Articles Tagged with Evidence

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 ›

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 ›

Juvenile delinquency cases are handled in the New York Family Courts.  If a child is determined to be a juvenile delinquent, the court is there to issue an order that not only is designed protect the community, but is also there to consider the needs and best interest of the juvenile delinquent since he or she is a child.  Right away, the difference between adult criminal defendants and juvenile delinquents is apparent since the best needs of the juvenile delinquent are included as a proper consideration in the purpose of article 3 of the Family Court Act, the juvenile delinquent article.  I have found in my practice all around the New York City and surrounding areas as a criminal defense attorney and Long Island Family Law Lawyer that there are nuances in handling juvenile matters.

Juvenile Delinquents are children over seven and under sixteen that are found to have done an act, which if committed by an adult would be a crime.  The treatment is given either because the juvenile is to be considered not criminally responsible because of his or her infancy or the case was removed from a criminal court to the family court.  Generally, the same statutes of limitations that apply to adult criminal proceedings apply to juveniles except for certain designated felonies which also must be commenced before the respondent’s eighteenth or twenty first birthdays depending on the felony.  The criminal procedure law is not applicable to juvenile delinquency proceedings except in certain instances.  For example, the Family Court Acts specifically provides that double jeopardy is also applicable to juvenile proceedings.  The Family Court Act also specifically requires that the defenses outlined in articles thirty five and section 30.05 of the penal law apply to juvenile delinquency cases.

When an alleged juvenile offender is arrested they are only fingerprinted if they are certain ages and are accused of certain felonies.  The specifics ages and charges for which fingerprinting apply are outlined in the Family Court Act Section 306.  The trier of fact in a juvenile proceeding is a judge.  There are no jury trials in Family Court.  The Family Court Act dictates the applicable rules of evidence.  The burden of proof, like for adults, is beyond a reasonable doubt which is the highest burden in our justice system.  If the Respondent is found to have committed a juvenile delinquency act beyond a reasonable doubt then the case shifts to a dispositional hearing.  The Respondent might be conditionally discharged, put on probation, or placed in custody among other alternatives.  Again the needs of the Respondent and safety of the community are weighed. Continue reading ›

Trials and hearings, in New York divorces, can be on the topics of grounds, custody, support and equitable distribution.  While the majority of cases settle prior to trial, many trials are still necessary on some or all of the issues.  Although other hearings are possible, such as on contempt or modifications of orders, the aforementioned are the most common.  All of the issues may be heard together or handled at different times.  For example, if grounds are disputed, a court may schedule a grounds trial right away since if grounds do not exist, then the rest of the divorce is a moot point as it cannot proceed.

Grounds are rarely an issue nowadays since the passage of the No-Fault law in 2010 which merely requires one party to the case to be able to swear that the marriage has been irretrievably broken for at least six months.  However, if a party insists on fault based grounds that are disputed, a trial might be necessary on those grounds if disputed.  As a New York City and Long Island Divorce Lawyer, I found myself in a grounds trial soon after the passage of the No-Fault law since the other side insisted on pursuing fault based grounds.  Another possible grounds trial could be on the issue if a party substantially complied with a separation agreement when divorces are sought based on the grounds that the parties have lived apart pursuant to a legal separation for at least one year.

So, what evidence is admissible at a divorce trial?  For the most part, these rules of evidence apply at most civil trials whether on a divorce, family court matter or otherwise.  In general, all relevant evidence is admissible, unless it should be excluded based on some rule of evidence.  Irrelevant evidence should not be admitted at trial if objected to by the opposing side or the trier of fact (judge).  Evidence that has a reasonable tendency to show or not show the existence of a fact necessary to the decision on a matter is relevant.  If a bit of evidence seems to be from a non-reliable source, usually it would still be deemed admissible, however it might not carry a lot of weight.  What value to give the evidence is for the court to decide.  However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue delay or waste of time. Continue reading ›

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