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Orders of protection can be issued by either the Family Court or the Supreme Court as part of a child custody case or divorce in New York. My previous blog articles concerning orders of protection in family law matters focused on the most common method that orders of protection cases occur against family members, outside of criminal prosecutions, which is called a Family Offense proceeding.  Later in this article I will discuss some of the differences between the orders of protection in custody cases from Family Offense petitions.  First, though, I will outline the order of protection authority given to the courts in child custody cases pursuant to the New York Family Court Act (for family court cases) and the New York Domestic Relations Law (for Supreme Court matters like divorces).

On good cause, the Family Court Act authorizes temporary orders of protection to be issued as part of a custody case. The temporary order may stay in effect for as long as the case is pending.  Under the law, the length of time any temporary order of protection is in effect does not need to be a consideration on how long a final order of protection should be in force.  A final order, or permanent order of protection, can be issued as part of a divorce or custody case to help with or as a condition of the judgment of divorce or custody order.  As the standard is in all child custody matters, whether or not the order of protection is proper would be controlled by the children’s best interests.

The order can require a party to the case to obey certain conditions of behavior like to: stay away from the children or parent; refrain from activities that put a child’s welfare at risk; take an educational class; pay for treatment or medical care that stem from the reasons that require the order or protection; pay lawyer fees of the protected party; not injure a pet of the child or a parent; to give back identification of the other party like drivers licenses, passports, etc.; observe other conditions required to protect. The orders of protection contemplated in this article are between family members, in a custody case, as defined in the law.  Family under the law includes spouses, former spouses, household members, and people that have a child together among other specific situations.  The law also allows the court to give the protected party authority to terminate a lease under the Real Property Law. Continue reading ›

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I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the order that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense. Continue reading ›

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In a word, yes, drug tests can be ordered, but they do not have unfettered discretion to order tests at their whim. The cases in New York have held that when the physical and mental state of a parent is in question the New York Civil Practice Law and Rules can support a test request. Case law helps to outline situations where getting drug tests in custody and family law cases are allowed and not.

The court required hospitals to produce medical records of a mother pertaining to her treatment for alcohol and drug dependency in DeBlasio v. DeBlasio, 187 A.D.2d 551 (2nd Dept. 1992). In that case the records were sought from three different hospitals that were not themselves parties to the case. The reasoning cited by the court for the production was that the mother’s interests in confidentiality were outweighed by the need of protecting the children’s well being.

In the case of Burgel v. Burgel, 141 A.D.2d 215 (2nd Dept. 1988), the court ordered a mother to go to a doctor’s office to give hair samples for drug testing. In this case the father, in a divorce, alleged that the mother was using cocaine. The mother admitted past use but claimed she was currently clean. The court held that in a custody dispute the mental and physical conditions of the parents were at issue and the information was relevant to determine parental fitness and whether the mother was being honest about her current use. The past use of drugs and the children’s best interest were stressed by the court as justifying the test. Continue reading ›

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When calculating income for child support or temporary maintenance (alimony), according to the New York Domestic Relations Law and the Family Court Act, the Court may, if the court believes it is appropriate, add in or “impute” income to people. The statutes outline some enumerated items to be considered for imputing income and mentions that other resources can be additionally considered. Assets that are not producing income is one of these enumerated resources. Fringe benefits and “perks” that someone receives as part of their job like for food, housing, cars, memberships, and other benefits, if they are for personal use or if they result in a financial benefit to the party, are mentioned in the statutes as things that can be imputed as income by a court. Funds, services, or benefits received by friends or family can be added in as income for child support or a maintenance calculation under the law.

If a court concludes that someone has diminished their income or assets to try to get around a child support or a “pendente lite” (Latin for while the case is pending) maintenance obligation, a court can impute income for the party’s previous income or resources. This might be, for example, if the court believes someone voluntarily left their jobs, were fired for cause, or chooses not to work full time or at all. Besides past earnings, a court can consider their education and ability to earn. Whether or not the party is diligently applying for employment commensurate with their background, experience, and abilities may be a factor in determining income. A support magistrate or judge can look at what people with comparable educations and backgrounds earn to impute income.

There is of course another side to these cases. The person or lawyer arguing against income being imputed to their client can show that the loss of employment or income was due to no fault of their own like for medical reasons, the economy, or downsizing. If that person proves that the circumstances were out of her or his control, and they have been making diligent attempts to get replacement employment or income, albeit unsuccessfully, then they might convince the court that income should not be added in. Relevant questions might be “Where did you apply for jobs? Who did you talk to? What interviews did you go on? How often would you make applications each week? Did you receive any offers” – and so on.   Ultimately, a court needs to weigh each side’s presentation for or against the imputation of income. Continue reading ›

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Temporary orders of protection are issued by the Family Court (or the Supreme Court in divorce cases) and can last as long as a Family Offense case is pending in the court. Final orders of protection are those that are issued at the end of the case. Family Offense petitions are the method by which order of protection cases are initiated in the New York Family Courts. If the filed petition makes out the elements of a “Family Offense”, the court will issue a temporary order. This initial order is based on the one sided presentation by the applicant and requires the other side, or respondent to observe certain behaviors to protect the alleged victim. The respondent will have a right to contest the petition. Each county has different procedures on the length of the temporary order of protection which I have seen in my practice as a New York City, Suffolk County and Nassau County Order of Protection Lawyer.

For example, some courts make the temporary order for only the length of time until the next court appearance.   Usually the temporary order will then be continued again until the next court appearance if the case remains pending. Other venues issue the temporary order to last for six months or a different time period. This does not mean that the order will definitively stay in place for six months or the other time period as court appearances will most likely be scheduled for sooner time periods than the order is set to expire. If the case is still not resolved before the order expires then, usually, the court will extend the temporary order while the case is still unresolved. Some courts will extend or continue the orders automatically, however, others will only do so upon a request. Therefore, it is important for a party or better yet, their lawyer to pay attention to when an order is set to expire so appropriate requests can be made to the court to extend it or arguments be made against the order continuing or being extended.

The common ways to resolve a Family Offense petition is by an agreement for an order of protection without an admission; withdrawal of the petition; dismissal of the petition before or after a trial; or the finding that a family offense petition has been committed and an order of protection put into place. The order of protection that is made at the end of a case becomes a permanent order of protection. It does not mean an order of protection that will be in place forever, rather it is permanent as it remains in place for a length of time after the case is over in contrast to a temporary order of protection. Continue reading ›

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For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, expensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading ›

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Claims of parental alienation in child custody, matrimonial and family law cases abound. This article will focus upon parental alienation in the context of child custody and parenting time or visitation cases.  I have previously written about constructive emancipation which is applicable to child support cases.  The ultimate sanction, if parental alienation has risen to a point that the relationship between one parent and a child is irreparable, is to have the child declared constructively emancipated and to terminate child support.  This is the remedy for children of employable age.  For children of less than employable age there is case authority that stands for the proposition that child support should be suspended until visitation with the non-custodial parent resumes.  Please see my earlier blog article which discusses constructive emancipation in detail.

It is important to point out that certain actions that would be characterized as alienation, if they were taken for no reason, might be held by a court to be justified under certain circumstances. For example, protecting a child from abuse, be it physical or mental, can be found to be a proper justification for limiting contact.  What constitutes and does not constitute parental alienation is a judicial determination that is shaped by the presentation of facts through testimony and argument.  Something for both sides to keep in mind is that baseless allegations of abuse can be a reason for a court to find that the accuser puts their interests above the children.  Specifically, though, what is parental alienation?

Parental alienation has been described by psychologists as behavior, whether intended or unconscious, by one parent that poisons the child or children against the other parent. When such poisoning occurs, the children take on mischaracterizations or embellish misrepresentations that a parent teaches them about the other parent.  Interfering with another parent’s visitation or parenting time is one form of alienating behavior.  Continue reading ›

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Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of documents must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading ›

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Marital property is broadly defined, in the New York Domestic Relations Law, as all property obtained after the date of the marriage and prior to the signing of a separation agreement or the filing of a matrimonial case, without regard to the form that title is held, unless a proper agreement provides differently.  Separate property is excepted from inclusion in marital property under the law.  Separate property means:  property acquired prior to the date of marriage or property received by one spouse by inheritance or gift from someone besides their spouse; personal injury compensation; property received for or the increase in the separate property value, except any portion that is partly as a result of the efforts or contributions of the spouse; or property that is identified as separate pursuant to a properly made written agreement.  As a New York City area and Long Island Divorce Lawyer, what is marital and separate property is something that I constantly need to sort out.

To be a proper enforceable agreement that defines marital and separate property, the agreement could have been made before or after the marriage.  Agreements before the marriage are pre-nuptial agreements and those after the marriage are called post-nuptial agreements.  Stipulations of settlement of a divorce or separation proceeding can also resolve what should be categorized as separate property or marital property and would be a form of a post-nuptial agreement.  These agreements need to be written, and subscribed, acknowledged or “proven” in the manner necessary for a deed to be accepted for recording.  An acknowledgment is usually a simple paragraph, signed before a notary, affirming that the agreement:   was signed by that person; that they read it; and that it was made knowingly, intelligently, freely and voluntarily.

The law provides that a pre-nuptial agreement can be acknowledged before someone that is allowed, by law, to marry people. Besides defining marital and separate property, New York Domestic Relations Law Section 236(B)(3) outlines that the agreement can have (1) a contract to include a provision in a will or to waive the right to elect against a will; (2) the amount and duration of maintenance (alimony) or other terms or provisions of the marriage as long as they are in line with the New York General Obligations Law and the agreement is fair and reasonable when the agreement was made and not unconscionable at the time of a divorce judgment; and (3) custody, child support, care and education of a child subject to Domestic Relations Law Section 240. Continue reading ›

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Out of court statements offered for the truth of the matter asserted are hearsay under the evidence rules and are not admissible at a trial or hearing, unless they fall under a hearsay exception. This blog is intended to help give an understanding about the applicability of the hearsay rules that I have run into most often in my practice as a New York City area and Long Island Family Law Lawyer. As a practical matter, what this means, is that generally things that people that are not a part of the case say out of court is not admissible.

One important hearsay exception, which originally was made for abuse and neglect cases, is for children’s statements about abuse or neglect are admissible. This hearsay exception is found in Family Court Act 1046(a)(vi). The statement(s) alone are not enough for a finding of abuse or neglect without being corroborated. Case law has expanded this statutory hearsay exception to apply to custody cases.  To be admissible in a custody case, however, the law requires that these children’s statements about abuse and neglect be corroborated. The statements may be corroborated by other evidence which has a tendency to support the reliability of the statement. Repetition of the statement alone would not constitute corroboration, however pictures and testimony about bruises qualifies. Cobane v. Cobane, 57 A.D. 3d 1320, (3d Dept. 2008). Corroboration is defined broadly but must meet a threshold of reliability.

Party admissions are probably one of the most common hearsay exceptions found in matrimonial and family law cases. Generally this is used when witnesses testify about what they heard or read the other party to the case say out of court. Often times, statements made by the person testifying about what they said out of court are allowed in, particularly when they are about a conversation with the opposite party to the case, although they might not technically qualify as party admissions which is the hearsay exception. Unless the statement is harmful to the party that allegedly said it, usually it would not qualify as an admission. Another reason that statements might be allowed to come in is if they are not “offered to prove the truth of the matter asserted”, but rather to simply show that the statement was made. For example, if someone testifies that she told me “it was raining yesterday” is offered to prove it was raining, then the statement is “offered for the truth of the matter asserted”. If, on the other hand, it is being used to show that the woman was able to speak, in that example it would not be “offered for the truth of the matter asserted.” Continue reading ›

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