New York Divorce Report - New York's Divorce and Family Law Blog

Time is money, at least when figuring out which parent is responsible for paying child support in New York.  As a result, a wealthy parent, who has custody of the children a majority of the time, does not have to pay child support to the other poorer parent.

In the case of Rubin v. Della Sella, though the father was granted custody of a child 56% of the time and the wife 44%, the trial court opined that the mother was not precluded from having the father pay child support.  The Appellate Division reversed the trial court’s decision.

According to the Appellate Court, New York’s child support statute makes it clear that despite any economic disparity between parents, only the "custodial parent," defined as the parent who has the child for the majority of the year, is entitled to receive child support.

In order to identify which parent has the child the majority of the time, the test is to simply count the number of overnights each parent spends with the child.  Since the father had the child 56% of the time, the parties did not have equal time with the child;  the father was the custodial parent and did not have to pay the mother child support.

Income has been the decisive factor in cases where the parties have the children an “equal” amount of time.  It has long been the common law rule that the parent with the higher income was deemed to be the noncustodial parent for child support purposes.  

Now, time will tell if parents will now be coming all settlement negotiations with a running tally of their overnights with no one willing to take less than the majority of the overnights.     

Should two people who are physically, emotionally and economically uninvolved biologically parent and raise children together?   Abbey Ellin explores this very issue in her New York Times article Making a Child, Minus the Couple.  

In her article, Ellin explores the “new breed of online daters, looking not for love but rather a partner with whom to build a decidedly non-nuclear family.”   Specifically,  these individuals are using social networking web sites, like PollenTree.com, Coparents.com, Co-ParentMatch.com, and and MyAlternativeFamily.com,  to have children in a way that is an “alternative to surrogacy, adoption or simple sperm donation.”

This new breed of social networking brings together two relative strangers, each wanting a child to co-parent. Unlike the situation where a decision is made to have a child resulting from an accidental pregnancy, this new “dynamic” is solely premised on creating and raising a child, seemingly without the trappings of a relationship.  

The perils seem obvious.  Unlike a sperm donation, co-parenting a child binds and forever intertwines the parties’ lives together.  The impact of having a child is far reaching and may not seem readily apparent to the prospective parents. 

For instance, an oft litigated issue in two household families involves relocation.  Suppose one of the co-parents wanted to move with the child from New York cross-country, the other parent could, potentially, prevent the re-location if the move was not found to be in the best interest of the child.   This could, in effect, prevent the parent seeking to move from accepting a prospective job or promotion, moving in with a spouse or moving simply to be near other family members.

Put aside the relocation issue, other custody issues need be addressed; what will access schedule to the child be?  How will decisions regarding the child’s health, education and religion be made?

The issues could become even more unwieldy if one of the parents has additional children from this untraditional arrangement or if the child has special needs. 

Then, there are the economic issues.  How will the child be economically supported?  In New York, for instance, the “non-custodial parent” is required to pay child support, which is a based on a guideline percent of the parties’ incomes, together with additional sums for child care, unreimbursed medical expenses, extra-curricular activities, private school, college etc.  Will these guidelines be applicable? Will life insurance be required to secure the child’s financial future if one of the parents dies?   Who will get to take the child as a deduction on income tax returns?

While many married couples fail to consider all these issues before having children, the children are not the product of strangers.  There is or, at some point, was a “commonality” or some unifying bond between parents.   Most couples do not wed and have children with the expressed expectation of living separate lives. 

A child’s racial appearance can be considered to establish paternity declared a Rochester Family Court judge.  In doing so, the Court ordered a DNA test to establish the paternity of two children who appeared to be bi-racial, born to a married Caucasian couple; the petitioner seeking to establish paternity was an African-American man.

While there is a strong presumption that a child, born to a wed couple is the natural child of the couple, the presumption is rebuttable.  Apparently, the child’s racial appearance may be a factor to rebut the presumption.  In reaching its decision, the court noted that while there is ample case law for providing that “appearance” cannot be considered in determining paternity, there is no case law preventing a court from considering the child’s race.

While the white husband was identified on both children’s birth certificates as the father, the petitioner had regular visitation with the children and paid child support to the couple.  The petitioner sought to establish paternity after he realized that absent an order declaring him the children’s parent, the married couple could unilaterally cut off all access to the children.  The children apparently had a complexion noticeably darker than the couple identified as their birth parents and their sibling, who was natural child of the married parents. 

In ordering the paternity test which the court noted definitively establishes paternity, the court stated:

 the adults' history of behavior all points to a likelihood that [the petitioner] is the biological father of the subject children, and the children's behavior indicates they understand that he is their biological father to the extent children are able to do so. . . .  If [petitioner] were not in the picture, the girls would still have to recognize—at some point—that either Mr. G. or Mrs. G. is not their biological parent. The court has no magic wand to change these realities.

Given the unique set of facts where the African–American petitioner, seeking to establish paternity, had an existing relationship with the bi-racial children, had an established access schedule,  and was paying child support to the “legal” Caucasian parents, the children’s racial appearance probably was not the determinative factor in the Court’s decision.  I suspect that had the petitioner been a stranger to the children, the court would not have ordered DNA testing.   That the children racially resembled the petitioner was consistent with the parties’ conduct and merely provided another reason to conduct the paternity test

A joint physical custody arrangement enables the children to spend time with both parents. This type of arrangement is generally in the best interests of the children, particularly when the parents are cooperative and willing to co-parent their children. Though a custodial time share may be a desired arrangement, it is not a solution that lends itself to every case. In some in some cases this joint physical custody should never be considered

Here are five situations when an equal time sharing should never be considered.

1. The parties are not close to each other geographically.

 When the parties do not live within close geographic proximity to each other, joint physical custody may not be feasible. For example, though sections of New York City and New Jersey are only miles apart, it would not be desirable to force children to commute during rush hour to school. The problem is exacerbated when the parents live even greater distances from each other.

 In these situations, joint physical custody would not be feasible, particularly during the school year. One solution is to have the children reside with one parent when school is in session, and use the summer break and other extended vacation periods to equalize the other parent’s time with the children.

 2. Where one parent is overly controlling.

When one parent does not play well in the sand-box, the flexibility required to enjoy shared physical custody is lacking. Consequently, a more traditional parenting or visitation arrangement may be in order.

 3. In cases where there is a history of drug or alcohol abuse or activity not suitable for children

4. In cases of domestic violence.

 For patently obvious reasons, it would be patently improper to place children in an environment where there has been a history of drug, substance, spousal or child abuse. If an addicted or abusive parent’s is granted access to children, access should be extremely limited and only in a supervised setting.

 5. In cases where the parents cannot communicate.

Co-parenting requires the both parents to communicate. With children’s schedules constantly changing, the access schedules as well as the pick-ups and drop offs cannot be written in stone. If the parents cannot work together, a joint custody arrangement would likely fail.

In cases involving children in New York, custody is often an issue. Child custody is much more complicated than the basic “the children can live with me and you can have visitation” scenario.

In its most basic form, custody can be broken down in to two broad types: physical or residential custody and decision making.

Physical custody refers to the amount of time each parent is permitted to spend with the children. Physical custody is now more commonly referred to as parenting time or access time.

There are two types of physical custody- sole custody or joint custody. I have found that the trend is away from sole custody, where the children reside primarily with one parent, towards joint or shared physical custody. In a joint custody situation, the children split their time between their parents’ homes. Joint custody should be considered in cases where both parents are cooperative, “functioning” and involved in their children’s lives.

In splitting the times between the parents’ homes in a joint custody situation, consideration of the number of transitions from one parent’s home to the other’s must be balanced against the time separate and apart from a parent. An alternating night schedule would maximize contact with each parent, but would have dizzying number of transitions. On the other hand, a schedule of two consecutive weeks a month with each parent would result in long stretches between seeing the other parent. The access time should be crafted based upon the ages and maturity of the children and everyone involved schedule.

The other side of custody is legal custody or decision making, i.e., how are decisions regarding the children’s health, education, religion going to be made. Like physical custody, decision making can be shared or one parent can have sole decision making power. While joint decision making prevents one parent from unilaterally imposing his/her will on the other (which becomes significant when one parent enrolls a child in an activity against the other’s wishes and then demand a contribution to pay for it), it can also lead to stalemate when the parents cannot reach an agreement.

In some instances, where one parent has a particular field of knowledge, that parent may be allowed to make decisions within his/her particular sphere of knowledge. For example, a parent who is a physician could be allowed to make medical decisions for the children.

Clearly, child custody has evolved from the traditional mother has custody and the father visits the children every other weekend model. Each issue and every possible solution opens up another can of worms, potentially derailing a just settlement which requires skilled and creative counsel to resolve.

Some parents just do not get it; interfere with the other parent’s visitation or attempt to alienate the child from the other parent and risk losing custody of your children.  

In Barrington v. Barrington, a mother was not satisfied with sharing joint custody of her children.   Instead, as the court found at trial:

 the mother persistently engaged in a course of conduct calculated to frustrate the father's efforts to have a meaningful relationship with the son. In particular, she repeatedly refused to allow the father mid-week visitation with the son and, on one occasion, unnecessarily involved the police in an argument that she had with the father when he was returning the son to her after a visit. She also sought to align the son with her in her dispute with the father, even though she was well aware that such conduct was clearly not in the child's best interests

Given the mother’s conduct, the Court granted the father custody of the son.  

The courtrooms of New York’s Family Court are supposed to be open to the public, but, in practice they are not.   William Glaberson recently reported in The New York Times that the courtrooms are often off limits to all but the litigants and their attorneys.

The Florida Divorce Blog commenting on the Time’s article, enumerated some of the ways in which access to the courtroom is limited:

•  Courtroom doors are locked;
•  Do Not Enter and Stop signs are posted on courtroom doors;
•  Signs are posted proclaiming that only people on official business may enter; and
•   Guards challenging those seeking entrance to courtrooms.

My experience in Family Court is that until a case is called, the litigants must wait outside the courtroom in a waiting area.  Only the parties and their attorneys are allowed in the courtroom. 

That the Court violates its own rules is indefensible. A judicial tribunal should not be allowed to arbitrarily select which rules are to be enforced and which may be ignored.  What kind of example does that set for the litigants whose cases the courts are adjudicating?  Can some laws simply be disregarded without consequence? 

On the other hand, is the denial of access to family court proceedings really a bad thing?  The often gut wrenching issues in Family Court involve intimidate details of families in distress; the Family Court hears cases involve domestic violence, child abuse and child custody.  The litigants should have the right to some privacy and not to be compelled to air their dirty laundry to anyone who is simply curious to listen. 

Absolute rules – requiring, on one hand, completely open the courtrooms and, on the other hand, justifying justice shrouded in secrecy –don’t work.  Clearly, there has to be some transparency to the system.  While there are rules of procedures in place, there has to be transparency to ensure that the rules are followed to prevent the “system” from running roughshod over the rights of litigants. Nevertheless, the need for the system’s transparency has to be measured against the families’ need for privacy.   

As long as there is a rule requiring that the courtrooms must be open and accessible to the public, the rule should be enforced.   A judge, however, should have the discretion upon a litigant’s request or when taking testimony of a sensitive nature to close the courtroom.

While I was on a hurricane shortened vacation, an New York court modified a joint custody arrangement and granted a father sole physical custody of a child in a case where the mother unreasonably interfered with the father’s visitation.

As detailed in the Rochester Family Lawyer Blog, the mother in Keefe v. Adams interfered with father’s visitation by:

• Relocating 42 miles away from father, without informing him; (The relocation required the child to change schools.)
• Consistently arriving up to two hours late for drop off and pick ups;
• Promoting her boyfriend as substitute for child’s father; and
• Using the drop off and pick ups of the child as an opportunity to berate the father in front of the child.

The Court rightfully concluded that the mother’s conduct was detrimental to the child and indicative of her unwillingness to foster a strong relationship between the child and the father.   On the other hand, because the father “manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child,” the Court granted the father physical custody of the parties’ child.  

Post-divorce relocation cases, where one parent seeks to move with the children of a marriage to a distant locale, present what has been called “some of the knottiest and most disturbing problems that our courts are called on to resolve.”

The relocation pits one parent’s desire to move for familial, economic, romantic or employment reasons against the other parent’s desire to have an unimpeded relationship with the parties’ children.  

Recently, the Appellate Division, in Matter of Alaire K. G. v Anthony P. G., was forced to weigh a mother’s desire to move to California to be with her new husband against the father’s desire to have regular and frequent access time with the parties’ son in New York. 

As enunciated in leading case  Matter of Tropea v Tropea, the ultimate question is "what outcome is most likely to serve the best interests of the child." 

Among the factors the court must consider are: (1) "each parent's reasons for seeking or opposing the move," (2) the quality of the child's relationship with each parent, (3) the impact of the move on the child's future contact with the noncustodial parent, (4) the degree to which the move may enhance the custodial parent's and child's life economically, emotionally and educationally, and (5) "the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”

In Alaire, the parties were divorced in 2006.   The mother was granted custody of the parties’ son, then 2 years old.    In 2008, she met her new husband, who accepted a job in San Diego.   The mother attempted to mediate the terms of the relocation, but the father refused to sign the agreement.   According to the opinion, the mother’s plan to move became “irreversible” so she left for California without her son.   The son lived with the father, in New York, until 2010, when the Family Court approved the mother’s application to relocate with the son.

 Though the dissenting judges were persuaded that mother put her desire for a romantic partner ahead of her son’s welfare by seeking to move the child 3,000 miles away from his father, the majority concluded the move was in the child’s best interests. 

 Among the factors relevant to the majority were:

1. The child would be raised with his half-brother, born in 2009, to the mother and her new husband.
2. The mother’s new husband was employed and had health insurance; the father apparently had been injured and was unemployed.
3. The mother was required to pay for air travel for the child to be with the father for extended weekends and holidays. 
4.  The Court concluded that the schools in California were as good, if not better, than those in New York and, because the wife’s new husband was a veteran, the child would be entitled to attend a California state university free of charge. 

This unfortunate case highlights the complexity of a relocation case.   Each relocation case must be considered on the merits of the relevant facts, with the predominant emphasis being placed on the outcome that is most likely to serve the best interests of the child.  

In almost every case involving children, one parent says, “I want joint custody.”  When asked what they mean by joint custody, a puzzled look comes across the client’s face as they seek to avoid directly answering the question.  So, what exactly is joint custody?

Custody can easily be broken into two components:  physical custody, and decision making.   Physical custody refers to where and when the children will be with a parent. Decision marking generally refers to who is going to make the major decisions regarding the health, education and welfare of the children. 

 As Eory points out, indeterminate language in a custody agreement, like the commonly used  phrase “liberal and reasonable parenting time”, are a recipe for trouble since the absence of detail will lead to misunderstandings, disagreements, disappointments and in some cases, a litigation to establish that which should have been fashioned in the first place.”

While joint decision making generally refers to the major decisions regarding the children’s health, education and welfare, issue arise as to the distinctions between what is major decision as opposed to one that is routine. 

 Standing alone, “joint custody” does nothing to resolve such issues, much less create a mechanism for resolution if a dispute arises.

If decision making is shared, do the parents have to merely consult with each other or actually agree?  What happens if there is no agreement?  How are disagreements resolved?

While joint custody arrangements are desirable to maintain joint parental involvement in the rearing of children, it does not mean that details of the custodial arrangement should be deferred from the time to divorce to some future date when disputes arise.  A successful joint custody arrangement forces the parents to thoughtfully work out an access schedule and a method of decision making long before disputes arise, so as to avoid future issues.  

In a highly unusual move, a judge ordered a mother jailed for interfering with husband’s visitation with his children.

In Lauren R. v Ted R. Justice Robert Ross ordered to the mother to report to jail for repeatedly violating the terms of the court orders regarding the father’s parenting time. The mother’s imprisonment coincides with the father’s scheduled visitation with the children.

The Court’s opinion details instance after instance of the mothers deliberate and willful attempts to alienate the children from the father, including false reports of child abuse, bad-mouthing the father in the presence of the children, and deliberately scheduling theater tickets, family events and social activities for the girls during the father’s visitation.

The New York Post reported that as a result of the mother’s efforts the children now hate their father. "They tell me I'm strictly their biological father," Ted Rubin, the father said, "and their stepfather is their real father."

In the past, courts have ordered a change of custody when one parent interferes with the other’s parental rights. In this case, the mother apparently succeeded in destroying the father- daughter relationship. In doing so the mother violated repeated court orders regarding visitation. The mother has to be penalized in a way that she is forced to learn that Court orders have teeth and can be enforced. Jail time for her contempt of court may be the only punishment she understands.

On the other hand, the mother’s imprisonment is not going to endear the father to his daughters. It seems inevitable that the girls will continue to blame the father for putting the mother in jail.

New York’s highest court, the Court of Appeals, granted a non-adoptive or biological parent visitation with her former same sex partners’ child. In a very narrow ruling, the Court in the case Debra H. v. Janice R., held that only biological or adoptive parents can seek visitation or custody of children.

The parties, Debra H. and Janice R., entered into a Vermont civil union in 2003. A month later, Janice R., who was artificially inseminated, gave birth to M.R. Janice denied Debra’s requests to adopt M.R. and their relationship soured. When Janice refused Debra’s efforts to have visitation with M.R., Debra commenced an action seeking visitation.

Applying New York law established in the case Alison D. v. Virginia M., the Court declined to extend parental rights to persons who are not the biological or adoptive parents of the children.

In doing so, the court expressly declined to establish criteria for parenthood in relationships in which one partner or spouse is not the biological parent, saying a more flexible standard could invite claims of parental rights by people who have no business raising them.

Parents could not possibly know when another adult’s level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party. . .

In sum, Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of "disruptive . . . battle[s]" (Jacob, 86 NY2d at 659) over parentage as a prelude to further potential combat over custody and visitation.

Though neither the biological or adoptive parent, Debra H. was granted parental rights because the parties had entered into a civil union. The Vermont civil union law requires that “all the same benefits, protections and responsibilities under law” of marriages be accorded in civil unions.

This decision, in effect, established two sets of standards for children of same-sex couples: one set for those born to couples with a legally recognized relationship, and another for those born to couples without legal recognition. In the absence of a legally cognizable relationship, the party must be either the adoptive or biological parent to acquire parental rights. A non biological or adoptive parent in a civil union or, perhaps, marriage, may acquire rights by virtue of the relationship.

As difficult as divorce is for the parties, it is far more traumatic for the children. When parents divorce, every aspect of the children’s life is up-ended as they watch their parents prepare to go to war against each other.

Children, who should enjoy the unconditional love and affection of both parents, may be drawn into the battle as their loyalty is tested. A showing or expression of affection for one parent could be taken as a sign of betrayal to the other. Children must stagger through an emotional minefield while their parents battle.

Although it seems like common sense, in order to minimize the children’s battle scars, parents need be mindful of the messages they are sending to the children. In particular, they need be cognizant of not only what they are saying, but how they are saying it. Of course, some subjects are just off limits.

The Texas Family Law Blog offers an instructive guide of things not to say to children and I have interposed my thoughts.

1. Do not say “Nothing is going to change.”

Be honest with you children and don’t lie. The truth is probably everything that matters to the children is going to change- the children’s relationship with each of their parents is going to be different. The family will no longer be intact and the children may even have to move and change schools. The economics of the family may change.

Perhaps offer that change offers new opportunities and that change does not have to be bad.

2. Do not talk negatively about the other parent to the children.

Though you may be tempted to vent your frustration to your children, don’t!
If your spouse is unloving, cheap or selfish, in time your kids will figure it out on their own. In the interim, the children should be directed to love and respect both parents

3. Do not blame the divorce on the children or your spouse.

Divorce is never just one person’s fault and it is certainly not the fault of the children.

4. Do not discuss the details of the case with the children.

There is no reason for the children to know the details of the divorce. Court documents should not be left on the kitchen counter for children to pick up and casually read.

5. Do not use the children to spy on your ex.

When the children come back from visiting your ex, don’t interrogate them on what the ex said about you or what they did. They children should not be your messenger or your spies.

6. Do not  argue with your ex in front of the children.

Children have two parents. They are entitled to share the love and affection of both. In the end, parents should not do anything to prevent that from happening.

 

A non-custodial parent is not stripped of his parental authority simply because he is not empowered to make decisions regarding the health, education and welfare of his children ruled an Albany County Family Court judge.

Judge W. Dennis Duggan dismissed a contempt proceeding, against a non-custodial father who had changed the dosage of his fifteen-year-old daughter's medication during his parenting time. The father, a doctor, believed that his daughter’s prescription was inappropriate.

Judge Duggan stated that "While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant."

. . . .Furthermore, he stated that the parent who is caring for a child, whether or not he has sole custody, "has a residual authority to make decisions in the child's best interest that are called for by the immediate circumstances--even if those decisions might overlap with or intrude upon the other parent's 'sole custody' authority.

Rather than unilaterally taking it on himself to change the prescription, the father, with the benefit of hindsight, probably would have been better off, at least demonstrating that he, at least, consulted with the mother and the child’s treating physician before unilaterally acting. That said, over-medicating a child is an exigent circumstance, requiring immediate action.

Regardless, it is still refreshing to see a court recognize that a non custodial parent’s voice and opinions must be heard in connection with important decisions regarding his children’s health and safety. Though not legally empowered to make decisions, the non custodial parent still possesses the duty to protect his children’s best interests.
 

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.”
 

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.
 

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. 

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

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.

. . . .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.

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.

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.

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.

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.

            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.

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.. 

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

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.