New York Divorce and Family Law Blog : New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself.

In the age of social networking, new rules of apply to couples going through divorce.
The rules, as compiled by Time, can succinctly be boiled to one- “Discretion is the better of valor.”

1. Don’t brag.

Your claims of poverty will ring hollow if you brag on Facebook about your purchases of expensive items or post photographs of lavish vacations.

2. Keep the party off-line

Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

3. Guilt by association.

You are who you hang out with. See Rule No 2.

4. Keep the details of the divorce private.

Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

5. Don’t Defriend.

As Time points out, unless it is high conflict, “Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.”
 

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It was been an interesting week in family law practice, which I thought I note before taking a few days off with my family . 

In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.  

In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H., the non biological parent,

 [S]erved as a loving and caring parental figure during the 2 ½ years of the child’s life, she never legally adopted the child. 

Based upon this reasoning, the court held that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law §70.  

 In another case, a woman whose donated egg was implanted in her same-sex partner was permitted to adopt the resulting child. The parties were lawfully wed in Holland.  

  This case presented the novel issue whether a party, who was not legally married to the child’s mother at the time of conception, but who is genetically the mother can legally adopt the child. 

 In Matter of Sebastian, the Surrogate granted the petition, even though alternatives to adoption may have been available.   Two viable alternatives were obtaining an order of filiation or being listed as a parent on the child’s birth certificate. 

 The parties sought an adoption because they felt only an order of adoption would ensure that all the states and the federal government would recognize the adoptive mother as the child’s parent.  

 The Court specifically noted that

 Although it is true that an adoption should be unnecessary because Sebastian was born to parents who marriage was legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the United States.

 These cases further highlight complex child custody issues faced by same sex couples in the absence of legally recognized marriage.

 

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The rights of unmarried fathers of children were in the news with the recent reports about Sarah Palin’s daughter’s break up with her boyfriend. I was, in fact, quoted in one such article that appeared in the New York Daily News.

Like their married counterparts, unwed fathers have the right to custody and visitation of the children. That the parties did not wed does not in any way limit the father’s parental rights As in all cases, the standard of visitation/custody is “best interests of the children.”

The flip side of parenting is the financial responsibilities. The unwed non-custodial parent, whether it be the mother or the father, has the responsibility of paying child support for child. In New York, child support is calculated by applying statutory percentages (17% for one child, 25% for two children, 29% for three children) to the parent’s gross income, with limited deductions.
Click to see the a child support worksheet.
 

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In the spirit of the upcoming holidays, Newsweek offers guidance to divorced parents on how to make the holidays better for their children.

Admittedly, the holidays are the most difficult and painful times for families broken apart by divorce. Both parents want to maximize their time with their children. Even the best intentioned parent may be tempted to play the game of one-upmanship by giving bigger and more expensive gifts to the children in an attempt to buy their love. All of this leads to increased stress and conflict at a time that should be joyous.

But, there are things that you can do to make the holidays easier for the children. According to Robert E. Emery, professor of psychology and director of the Center for Children, Families and the Law, the challenge is to view and conduct your behavior from the children’s perspective.

Professor Emery offers these tips, with my comments included, to make the holidays more bearable:

1. Remember that the holidays are not all about you.

”Encourage the children to have a blast with their other parent, even if you can't stand the prospect of being alone.”

2. Get into the spirit of the season.

”This is a time of giving, forgiving and fresh starts. Turn Scrooge's emotional lessons about holidays past, present and yet to come into New Year's resolutions about letting go of anger and treasuring all you have—despite all you have lost.”

3. Love means far more than money.
 

Your time, love attention and emotional presence are the best gifts you can give your children. You do not have to be physically present to “be there” for your children. .
 

4. The holidays are not a competition with your ex, or for your children.

5. Communicate and coordinate with your children's other parent.

Communication and planning will ease transitions and reduce conflict and redundancy.
 

6. Celebrate with your children's other parent.

Children may feel guilt abandoning one parent during the holidays. Do a good deed – for the sake of the children – and include the other parent; maybe next year the favor will be returned.
 

7. Set up a plan for next year now.
To avoid last minute disappointment or negotiations, plan for the holidays in advance; if there is a holiday schedule try to stick to it, but be willing to amend it as needed.

8. Establish traditions with your children.
Establish new traditions with your children. After all, it is the rituals and traditions, passed on from generation to generation that make holidays special.

I wish you all a healthy, festive, joyous, peaceful, stress-free and prosperous holiday season.
 

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Today was Veteran’s Day. From my window on Fifth Avenue, it seemed like the biggest loudest parade in years. In view of this holiday designed to give recognition to those who served this country, it seems appropriate to note a new law which was enacted with little or no fanfare.

While protecting the countries’ interests, members of the military unselfishly make great sacrifices and put all aspects of their life on hold. The tragedy of war would be greatly compounded if permanent changes of custody of children were granted while a child's parent was serving the country and was deployed overseas. Recently, a law was enacted to prevent this unjust result.

As provided in the law's  memorandum:

This new bill prohibits a court from making a permanent change in an existing custody order when a custodial parent has been activated, deployed or temporarily assigned to military service and cannot care for his or her children for that reason. The bill protects the best interests of the child, who will clearly be affected by the absence of the parent, by allowing the court to make temporary modifications to the existing custody order while the military parent is so deployed.

While the Court is empowered to make temporary changes, if necessary, to protected the best interests of the children, when the military deployments ends, there is to be a hearing on the issue of the change in custody. 
 

This is a wise piece of legislation, designed to protect the interests of children and their military parents from opportunistic parents, seeking to permanently change custody only because the other parent deployed in the military.    While a temporary change in custody may be justified during a deployment, the deployment should not  be the sole basis for a permanent change in custody. 

 

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A-Rod, Christie Brinkley, Madonna. There is no escaping it. Divorce is all over the news. The tabloids (and their readers) are eating it up.

The issues in these celebrity divorces are, in large measure, the same as those of everyone else. Granted - few of my cases involve the wealth of someone like A-Rod.

These cases seem to all have the recurrent theme of adultery, infidelity and loss of trust. As a result of the betrayal, marital assets will have to be divided.

The very public Christie Brinkley trial is particularly compelling. It is providing a primer on how a child custody trial works. In a child custody case the inquiry is what are the best interests of the children. In the Brinkley case the court must decide if the children should be in the sole custody of the mother or whether there should be some type of shared custody. The trial also demonstrates the role of mental health professionals in a custody fight.

The very public process, the attorneys and the press all try to demonize or to paint parties as “all good” or “all bad.” In my experience, this is often not the case. In most cases, the spouse you loved and married years ago, did not over-night morph into some unrecognizable evil force. While all the parties to the process are flawed, they have good attributes as well.

At the end of the custody battle like Christie Brinkley’s, there are no winners, only losers. The parties will not only have lost their dignity, they will also have lost the ability to share, together, the joy of life’s great events like their children’s graduations and weddings, or even the birth of their grandchildren.

The children will certainly lose. In the end, they will be drawn into the “battle” and become alienated from one, or both, of their parents.

In the end, the lesson from these trials should be that divorcing parents should, to the extent possible, agree that they cannot live together and that the marriage should end. While there may be some dispute over economic issues, parents should, to the extent possible, work together to find a way to share responsibility for raising their children

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A study published in Ambulatory Pediatrics warns that young children, who are separated from their parents, are at increased risk for learning difficulties and may require special education.

Separation of parents and children is one of the unfortunate consequences of divorce. It is disturbing to learn that divorce may be a cause of learning disabilities.

The study enrolled 1,619 children between ages 4 and 6 who were entering Rochester City School District kindergarten classrooms in the fall of 2003. Parents or caregivers were asked if their child had ever been away from a parent for more than a month, and if so, if the separation occurred once, twice, or more than three times. These adults also completed the Parent's Appraisal of Children's Experiences (PACE) survey to measure their children's developmental skills by various observable behaviors (e.g., if the child can cut with scissors; if he or she can tie their shoes") The results were then analyzed to produce four 4-point scales, each measuring different dimensions of healthy. development, including: how well a child learns new tasks; how well he or she uses language to express ideas; how literate he or she is (e.g., can he or she read his own written name"); and the quality of his or her speech (e.g., do other people often have difficulty understanding the child")


Children who have been separated at any point scored significantly worse both on the 4-point scales measuring their ability to learn new tasks and their pre-literacy skills. Of note, their expressive language and speech scores fared better-- they were comparable to those of their non-separated peers

There are practical explanations for the study’s findings. For instance, in the case of a single parent household, the custodial parent may be working and raising several children. This parent simply may not have the time to spend reading to the children or exposing them to new things. It is believed that early childhood exposure to new ideas and experiences fosters children’s learning skills.

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Imagine a mother seeking to prevent children of the marriage from having visitation with their father in his home simply because he has a cat, particularly when there was no claim that the cat was vicious or endangered the children.

In Mandel v. Mandel, decided by a Nassau County court last week, a mother claimed that the children’s exposure to the cat in their father’s home posed a serious health risk to her and, as result, sought to limit the father’s visitation.

In the case, the mother claimed that she had to be hospitalized because she had severe allergic reaction to the cat. The father testified that, in order to protect the mother from exposure to the cat, the children would change their clothes either at the father’s home before returning to the mother’s home or immediately after returning to the mother’s home in her garage. The father also testified that the children were exposed to other dogs and cats in the homes of their friends.

The Court found that there was no precedent for excluding the children from the father’s home because the cat presented no risk to the children. The Court urged the children to continue take reasonable precautions to limit the mother’s exposure to the cat following the visitation their father.

I suspect that there was really something more going on in the case then whether the children should be around the father’s cat. In its decision, the court alluded to the fact, that the cat did not become an issue to the mother’s health until the father stopped paying the mortgage on the former marital residence now occupied mother and children.

But, like my mom always said, “Two wrongs don’t make a right.” Because the father may have done something that the mother did not like, the mother had the knee jerk reaction of attempting to restrict the father’s access to the children to gain some advantage.

What should give the mother some concern is that this decision is an interim decision and there will soon be a trial. If the court felt that this mother was using the issue of the cat and visitation to obtain advantage over the father, the mother’s strategy will have backfired. If, for instance, as a result of this application, the court felt the mother and was manipulative or lacked credibility, the result, at trial, could be devastating.

Hopefully, an amicable settlement is imminent.

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I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.

While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.

As pointed out in the Leonard Link:

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.

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For some reason, Valentine’s Day brings on lots of articles about divorce. Jonathan Clements (no relation) wrote an interesting piece in the Wall Street Journal about his “fairly successful” divorce.

Success, he properly points out, does not mean he took his ex-wife to the cleaners or that he extracted every concession he could from her. To Clements, a successful divorce means that while he and his ex are not best friends, they each benefit from having a civil relationship in which they both get to share in the joys and pains of raising their children.

Clements, armed with the perspective of looking backwards, offers some invaluable divorce tips:
.

Avoid the legal arms race because it will hurt both of you.
As you negotiate a settlement, every dollar of legal costs incurred likely means 50 cents out of your pocket. Trust me: There are cheaper ways to work through your anger.


Having the ex-spouse around the corner might seem uncomfortably close.
But if you have children, it probably means you will see less of your former spouse. There are no awkward drop-offs and pickups. Instead, the kids just walk back and forth.


Maintain a reservoir of goodwill, because you'll need it.
It will be your week with the kids, your boss will have other plans -- and you may need your ex-spouse to bail you out.


If your ex ends up with a little more money in the divorce or goes on to do well financially, don't let it eat away at you.
In all likelihood, your children will be the ultimate beneficiaries.


Think of your relationship with your ex-spouse as a business relationship.
Forget the bad blood. Ignore stuff that isn't your business. Instead, focus on the task at hand, which is raising the children.

Divorce is a process- it is not an end result. At the end of the process, you may want and even need your ex to help nurture, support and even discipline the children.

Bottom line- burning bridges during the divorce may later preclude you from sharing in the joys and responsibilities of being a parent. .

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Every once in awhile, there is a reported case where one parent’s interference with the rights of the other parent, results in the interfering parent’s loss of custody. I have written about this problem before.

Nikolic v. Ingrassia presents another such case where unfounded claims of abuse  by one parent resulted in a loss of  custody.   In Nickolic, the Appellate Division affirmed a lower court’s finding that:

. . . .the mother had interfered with the father's visitation rights by demonstrating a "relentless determination . . . to have the father characterized as an abuser" and thereby preclude his access to the child. The court's finding is supported by substantial evidence, including several unfounded reports of abuse made by the mother to the police and to Child Protective Services, as well as the opinion of a psychologist that the young child may have been coached to say that her father had hit her.

Having made that finding, the Court “recognized that the [w]illful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the child as to raise a strong probability that the offending party is unfit to act as a custodial parent."

BE WARNED- Unfounded and false reports of abuse will not be condoned and will be punished. You will lose custody of your children.

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In an interesting piece on the Huffington Post, Stacy Schneider opines that Rudy Giuliani’s “Nasty Divorce” reveals why he may be unfit to be president. Politics aside, the former mayor’s divorce is a primer on what not to do during a divorce.

The divorce was a vicious, go-for-the-jugular, corrosive slugfest, with Rudy seemingly pulling the sharpest punches of the pair. His ongoing public display of his mistress's affections was certainly unbecoming of an elected official. But watching an uncaring father of two young children consistently display his contempt for his own family on the television news was both shocking and heartbreaking.

Schneider highlights the mistakes made by Giuliani, to which I add my thoughts.

• Rudy publicly humiliates his wife by announcing his divorce plans to the media, before privately informing her and their children. He then openly admitted having a romance with Judy Nathan, now his third wife, while he was still married.

Is it no surprise that Rudy is estranged from his children? When asked how I tell my children that I am getting divorced, I doubt anyone would suggest holding a press conference. The children should have been privately told that their parents were divorcing.

• Next the mayor's attorney, famed celebrity divorce lawyer, Raoul Felder viciously attacked Donna Hanover with Rudy's approval, publicly describing her as "howling like a stuck pig."

There really is no place for name calling or finger pointing. This child- like behavior may sell newspapers, but, it only adds to the animosity, without any tangible or economic benefit.

• Further, it seemed to be a big priority of Rudy's to maintain his own comfort in carrying on his liaison with Judy Nathan at the expense of his children. This was evident when a judge barred her from continuing her frequent visits to the mayor's mansion, ostensibly because of its effect on the children, who were living there with their mother. At one point during divorce proceedings, Rudy was denied joint custody of his son because he insisted on having Judy present during the children's overnight visits at his home.

This is a clear case of not acting in the best interests of the children. Giuliani put his desire to be with his girlfriend over and above the needs of the children. The Mayor would have been better advised to spend alone time with his children to re-establish their bonds.

I can only imagine the loss of trust and sense of betrayal his children felt after learning that their father left their mother for another woman. The feelings had to be transformed to frustration and anger when the children, while visiting their father, were forced to spend time with his new girlfriend.

Since we learn from our leaders, Giuliani’s divorce is a case book example of how to alienate your children as part of a divorce. This is a lesson not to be followed.

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I am continuing to explore the recent decisions of the Appellate Division.

In re Michael McC., v Manuela A, a mother took her child and fled from New York and went to Italy during a pending child custody case in a deliberate attempt to deprive New York of jurisdiction to hear the case. After conducting an exhaustive study of the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA”), the Appellate Division found that New York would retain jurisdiction to decide custody matter.

UCCJEA and governs virtually every custody proceeding. It is designed to eliminate jurisdictional competition between courts in matters of child custody and the substantial confusion that arose under its predecessor, the UCCJA. Thus, under New York's UCCJEA, a New York court has jurisdiction to modify a child custody determination made by a court of another state if this state is the "home state" of the child. Moreover, the New York court continues to maintain exclusive jurisdiction until a determination is made that neither the child, nor the child and one parent have a significant connection with this state, or where the court determines that neither the child, and neither of the child's parents reside in the state.

Further, a state is considered to be the child's "home state" pursuant to DRL 75-a(7), where the child has been wrongfully removed to another jurisdiction. In such instances, the child's stay outside of New York is considered as nothing more than a period of temporary absence and as part of the six-month period. . . .The fact that a custodial parent flees in the middle of a custody litigation commenced properly in New York simply does not deprive the New York courts of subject matter jurisdiction to issue an order concerning custody, visitation, and related issues.

Here, there is uncontroverted evidence that the parties, mother, father and child were living in New York since January 2005, a period of 19 months prior to the mother's petition for a modification of the initial custody order, and 22 months prior to the father's cross petition for sole custody. Thus, the record establishes that New York has jurisdiction in this custody modification proceeding. Moreover, the mother's flight to Italy cannot deprive New York of continuing jurisdiction in this proceeding so long as the father resides here.

Though the decision was well reasoned and supported by law, I cannot help but wonder if the Court was, at least, in part, motivated by its dis-pleasure over the mother who, facing a potential adverse decision in a New York court, “forum shopped” and fled to a jurisdiction where she thought she would obtain a more favorable result.

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The New York Times today reported how in the Bronx Family Court,   Elevator Woes Slow Justice.

The eye opening article details how, because of broken elevators, litigants wait in line for hours to get an elevator to a court room resulting in missed court dates or, even worse, dismissed cases.   The Family Court is a court where justice cannot be delayed. Critical rights regarding the welfare, custody and support of children are involved.

Consider the case of a client of Ms. Gutfriend’s who was scheduled for a hearing in mid-November to determine whether she could get her daughter back from foster care, where the child had been for 10 months.


The hearing was set for 10 a.m., Ms. Gutfriend recalled, but it was a day when only two of the four elevators in the building were working. The lines to get on the elevator and up to the hearing rooms stretched back two city blocks. Her client phoned upstairs to let her know she was stuck in the line, but was not able to get upstairs in time.


The judge agreed to call the hearing again an hour later, but the client was still in line. So the judge, who had something like 70 other cases to try that day, rescheduled the no-shows for the next available date. For this mother, the next chance to plead her case and get her child back was in January.

In any matter involving children’s rights, whether it be custody, support or visitation, time is critical. While the legal system may sometimes move at a snail’s pace, delay caused by the court’s physical intra-structure, which impairs or prevents litigants from having access to the court cannot and should not be tolerated

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Question- I had custody of my daughters from birth until they were 12 and 13. I voluntarily let them live with their father. Father didn't pay any child support until 2002 when I applied for it, and he was only ordered to pay $25 a month. Now the father is seeking support from me. Will the court take into consideration the years he didn't meaningfully contribute to their financial needs when they lived with me?

Answer-Changes in child custody often cause problems in child support.

In New York, child support is awarded retroactive to the date of the application. If you did not apply for support until some time in 2002, the father had no “legal” obligation to pay child support. The father became legally obligated to pay child support when ordered by the court. Notwithstanding the fact that the father now has custody of the children, the father’s obligation to pay support continues until the children become emancipated or a court order terminates the support payments.

Your obligation to pay support will begin when it is ordered by the court. But, be careful- the support obligation could be retro-active to the date the father first sought support. So you could be in arrears even though there is no court order requiring you to pay support.

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Darn Divorce provides some insightful tips on how to help children cope with divorce.

1. Tell children the truth in simple terms with simple explanations. Tell them where their other parent has gone.
2. Reassure them that they will continue to be taken care of and that they will be safe and secure.
3. Your children will see that parents can stop loving each other. Reassure them that a parent’s love for a child is a special kind that never stops.
4. Spend time with each child individually. Whether you have custody or visitation, the most important thing to the child is your individual relationship with him or her. Build the best relationship you can. The future is built of many tiny moments.
5. Children feel responsible for causing the divorce. Reassure them that they are not to blame. They may also feel that it is their responsibility to bring their parents back together. Let them know your decision is final and will have to be accepted.
6. Divorcing parents often feel guilty and become overindulgent. Give your child love, but also give limits.
7. Your child is still a child and can’t become the man of the house or a little mother. Continue to be the parent to your child. Seek other adults to fill your own need for companionship.
8. Avoid situations that place a child in the impossible position of choosing between parents:
* Don’t use your child as a way to get back at your spouse. Children can be terribly wounded this way.
* Don’t say bad things about the other parent in hearing of a child.
* Don’t say or do anything that might discourage the child from spending time with the other parent.
* Don’t encourage a child to take sides.
9. You and your former spouse will continue to be the parents of your children for life. Pledge to cooperate responsibly toward the growth and development of your children as an expression of your mutual love for them.
10. Be patient and understanding with your children. Be patient and understanding with yourself.
Even though it may be the last thing you feel like doing, cooperating with your spouse during your divorce is one of the best things you can do for your children. They learn that conflicts can be resolved eventually, which is a valuable lesson.

It is important to remember, that the children are the “victims of divorce.” In most cases, they should be allowed, and, in fact, encouraged to maintain a relationship with both parents

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I have returned from my vacation, schools back in session and summer is, for all accounts over. So, I am back to bloggging on a regular basis.

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate and the move will negatively impact on the other parent’s relationship with the child. The Nassau County Family Court in the case Mr. G. v. Mrs. M (New York Law Journal, 8/28/07 (subscription required) provided a excellent primer on the subject and in doing so, denied a mother’s application to move with her child to Virginia.

As laid out in the leading case of Tropea v. Tropea, the issue is to be determined as is in the best interest in the child. In doing so, the Court is to consider the following criteria:

1.Each parent’s reason for either seeking or opposing the relocation;


2.the current state of the relationship between each parent and the child;

3.the impact that the relocation will have on the quality and of the child’s relationship with the non-custodial parent;

4.the emotional, economic and educational effects that the move will have on the child; and

5.the feasibility of maintaining the relationship between the child and non-custodial parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

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James Andrew Miller wrote a compelling op-ed piece in the New York Times, theorizing that expensive and heart wrenching custody battles could be avoided if parties intending to marry, merely entered into a pre marital agreement. He details the understandable outrage of friends, told by their soon to be ex-spouses that they would be allowed to have visitation with their children.

However, what Mr. Miller ignores is that parties can contract to virtually any issue of the marriage except child custody and support. Any provisions would be contrary to public policy and would be unenforceable.

 Child custody is based upon the best interests of the children.   It would be virtually impossible to make a best interests determination when the parties are first getting married and before children are even born. For this reason, a custody determination should only be made at the time parents elect to divorce.  

 

 

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A bankruptcy filing does not discharge an obligation to pay child support.   To the contrary, since other debts are discharged, funds that might have been paid toward other debts can be freed up to pay child support.

The Child Support Blog cites the recent case of  former NFL wide receiver André Rison to illustrate this point.  A bankruptcy court  ordered Rison into involuntary bankruptcy so that  $105,000 in child support arrears can be paid.

While some unsecured debts can be wiped out or reduced in a bankruptcy, other obligations, like child support, are "nondischargeable." This means that the bankruptcy filing does not wipe them out or reduce them. These debts must be paid regardless of the bankruptcy.

In fact, the 2005 revisions to the Bankruptcy Code made “domestic  support obligations” like alimony and child support a top priority. In order to obtain a discharge under Chapter 13, the debtor must provide for full payment of priority debts, including arrearages in domestic support obligations and certify that all post-petition domestic support obligations have been met.

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A new study appearing in the Canadian Medical Association Journal reports that children are twice as likely to be prescribed Ritalin after their parents divorce.

According to Mind Hacks, Ritalin is the trade name for the amphetamine-like drug methylphenidate. It is typically prescribed for ADHD, a diagnosis which describes problems with staying focused, impulsiveness and / or hyperactivity.

The full study can be read here.

As questioned in the Earthquake in Zipland blog,  “Is it possible that divorce acts as a stressful life event that creates adjustment problems for children, which might increase acting out behavior, leading to a prescription for Ritalin?”

Could another reason be that children of divorce are more likely to be studied and observed more than children from intact families? Children of divorce are routinely given the opportunity to work out their issues with mental health professionals. For this reason, I am certain that the percentage of children in therapy is highest among children from broken homes.  Could this then account for the greater number of diagnoses and prescriptions?

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The National Marriage Project at Rutgers University put out a fascinating study debunking The Top Ten Myths of Divorce.

Perhaps the most interesting portions of the study, address the issues of divorce and children. The study shows, not surprisingly, that divorce has deep, long lasting emotional effects on children, and increases the likelihood that their future marriages will end in divorce. The report concludes that except for in the case of high conflict homes, children are better of living in a home with unhappy parents than seeing their parents divorce.

I have excerpted the relevant portions here:

Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.

Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems then if they divorce.

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With a dedicated staff which includes a parenting coordinator and a family services coordinator, the Court is able to refer litigants to alternate dispute resolution programs, counseling, and parent education programs. Under the auspices of the Court, the parties are encouraged, for instance, to develop parenting plans.

According to Justice Robert Ross, the supervising judge of Nassau County’s Matrimonial Center, “The non-adversarial forum for parents to resolve their custody disputes, often expedites the resolution of a contested matrimonial cases.”

The New York Law Journal reports that the pilot program has been quite successful. Since the program was implemented five months ago, 16 of the 20 cases assigned to the program have settled.  The grateful litigants have written thank you letters to the court.

The Nassau County Courts should be commended for looking “out of the box” for a way to efficiently resolve divorces. Other jurisdictions, like New Jersey, have made parent education mandatory at the outset of a divorce. But in those cases where custody is not in issue, mandatory participation is a waste of time. 

What seems to make the Nassau County program effective is that it can be specifically tailored to the needs of the litigants. Still the question remains, will this program, which was limited to twenty cases, be as effective when it is expanded to the almost two thousand contested divorces filed in Nassau County last year?    

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            There is probably no easy or correct way to tell your children that you and your spouse are separating or divorcing.  It would be an understatement to say that divorce will have a devastating impact on their emotional and psychological well-being.   But, how parents inform their children and negotiate future parenting responsibilities affect how children will react to the news.

            Dr. Marshall Colt gives parents several common sense tips to addressing the issue with their children:

• It’s best to tell your children together, simply, honestly and directly.
• Don’t go into detail about why or bash your spouse.
• It’s okay to reveal your sadness, while allowing them to also show their feelings.
• If you’re separating and not sure about divorce, don’t make predictions or promises you can’t keep.
• Try to keep things as consistent as possible.

            Going forward, encourage the relationship with the other parent. Though you and your spouse are separating, neither of you are divorcing the children.  Children should be encouraged to maintain their relationship with both parents.   If your spouse is a “bum” let the children find this out for themselves. Do not indoctrinate or impose your views on them. Do not attempt to alienate your children from your spouse. Not only can this have a negative financial impact, it may be you that the children end-up resenting.

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Continuing with a trend to penalize parents who interfere with visitation, the Appellate Division, Second Department in Adams v. Perryman, modified a joint custody agreement and granted a father sole custody of their children because the mother thwarted the father's efforts to have meaningful visitation.

While the Court's decision does not detail exactly what the mother did, the decision evidences that there is a growing judicial intolerance of one parent interfering with the other parent's visitation rights.

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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.

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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
 

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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

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This headline caught my eye:  Boy Tarzan's ma takes swing at dad in divorce.

 "The teenage star of Broadway's "Tarzan" was hurt so much by a bitter feud between his parents it sent him into intense therapy sessions."

"But the pain of talking about the vicious sparring was too much for 13-year-old Daniel Manche, who asked to drop out of the counseling - and to stop seeing his dad, his mother Dawn Manche testified yesterday.

Daniel, who plays Tarzan as a young boy in the Disney musical, is at the center of a nasty custody battle being fought by his divorced parents in Manhattan Supreme Court."

Unfortunately, this is not an isolated case. It is the children who often bear the scares of a bitter divorce battle. In the best of situations, the parties agree that they cannot stay married, but work together to foster the best interests of the children.   However, in the worst of situations, the parties fight over everything, including the children. The children of a marriage merely become pawns in their parents’ battle. 

Minor visitation schedule modifications become epic battles; fights erupt over a drop-off and pick-up time for visitation. In the most egregious cases, one parent openly bad mouths the other parent to the children.  How could a child not become alienated or depressed? 

Every judge admonishes the litigants that the children have two parents and that the children have the right to enjoy the love and attention of both parents. It is sincerely hoped that parents put their differences aside and do what is necessary to support and foster relationships with their ex’s.   The alternative is, I am afraid, a country of depressed alienated children, who will one day promulgate their ills when they, one day, become parents.

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Memorial Day is the unofficial beginning of summer. But, from a family law attorney’s perspective, summer began a long time ago.

Some time before they purchase the sun screen, parents need  to make arrangements to plan for their children’s school vacation, summer camp and extended vacations away from home. However when the parents divorce and get to spend only a part of the summer with their kids, things can heat up real fast.

In order to facilitate a peaceful  summer, divorced parents will need to cooperate with each other. Unfortunately, as the temperature rises, so does the acrimony as the parents fight over who will be with the children for the month of July and who will be with the children in August.   If the parents cannot cooperate, rather than having fun under the sun with their children, they will spend the summer in a courtroom with their lawyers and a judge.

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