Articles Posted in Family Law

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During a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

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It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s oryour spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

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Residency requirements to obtain a divorce exist so that the person filing for divorce can’t simply choose the state with the laws they want, move to that state, and then sue for divorce. Those who move to New York without their spouses cannot immediately sue for divorce on the grounds that their marriages have irretrievably broken down. They must wait two years, at least according to at least one trial court in New York.  Whether Appellate Courts would agree and come to the same conclusion is an open question but this article will relay how the trial court came to it’s conclusion.

In Stancil v. Stancil, the court considered whether New York’s no-fault divorce statute created a cause that would reduce a divorcing spouse’s residency requirement from two years to one. In New York, either spouse must live in the state continuously for two years or continuously for one year when certain conditions are present. Under Domestic Relations Law § 230 (3), one condition for meeting the latter requirement is when the cause for the divorce happens within the state.

In the case, the husband lived in Virginia and objected to having a divorce in New York, since the wife had only lived there for 14 months before filing. The wife argued that the divorce could proceed in New York because the basis for the divorce was the irretrievable breakdown of the marriage, and this was a cause for the divorce that happened within New York.

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When a New York couple undergoes a divorce, it’s natural for their financial circumstances to change. After all,separating partners are moving from a single-household environment, to a situation where they each must pay their own bills, rent, and expenses.  Or as the couple moves apart emotionally, while still living together they might not be taking care of their financial obligations to each other and the household.  The divorce may draw attention to the fact that one spouse has expenses, such as a mortgage, that they are unable to afford by themselves, and pendent lite maintenance awards help that individual to cover their basic expenses and maintain a particular lifestyle until the divorce is formally settled. Commonly, in a Pendente Lite award, the spouse with the greater income might be required to provide monthly payments to the spouse with less income, or pay for certain bills. Pendente lite can also commonly apply to payments of attorney fees, child custody and temporary child support.

Determining the amount to be awarded in a pendente lite case can be complicated, as it depends on a number of crucial factors to be addressed by the court.  There is a formula for pendente lite maintenance that courts are supposed to follow or enumerate specifically why the court deviated from the formula.  Before the first enactment of the formula for Pendente Lite maintenance in 2010, which law was updated in 2015, the foundation for determining the appropriate level of pendente lite support, a court would look at the needs of the dependent spouse in maintaining a reasonable standard of living, as well as the means held by the supporting spouse, and the level of income required for each spouse to remain comfortable until the finalization of the divorce. Continue reading ›

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In a 2015 case, Matter of Rumpff v. Schorpp, a New York appellate court heard an appeal regarding grandparents’ rights. The petitioner was the father of two children. The respondent in the case was the children’s mother. Soon after the younger child was born, the Department of Social Services started neglect proceedings against both of the parents, claiming that their drug and alcohol abuse had caused them to fail in providing the children with adequate supervision and guardianship. They agreed to have the children live with their maternal grandmother, also a respondent in the appeal.

Later, the grandmother asked for sole custody. The parties stipulated to joint legal custody for the father, mother, and grandmother, with the children physically placed with the grandmother. In 2011, the father sought physical custody of the kids by filing a petition to modify custody.

The order continued the prior custody arrangement by the agreement of all the parties. In 2013, the father again brought a petition to modify, seeking sole custody. The family court granted him sole legal custody and physical placement. The mother was given parenting time, and the grandmother was given visitation. The grandmother, the mother, and the children’s attorney appealed this decision.

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CPS ( Child Protective Services ), ACS ( Administration for Children’s Services ), and Judges in New York make determinations to indicate or found cases regarding neglect andabuse of children in New York or whether these determinations should stand.  But, when these findings are challenged, when should an emotional neglect finding stand or not?  In the State of New York, the law dictates that emotional abuse, including neglect, can be defined by the omissions or acts made by caretakers or parents that result in serious changes to a child’s conduct, cognitive, mental, or behavioral functions. Parents have a responsibility to support the proper physical and emotional development of their children – failure to offer that support, either deliberately or passively, can be a sign of neglect. Under section 1012(f) of the Family Court Act, a maltreated or neglected child is an individual under the age of eighteen who has had their physical, emotional, or mental condition impaired as a result of his or her parents, or caretaker’s action or inaction. The minimum degree of care expected from parents or caretakers according to the New York law, includes:

  • Supplying the child with adequate education, shelter, clothing, and food.
  • Providing medical, optometric, dental, or surgical care.
  • Giving the child proper guardianship or supervision to reasonably prevent potential harm and risk when possible.

One example case drew attention to proof provided for the injuries that a child sustained as a result of neglect. The case determined not only that the condition of the child was legitimate, but also that it could not have occurred within a typical five-year-old, without the presence of neglectful behavior from the parent. In this particular case, the respondent mother was the primary caretaker of a five-year-old who consistently exhibited troubled behavior, an obscene vocabulary, and an obsession with deviant and explicit sexual conduct. Regardless of whether the respondent in question tutored her son towards this behavior, or allowed the traits to take place in an environment wherein she should have been exercising control, the case of neglect was made. Continue reading ›

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In New York, child support has a basic component, as well as an added component. The basic support is calculated first by looking at the initial $143,000(known as a “cap” which is current as of 2016) of combined annual parental income. The amount of the cap is adjusted every other year. Income includes gross total income, investment income, and various benefits, such as workers’ compensation, unemployment, or retirement benefits. After adding your income with your co-parent’s income, the court multiplies the total by a percentage per child, which is 17% of the combined parental income for one child, 25% for 29% for three, 31% for four or more, and no less than 35% for five or more children.  The non-custodial parent pays their percentage share of this amount (pro-rata share).  If your combined income with your co-parent is greater than this $143,000 cap, the court may look at whether there should be additional support for the amount of combined income that exceeds $143,000.

However, if you and your co-parent’s combined income is more than $143,000, you can get additional child support beyond what that cap allows if you can establish certain factors known as “paragraph f” factors. The court can use the same formula of taking 17% or the appropriate percentage, or it may make adjustments to the amount of the add-on according to its analysis of the factors.

These factors include the financial resources of you and the other parent and child, the health of the child and any special needs or aptitudes (like learning disabilities), tax consequences, educational needs of one or both of the parents, the standard of living the children would have enjoyed had the parents stayed together, a determination that one parent’s gross income is substantially less than the other’s, any needs of other children for whom a non-custodial parent is providing support, extraordinary expenses like international travel, and other relevant factors. For example, DRL § 240 (1-b)(c)(4) provides that if a custodial parent is either working or going to school in order to be able to work and incurs child care expenses as a result of this, the court can determine reasonable child care expenses to be prorated in the same proportion as each parent’s income is to the combined income. The pro rata share of the child care expenses are separately stated and added to the basic child support as an add-on.

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During a divorce in New York, there are a number of subjective steps that may be taken to pursue the best interests of a specific party. However, at the same time, the presence of the New YorkDomestic Relations Law in any divorce taking place throughout New York and Long Island means that certain restrictions will automatically be implemented in any case. These automatic orders, which are served in a notice to be included with the summons delivered at the outset of the case, are designed, among other things, to maintain certain status quos and preserve whatever marital property may be subject to equitable distribution within a typical divorce.

While understanding all of the complex facets of divorce can be difficult, it’s important to note that the automatic orders that are included within any divorce procedure are mandatory, and a failure to comply with these orders may be regarded as contempt of court according to domestic relations law, and the uniform rules of trial courts. As I have worked alongside many individuals and couples in numerous divorces during my time as a family lawyer, I have become familiar with the automatic orders that bind both spouses during a New York Divorce proceeding. However, I find that it’s often helpful to advise individuals undergoing the divorce procedure that the orders will remain in full effect and force during the pendency of the action, unless modified, terminated, or amended by a further order issued by the court, or through a written agreement that has been approved by both parties. Continue reading ›

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Restraining Orders for protection of a person in New York Family Law are called Orders of Protection. It’shelpful to know the proper legal names under each state of what it is people are seeking.  Restraining order and orders of protection (aka protective orders), for example, can mean different things.

Orders of protection in New York may be granted to protect the alleged victims of crimes as part of a criminal case against the accused perpetrator. But, without a criminal prosecution going on, if people are “family” such as: blood relations, share a child in common, are defined as family under the law, members of the same household or in intimate relationships, orders of protection are possible to require a person to stay away from another or refrain from communication or doing certain acts against the protected party. Sometimes people simply want orders of protection but do not wish for the alleged abuser to have a criminal case against them. Please see my other blog entries and website for more information about Family Offenses, and Orders of Protection in family law and divorce cases. I have represented many alleged victims and at other times people accused in connection with order of protection matters. Continue reading ›

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In the courts of New York and Long Island, as well as legal institutions throughout the world, it’s notuncommon for legal terminology to leave parents confused when it comes to matters of custody. Indeed, in some cases, parents or guardians may be left feeling uncertain about the level of custody they have – and what certain orders imply regarding their decision making authority in reference to their children. Some people even suggest that the statutes employed in New York are harder to understand than those in other states, as they do not necessarily make direct reference to physical or legal custody, but only the word “custody” which can be taken to mean the concept of total custody over a child or children. However, although it can be difficult to understand, most New York custody orders I have been involved with, have addressed the varied aspects of custody, from legal and physical custody, to sole and joint orders, even if the terms aren’t easy for parents to follow.

More often than not, in New York courts, the term “joint custody” will refer to joint legal custody. I try to ensure that my clients know this when going into a case, as legal custody is significantly different to “physical” custody. Legal joint custody implies that both of the parents involved will have the right to decide upon important issues regarding their child – such as educational or medical matters. When a divorce or custody resolution is amicable, parents may voluntarily agree to a joint custody agreement and a judge will almost invariably approve it. However, most New York courts will not force joint parenting on a family. Indeed, when parents must approach the court to have a judge determine what is best for the custody of a child, the implication is that the couple does not get along well enough to make decisions together that are appropriate for their child. Continue reading ›

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