Irretrievable Breakdown Urged By New York Bar As A Grounds For Divorce

Posted by Daniel Clement on December 27, 2006
The New York  State Bar Association listed no-fault divorce as one of its key legislative priorities for 2007.

As I previously detailed, New York is the only state that does not have a no-fault grounds for divorce.   The absence of a true no fault divorce has often resulted in costly legal proceedings and bitter custody fights even in cases where both spouses want a divorce.

The Bar Association is advocating a grounds of divorced based upon the  "irretrievable breakdown" of the marriage.  According to Bar Association President Mark Alcott, this would address problems associated with finding fault in a divorce. This leads to increased litigation costs and worsens confrontations between the spouses, according to the association.

New Jersey recently approved an irretrievable breakdown of six months as a basis for  divorce.

Also on the domestic relations front, the State Bar  wants the Legislature to provide either a domestic partner registry, civil union law, or an amendment to the definition of marriage to give same-sex couples the same legal rights as married heterosexuals.

Custody Fights and Domestic Violence All To Common During Holiday

Posted by Daniel Clement on December 21, 2006
I came across this article in NWI Times which confirmed, that which I already knew;   domestic violence and custody disputes increase during the holidays.  Though the article involves police in the Midwest, the message is universal.

Police officers who have to work on Christmas are faced with a double whammy.

Not only do they have to be away from their own families, they inevitably wind up spending time with someone else's.

Lansing Police Chief Dan McDevitt said veteran officers know what to expect when working the holidays -- a spike in domestic calls ranging from violent fights between family members to child custody disputes.

"If they've been around awhile, they know it's a full moon syndrome," he said. "It's going to get crazy."

McDevitt has taught at colleges, universities and police academies in the United States, Europe and the Middle East for both civilian and military law enforcement personnel.

He teaches his students that domestic calls are the worst they'll encounter.

"There's no more dangerous call for a cop," McDevitt said. "They're completely unpredictable. No matter how badly the parties involved have been battling, when you show up, you're the bad guy and they turn on you."

While working one Christmas, McDevitt was called to a homicide in Robbins involving a man who killed his cousin in a fight over a pork chop.

"We arrested the guy and were going to drop him off at the lock up and as I was getting him out of the squad, I said, 'So, was it good?'

"He said, 'What?' I said, 'The pork chop, was it good?' and he goes, 'It was delicious.' It drove me nuts."

Sgt. Keith Hughes of the Portage Police Department was working as a supervisor last Christmas and took some time to go home to watch his children open their gifts.

"I no sooner get there and we get a call of a physical disturbance with a knife involving a father and two sons and one attacked another one with a frying pan," Hughes said.

Sgt. Tim Emmons of the Porter County Sheriff's Department said domestic problems around the holidays are all but inevitable.

"You've got people thrown into family situations that aren't always family-oriented," Emmons said. "People often drink during the holidays or take drugs to try to deal with the stress and that makes things more volatile. People also do it to excess who aren't used to it, and that creates problems, too."

Police calls regarding child custody issues also tend to rise during the holidays, McDevitt said, and are some of the calls that upset him the most.

"It's terrible," McDevitt said. "Don't these people have any idea what this is doing to these kids?"

McDevitt and Emmons both said families often are advised by their attorneys to transfer custody at a neutral location and choose the Police Station, meaning children often spend part of their Christmas there.

Emmons said the custody situations sometimes escalate when police tell them they can't get involved.

"Sometimes the best we can do is take a report and turn it over to the courts," Emmons said. "We often aren't the custody police. If Dad's two hours late returning the kids, Mom thinks we'll make an arrest and, oftentimes, that's just not the case."

As tough as working the holidays can be, McDevitt said he has a simple coping mechanism he stresses to his officers and students when handling domestic calls:

"Treat people like you'd like to have your family treated."

"I also tell them to treat people with some compassion," McDevitt said. "You probably have a nice family to come home to at the end of your shift, which is more than these people have, so try to be compassionate."

If your ex-spouse is supposed to have visitation with the children over Christmas, allow him/her  to see the children. The children are not pawns to be used to seek revenge for past wrongs or slights.. 

Above all, the holidays should be a festive time, a time to be shared by families, even families that are no longer  intact. 

The holidays should not be marred by custody disputes and  9-1-1 calls.





Questions to Ask Before Marriage

Posted by Daniel Clement on December 20, 2006

The Family Law Prof Blog  picked up on a great piece that appeared in the New York Times. The piece is simply a series of questions couples should ask or wish they had asked before marrying.


These questions are thought provoking and go to the core of the marital relationship. As a father/husband, I see the questions raised coming into play. As a matrimonial lawyer, I see the sad result when the couples’ answers are in conflict.  Quite frankly, if answering the questions was a prerequisite to marriage,  many matrimonial attorneys would be in a different line of work. 

I have included the questions here:

1) Have we discussed whether or not to have children, and if the answer is yes, who is going to be the primary care giver?

2) Do we have a clear idea of each other’s financial obligations and goals, and do our ideas about spending and saving mesh?

3) Have we discussed our expectations for how the household will be maintained, and are we in agreement on who will manage the chores?

4) Have we fully disclosed our health histories, both physical and mental?

5) Is my partner affectionate to the degree that I expect?

6) Can we comfortably and openly discuss our sexual needs, preferences and fears?

7) Will there be a television in the bedroom?

8) Do we truly listen to each other and fairly consider one another’s ideas and complaints?

9) Have we reached a clear understanding of each other’s spiritual beliefs and needs, and have we discussed when and how our children will be exposed to religious/moral education?

10) Do we like and respect each other’s friends?

11) Do we value and respect each other’s parents, and is either of us concerned about whether the parents will interfere with the relationship?

12) What does my family do that annoys you?

13) Are there some things that you and I are NOT prepared to give up in the marriage?

14) If one of us were to be offered a career opportunity in a location far from the other’s family, are we prepared to move?

15) Do each of us feel fully confident in the other’s commitment to the marriage and believe that the bond can survive whatever challenges we may face?

Over-Payment of Child Support Can Only Be Re-Couped Against "Add-Ons"

Posted by Daniel Clement on December 19, 2006

Motions for modifications of child support are generally effective retroactive to the date the application is made. While the application to modify a support payment is pending, the non-custodial parent is urged to abide by the existing support order.

If an upward modification is granted retroactively, the parent paying support is ordered to pay the arrears that accrued from the date of the application to the date of the order.

But what happens if the parent paying support is current in making support payments under an existing order and is granted a downward modification? There would have been an over-payment of support. Could the parent paying support further reduce the child support payment to recoup the overpayment? The Appellate Division, First Department answered that question with a unanimous “No.”

In the case Coull v. Rottman, the Court said that it would violate public policy to allow the parent paying support to take a credit against future child support payments in order to re-coup the over-payments. Instead, the Court ruled that the parent paying support is only entitled to re-coup the over-payment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs. 

Thank You for this Blog's Success- Please Participate

Posted by Daniel Clement on December 13, 2006
I am overwhelmed by the popularity of this blog.   I want to provide you- the readers and subscribers with information that will be insightful and helpful.   Please feel free to write me if there are any topics or news items that you wish me to address in the area of family law and divorce in New York.

Moreover, I welcome your comments so that we can have an on-going dialog.

Season greetings.

Daniel  Clement
 

A Mother Is Denied Visitation Since She Abandoned Her Children and Resides With A Criminal

Posted by Daniel Clement on December 06, 2006

A court ruled that it was “a no-brainer” to deny a mother’s visitation request to force her children to spend the summer with her in Florida since she abandoned her family and took up residence with a convicted felon. The Court said visitation would not be in the best interests of children.

In LG v. JG, the mother sought to compel her children to travel to Florida to visit her in the home she shares with her boyfriend, a convicted felon. The court shared the father’s concern that the new boyfriend was “a general undesirable,” who should not be in contact with young children. 

Moreover, the Court found that the children were quite bitter towards their mother since she, without explanation, abandoned them.

Justice Pastoressa ruled that “it is the best interests of the children which controls, not the personal preferences, convenience of one parent vis-à-vis the other.” Since there would be no way of preventing the boyfriend from being in contact with the children if they were compelled to visit the mother in Florida, the Court ruled that it was clearly in the children’s best interests to deny visitation with the mother in Florida.  

The Court noted that the father was open to the mother seeing the children in New York.


Custodial Parents Interfering with Visitation Lose Custody and Held in Contempt

Posted by Daniel Clement on December 04, 2006

In two recently decided cases, custodial parents were penalized for interfering with visitation and attempting to alienate children from the non custodial parents. In one of the two cases, a mother lost custody of her child; in the other case, the mother was found in contempt and risked further consequences if the conduct continues.

In Chase v, Chase,  a mother’s continued false accusations that the father was a pedophile, compelled the Appellate Division reverse a Family Court finding that granted custody to the mother. 

The Appeals Court’s finding that the mother failed to produce the child for visitation, made repeated false and unsubstantiated claims that the father sexually abused the child, and repeatedly disobeyed various court orders warranted a change of custody. As a consequence of the mother’s conduct, the Court granted the father custody of the child.

In another case recently decided by the Suffolk County Family Court (Frank G. v. Carol G.), a mother was found to be in contempt of court for her failure to abide by the visitation provisions incorporated in a judgment of divorce. 

In both cases, the courts were particularly upset by the fact that the mothers, by their own admission, acted as the sole arbiters of what was the best course of conduct for their children.  Both mothers knowingly and intentionally disregarded court orders providing for the fathers’ visitation. 

Both courts reiterated the axiom that interference with the relationship between a child and the non-custodial parent by the custodial parent has said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.

While the holdings of these two cases evidence a judicial hostility to the custodial parent’s attempts to alienate a child from the non-custodial parent, the facts unfortunately show that the non-custodial parent has a long and difficult course to enforce their visitation rights.  

Since requests for a change in custody  are, quite properly, closely scrutinized, a custodial parent accused of interfering with the non custodial parent’s visitation is frequently given gentle slaps on his/her wrists before facing the consequence of being held in contempt or losing custody.

I