Most New York child visitation cases involve courts establishing the rights and obligations of the parents as they relate to each other. However, New York family law does contemplate a situation in which a court can order visitation for a child’s grandparents under certain situations. This may even be the case when the custodial parents are against the establishment of such visitation rights.

Legal News GavelNew York Domestic Relations Law Section 72

As a general matter, section 72 of the New York Domestic Relations Law provides that visitation or custody rights may be appropriate for the grandparents of certain minor children. Subsection 1 deals with visitation rights. This subsection begins by discussing the procedure in a situation in which one or both of the child’s parents have died.

However, this subsection also allows for courts to award visitation to the grandparents even in situations in which one or both of the parents are alive, if the court determines that “equity would see fit to intervene.” This second scenario presents a more interesting situation in which the parents of a child are still alive, and at least one parent is against the issuance of visitation rights to the grandparents. Of course, as is often the case in New York family law matters, the court must also determine that grandparent visitation would be in the best interest of the child.

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In a recent post, we looked at the court’s power – and, in some cases, obligation – to order a DNA test in New York paternity proceedings. New York lawmakers have passed a similar, albeit slightly different, statute establishing when a court must order a DNA test in a New York child support case.

Legal News GavelGenetic testing can be a crucial part of a child support proceeding when one party disputes paternity. While the over-the-counter DNA testing that has recently become popular to determine an individual’s ethnic heritage has come under fire for its less-than-perfect accuracy, official DNA tests can often determine results with near certainty. That isn’t to say that state-administered tests always return an answer to a paternity question; however, when an answer is returned, the methodologies are such that courts are confident basing important legal decisions on the results.

Under Article 2 section 418 of the New York Consolidated Statutes, “[t]he court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to” DNA testing. When the language in the statute is broken down, the following is clear:

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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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Divorce or family law issues for unmarried people is a complicated time for any couple, but situations can become far more complex when children are added into the mix. Sophisticated-couple-fight-300x200Not only do New York divorce attorneys and the New York Supreme or Family Courts need to determine who should provide care for those children in terms of custody, but they must also decide whether and what child support should be given from a non-custodial parent. If child support is awarded, then the New York Courts may use a range of factors to determine exactly how much should be given. The decision comes from a careful consideration of both the payor’s income, the custodial parent’s income, the child support guideline’s and reasons to deviate from the guidelines.

Before a payor’s income can be used to calculate child support payments, certain deductions may be applied to the total earning potential of the individual. The New York Child Support Standards Act provides a formula based on percentage of income, to determine exactly how much support should be paid. Deviations from the guideline amount of support can be argued or negotiated by family law attorneys or divorce lawyers. The Child Support Standards Act indicates that there are numerous things that can be deducted from a person’s income before the formula is applied, including:

  • Maintenance/ alimony to be paid to the current spouse
  • Maintenance/ alimony paid to a previous spouse
  • Child support paid pursuant to a written agreement or court order for a child for whom the parent already has a duty of care.
  • Supplemental security income
  • Public assistance payments
  • New York City earnings or income taxes paid
  • Federal insurance contributions act taxes paid
  • Unreimbursed employee business expenses

This blog will briefly discuss, what are unreimbursed business employee expenses? Continue reading

New York is an equitable distribution state. Thus, when it comes to dividing up a couple’s assets in a New York divorce case, the court will consider a number of factors. However, before the court gets to the point of dividing up the assets, it needs to determine which assets are subject to the equitable distribution rules.

Legal News GavelOnly marital property is subject to equitable distribution. And as a general matter, property that is determined to be the “separate property” of one spouse will remain with that spouse. Courts use a common-sense approach when determining whether property is marital or separate property. Under New York Domestic Relations Law section 13-236, separate property includes property acquired before the marriage and property that was gifted to one spouse by someone other than the other spouse.

In addition, “property acquired in exchange for [separate property] or the increase in value of separate property” will be considered separate property unless the increase in value is due in part to the “contributions or efforts of the other spouse.” This last category of separate property is often the subject of much dispute. A landmark case decided by the New York Court of Appeals set forth the framework regarding how courts view these claims.

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When most people get married, they take into account their prospective spouse’s financial situation. Indeed, to some degree, it would be foolhardy not to take this information into account, given that in most cases a married couple acts as an economic partnership, sharing in both income and expenses. Indeed, New York courts take this reality into account when it comes to dividing up assets following a New York divorce proceeding.

Legal News GavelThe idea behind the economic partnership model of marriage is important to grasp when it comes to understanding how courts divide assets following a New York divorce. New York is an equitable distribution state, meaning that the court does not merely divide up all assets 50/50 and send the parties on their way. Instead, courts take into account a number of factors in determining how to divide a couple’s assets.

New York Domestic Relations Law Article 13 section 236 outlines the criteria courts use to equitably distribute assets after a divorce. In all, the statute lists 13 considerations, including the duration of the marriage, as well as the age, income, and education of the parties. Courts will also consider the sacrifices one spouse made for the benefit of the couple. In addition, courts are able to consider “any other factor which the court shall expressly find to be just and proper.”

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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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When a couple goes through a New York divorce proceeding, the court is tasked with dividing up the couple’s assets and liabilities. While this may seem intuitively simple, in practice, dividing up assets and liabilities that have accrued over the course of a relationship can be exceedingly complex. In New York, courts use a method called equitable distribution to do this.

Legal News GavelWhen a judge uses equitable division to divide up assets and liabilities, the judge takes into account many factors about the couple, including their roles in the marriage, level of education, income-earning potential, and future obligations. The judge will generally not include separate assets or liabilities that were obtained or taken on prior to the marriage.

Back in 2009, the New York Court of Appeals issued an important decision discussing how lower courts should equitably distribute certain assets and liabilities.

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At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, a court may rely on information that was not correct, or it may have made a determination without considering all of the relevant information.

Legal News GavelIn such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the court’s determination was based on a “mistake of fact.”

A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.

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