Articles Posted in Family Law

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In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.

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Family Court Support Magistrates and Written ObjectionsThere are many complex nuances to consider when evaluating the hurdles and complications of family law – including cases that involve child support and spousal support. Typically, cases of support, are initiated when petitions are filed with your local New York family court, except divorces, which also can have elements of support, are done in the appropriate local Supreme Courts. Family Court support and paternity cases, are assigned to support magistrates. These professionals are responsible for hearing and helping to determine how support will be awarded. They have the power to grant or determine various forms of relief according to the Family Court Act, regarding proceedings that involve support, the enforcement of support, paternity, or matters regarding the Uniform Interstate Family Support Act. Within any applicable case, the support magistrate present will be given the authority to issue summons, decide motions, and deliver subpoenas according to section 153 of the Family Court Act, as well as deciding proceedings according to section 5241 of Civil Practice Law which involves income executions for support.

What Can Support Magistrates Do?

The part that a support magistrate will play in any given court proceeding will depend on the distinct and unique features of each case. For instance, in a proceeding intended to establish paternity, the magistrate must advise both the putative father, and the mother regarding their right to access counsel. In the same circumstances, the magistrate will advise the putative father and the mother of their right to request DNA tests and other genetic marker testing, however these tests are not always appropriate or ordered as detailed below if estoppel or similar circumstances apply. If a genetic marker test is allowed, from that point, the support magistrate will be given the power to determine all matters regarding that proceeding, including the delivery of an order of filiation which officially names a man the father of a child. An order of filiation can allow a father to file for visitation or parenting time with the child, custody of the child in some cases, and, if the father is the non-custodial parent, the responsibility of paying child support. Once the order of filiation has been issued, and child support becomes relevant, the support magistrate will be given authority to make a temporary and/or final order of support. Continue reading ›

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In New York, annulments are rarer than divorces. However, though they may be less common, the procedure is still available for partners so long as the correct legal grounds are present. Underlying the concept of annulment is the legal theory that the “marriage” to be voided, after the annulment, was never a valid marriage. Legally, marriages that have been annulled are regarded as “nullified” or “void” marriages, and the action to begin this procedure must begin at a certain time to be considered applicable. The time limit that applies to your particular circumstances will depend on the circumstances as well as other crucial factors.

An annulment is distinctly different to a divorce in that the legal procedure for divorce is used to terminate a marriage that was considered to be previously legitimate and valid under the eyes of the law. An annulment, on the other hand, becomes a declaration that the marriage was never legally valid to begin with. However, as in a case of divorce, annulment cases may permit the courts to award custody and parenting or visitation rights regarding the children involved in the marriage, and may require the payment of child support or other forms of maintenance. For instance, according to Domestic Relations Law, there are formulas for both temporary maintenance (support for the spouse while a matrimonial case is pending) and durational or permanent maintenance if any (support for the ex-spouse for some time period after the case is finished), and courts have some discretion to decide whether or not to order a maintenance award within any matrimonial action – including annulments. Continue reading ›

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Filing for a divorce, regardless of where you live or what the underlying circumstances may be, can sometimes require some thought to ascertain in which state in this Country you should file. There are rules to follow throughout almost every aspect of the case, from determining where you will be able to file for a divorce, to figuring out exactly who has the rights to what through equitable distribution. Before you can go ahead with filing for a divorce, regardless of the process chosen to sort out the issues to dissolve your marriage, be it mediation, litigation, or collaborative law, you must ensure that you meet the residency requirements for a divorce case to take place in New York. After all, throughout the United States, each state has its own jurisdiction, and you must apply for legal action in the State that applies to you.

Those who apply for divorce without meeting the residency requirements for New York may find that their cases are dismissed. To apply for a divorce within New York, it is crucial for at least one party to meet with one of the following requirements regarding residency as is outlined in the New York Domestic Relations law:

  1. The ceremony for the marriage of the couple seeking a divorce must have been performed within the State of New York, and at least one of the spouses involved had legal residence within the state of New York for at least one year continuously prior to the beginning of the action; or,
  2. Both spouses lived and held themselves as husband and wife within the State of New York, and one (or both) has been considered a resident for at least one year before the commencement of the action; or,
  3. The reason (grounds) for the divorce took place within New York, and one of the spouses has been a resident of New York for at least one year before the action commenced; or,
  4. The reason for the divorce took place in New York, and both spouses were residents of New York at the time that the grounds for divorce occurred; or,
  5. If both spouses were not married within the State of New York and were never living as a “husband and wife” couple within the state, or the reason for the divorce didn’t occur within the state, either spouse must have lived within New York as a resident for a minimum of 2 years before the case is filed.

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Fair Hearing when Challenging “Indicated Findings” by Child Protective Services or the

Administration For Children’s Services (CPS and ACS)

No matter what the reason behind a hearing may be, one thing that all of my clients should have access to is a fair hearing if they want it. The right to a fair trial is fundamental to the rule of law, and it applies to civil and criminal cases alike. The right to a fair trial or hearing requires a fair public hearing within a reasonable time by an impartial tribunal established by the law. This blog will cover exactly how a fair hearing should go when it is for the purpose of challenging an “indicated” finding by Child Protective Services.

So, if the case has proceeded to the scheduling of a hearing, that means a caseworker has investigated the case and made an initial determination that the case was “founded” or “indicated”. This means that they believed there was some credible evidence to believe that the allegations involving child neglect or abuse occurred. It also means that the person that was “indicated” or who the case was “founded” against made a timely request to challenge the finding. An administrative review happened after the timely challenge and the review did not overturn the initial indicated finding. Therefore the fair hearing is now scheduled. Continue reading ›

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Why the Rutherford New York Custody Jurisdiction Decision Makes Sense

Recently, well-known actress Kelly Rutherford was ordered by the New York County Supreme Court to return her children to their father in Monaco, where they had been living after the father lost his U.S. visa. Rutherford argued that she felt “lawfully” unable to remove her children from the United States so that they could live with their father in a foreign country. However, she complied with the order that was given by the judge, demanding that the children be reunited with their father and returned to Monaco. Under the facts of the case, the decision of the New York Court makes sense – despite the personal feelings expressed by Rutherford herself.

Uniform Child Custody Jurisdiction Enforcement Act

The case makes sense under the law since according to the Uniform Child Custody Jurisdiction Enforcement Act, New York would not have been considered to be the residential home state of the children in question. The facts suggest that instead the children were simply visiting the state, and their mother, after a California court issued custody to the father, Daniel Giersch, in 2012. If another country or state had not been given jurisdiction and the children were present in New York, then the New York Court may have been able to take up the case. However, as the case stood, New York simply did not have jurisdiction to allow Rutherford custody. Continue reading ›

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It is possible, under different scenarios, to discontinue a divorce, before it is finalized by the signing of the judgment. But how can it be done? The answer is found in the New York Civil Practice Law and Rules 3217 and corresponding case law that interprets it. What the law says is that for civil actions, in general (including divorces), an order is not required if no responsive pleading is served. But if no responsive pleading is required then it can be discontinued twenty days after the service of the original pleading. Otherwise a stipulation between the parties of discontinuance would need to be made or a court order for the same made.

So, what does this mean and how does this apply to divorces in New York? Divorces can be initiated by the filing of a document called a Summons with Notice (a complaint can be served with it in the beginning but often is not). Eventually a complaint needs to be drafted and served; however, sometimes this does not happen in a divorce for some time or even not until just prior to the submission of the judgment. If a complaint is not yet drafted and served, then the law seems clear that the initiating party can usually withdraw by their own accord. Less frequently, however courts have found, that the person waived the right to withdraw after lengthy proceedings and it would be inequitable, like in the case of Minkow v Metelka, (46 AD3d 864 [2d Dept. 2007]) where there were substantial court proceedings and the parties included a waiver of the right to discontinue at the Preliminary Conference despite not serving a complaint. If a complaint is served, and the defendant serves an answer, then the divorce can be withdrawn only by a stipulation signed by both parties or an order of the court. Continue reading ›

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Egregious conduct affecting equitable distribution in divorce

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds. Continue reading ›

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In New York family law, often whether or not travel by one parent to a foreign nation with the child(ren) should be permitted is an issue that arises. I often look to whether the other country is a signatory to the Hague Convention or not when looking at the issue. The Hague Abduction Convention in law is a form of treaty or accord that was developed by the Hague Conference. Treaties are a method of establishing international law. The concept offers a method for returning a child who was taken from one country that is a member of the Hague convention, to another. In other words, the purpose behind the convention is to offer protection to children against the potential damage that may be caused by international abduction by another parent or other person, prompting the quick return of any children involved back to their habitual residence country. The convention also helps to secure and organize the rights associated with access to a child in parental time or visitation.

The concept centers on the fact that matters of custody and visitation should be determined by the court in the residential or habitual country of the child, meaning that the Convention champions the best interests of the child, and provides the opportunity to access a civil remedy that is shared with the other member nations. Legal parties use the Hague Convention to preserve an existing child custody arrangement that was created before the child was wrongfully removed from a place or circumstance. This deters parents from crossing over international boundaries in an attempt to avoid the court orders of the home nation. Individuals often wonder why they may need to access the convention if they already have an order of custody, and the answer to this is that, firstly, alternative countries may not recognize New York or United States court orders. Continue reading ›

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Special Immigrant Juvenile Status in New York                                                         

 

Immigration and family law come together in this area of law. Some children living in the U.S. without a legal immigration status may need to access humanitarian protection for reasons of abandonment, abuse, or neglect. Special Immigrant Juvenile Status (SIJS) is a classification that may allow for vulnerable children to apply for permanent and lawful residence in the United States. To qualify for SIJS, the child must meet the following criteria:

  • Applicant must be under 21 years of age
  • Applicant must be unmarried
  • Applicant must be declared dependent within Juvenile court (this is where a family law attorney can be of assistance)
  • Reunification with one or both of the applicant’s parents must be considered not viable due reasons of neglect, abandonment, abuse, or a similar basis under the law
  • The court must determine that it is not in the best interests of the applicant to return to their last country of residence, or country of nationality.

There are numerous benefits to obtaining Special Immigrant Juvenile Status. Firstly, SIJS waives numerous forms of inadmissibility that could otherwise restrict an immigrant from establishing themselves as a permanent lawful resident. SIJS waives working without authorization, unlawful entry, certain immigration violations, and status as a public charge. Applying for SIJS requires the consideration of numerous steps, with the help of a trained attorney.

A juvenile court is the court within New York that has jurisdiction under the law to make determinations regarding the care and custody of children. In many states, this can refer to delinquency cases, dependency cases, or probate and guardianship matters. Continue reading ›

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