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The law in New York is that a non-biological, non-adoptive parent does not have standing to proceed in a court for custody or parenting time.  There is, however, a statute that allows grandparents standing to petition for custody and visitation under certain circumstances, which I have previously blogged about.  In Debra H. v Janice R., 14 N.Y.3d 576 (N.Y. 2010), New York’s highest court, the Court of Appeals reaffirmed its rule that neither parents by the doctrine of equitable estoppel or people standing “in loco-parentis” to a child has standing to seek custody and visitation or parenting time in court.  The rule would be then that biological strangers that have not adopted a child cannot proceed in court in New York for custody and visitation.

Still applying this precedent, though, two different cases decided in different parts of New York, ended up with different results.  In one, the same sex partner was allowed to proceed with her custody case, in the other a domestic partner was found not to have standing.  The law was re-iterated in the Fourth Appellate Department, which covers part of upstate New York just this year, in 2015 in the case of Matter of Barone v Chapman-Cleland, 129 A.D.3d 1578 (2015) which stated that biology or adoption under our current statutes define what a parent is and stated that any change of this needs to come from the legislature.  In that case a same sex partner to a biological parent tried unsuccessfully to proceed in court on a case of custody and visitation.  The court ruled that this former partner did not have standing to proceed in court as a biological stranger that never adopted the child, despite the possibility that the person was very much like a parent to the child.  Continue reading ›

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 Mediation is one of the most popular legal solutions available when it comes to negotiating the terms of a divorce. As I have stated in various blog posts before, I myself am a huge advocate of divorce mediation (and collaborative law) when it comes to settling disputes between couples that are willing to take an alternate route. For the process of divorce mediation to work as it should – both of the parties involved in the case must have some willingness and exert at least a little effort. Mediation is a voluntary process, and neither party can be forced into it – making it a highly different approach to litigation or the adversarial divorce case.  Most likely, the couple pictured above, however, would benefit by utilizing some of the tips contained within this blog.  Please consider the picture then, advice on what not to do.

In the traditional court centered divorces, a divorce proceeding can be started within the court without the consent of the other party, as one side and their lawyer will draft the initial pleadings, file them, and serve them to the other side. In New York, the other spouse involved will then have twenty days to “appear” within the case, which then makes both sides participants in the adversarial divorce. If your goal is to settle your divorce case “amicably”, then mediation is potentially the best route to pursue. In divorce mediation, yourself and your spouse – or in certain cases, the two of you and respective lawyers, utilize a mediator that will help you to resolve and discuss the issues in your divorce. Though the mediator will not make your decisions for you, they will serve as a facilitator to help you determine what is best with your spouse. Continue reading ›

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The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00.  The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law.  If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.  Continue reading ›

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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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It’s important to recognize that step-parents are a common and familiar part of everyday life, and just like their partners, everyone may want to know their legal rights and responsibilities regarding their step-children. Over time, many step-parents who spend time with their step-children develop a strong attachment and commitment to those youngsters – taking responsibility for them on a moral and financial level. However, somewhat crucially, a step-parent doesn’t automatically receive standing in New York to ask a court for custody or parenting time rights if a mother and father are already legally established. Step-parents do not instantly receive the “parental authority”, including the rights, powers, duties, and responsibility of a biological mother or father, simply because they marry the child’s mother or father. Step parents do not gain parenting time and visitation rights except if they are legally appointed guardian, adopt or if there is a paternity finding for the step-parent.

Step-parents may be required to pay for child support, while married to the other parent of the child (ren) if the children involved are in danger of becoming “public charges”. Frequently, this information can act as an incentive to prompt parties into getting a divorced finalized, if other compelling reasons haven’t presented themselves. If the children are not in danger of becoming public charges, usually step-parents are not in danger of becoming obligated for child support of their spouse’s children, that is, unless they become a parent by the legal doctrine called equitable estoppel. Continue reading ›

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The New Significant Other and Child Support

Last week’s blog article was about child custody and the new boyfriend, girlfriend, husband or wife. Like with child custody, I frequently get inquiries and new cases about child support when there are new significant others. As always, people should keep in mind that there are different processes available to deal with child support, like other family law issues, such as mediation, litigation, negotiation, and collaborative law. Why is it that a new relationship might cause child support issues? Like with child custody, the reasons this happens with child support can vary and be complex ranging from emotional issues, such as jealousy, to what is actually supposed to be the focus of child support cases, financial matters.

From a legal standpoint, I think one of the more important reasons is that the gross income of the parent that has to pay child support (the non-residential custodial parent) is reduced before the guideline child support calculation is made, by support orders that are first in time or support that is actually being paid pursuant to a written agreement. The first in time support order could be for child support or alimony also known as maintenance. So, the need to address child support, when there is a new relationship, may simply boil down to a race to try to maximize finances. Continue reading ›

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The New Significant Other Phenomena

When it comes to dealing with visitation time, parenting rights, child custody, and child support – there are a lot of sensitive and complicated issues to consider. One set of situations I deal with somewhat frequently as a family lawyer within Long Island and in and around the City, are those that arise when a biological parent of a child – with rights regarding that child – gets a new significant other, or partner be it a girlfriend, boyfriend, husband or wife.

It’s a fact that is both inevitable and uncomfortable at the same time – when you engage in a divorce or break up with your partner, the chances are that you will eventually have to deal with your ex-partner getting involved with a new romantic interest. Likewise, life will go on for you and you too will find love again. Although this may not impact people who don’t have a child with their ex, it’s obvious that concerns can arise when a divorced couple have custody, visitation rights, and child support matters to consider. These issues can be sorted out through mediation, litigation, negotiations, or collaborative law. 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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Issues of conflict commonly arise when parties within a case find themselves intolerant of each other’s requests or opinions. When goals change, cracks can begin to form in relationships of any kind – from marriages, to parents and their children, colleagues in the workplace and more. When people think and act agreeably, there is an alignment that ensures dispute and conflict can often be avoided – however this is rarely the case in legal matters, particularly in regards to family law.

Unfortunately, the more conflict is allowed to grow, the more likely it is that such conflict will begin to cause serious problems – which can be a barrier to resolving a case and reaching an amicable settlement. The task of professional mediators, collaborative lawyers and negotiators is to utilize the right techniques in de-escalating conflict and resolving matrimonial and family law cases. Although this blog is mostly written with divorce mediation in mind, such techniques can also be useful in collaborative cases, and to a certain extent may have some impact on classic settlement negotiation or litigation. However, the adversarial model used within the court system often tends to escalate, rather than reduce conflict – leaving less room for resolution by agreement. Continue reading ›

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