

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