INTRODUCTION BASIC INFORMATION FOR MATRIMONIAL AND FAMILY LAW PROCEEDINGS You may only represent one party in matrimonial or family law proceedings. It is very bad practice to even have an unrepresented party in your office. The presence of an unrepresented litigant can only cause trouble at a later time, when he or she decides to complain to the disciplinary committee or the court that you represented both spouses in a matrimonial proceeding or both parents in a family law case. There is no requirement that each spouse retain an attorney in an annulment, separation or divorce case. You can represent one party and prepare documents to be signed by the other spouse. Any correspondence to the other spouse should clearly state that you are not representing the recipient of the correspondence. You also need to make sure that your retainer is very clear as to what the charge is for an uncontested or contested divorce. Many times a client will come to you and state that the divorce is uncontested in order for you to quote them a lower fee. Sometimes the spouse believes the case will be uncontested while at other times, the client does not truly understand what the words “contested” and “uncontested” really mean. A divorce is considered contested if the parties are not in agreement as to all of the issues. Just because the parties agree that they both want to be divorced does not always mean the divorce is uncontested. Often they may be in agreement as to some issues while disagreeing as to other issues. Make sure during your initial consultation with the client that you are able to ascertain whether the parties are in agreement as to all issues prior to having a client sign a retainer for an uncontested divorce.

With the exception of paternity cases, it is rare in a Family Court case for the parties to be in agreement as to all the relief being requested. Notwithstanding the foregoing, many Family Court cases result in a settlement once the parties appear in court. I JURISDICTION DRL § 230 provides the requirements of residence for litigants to obtain a divorce in New York. Before an attorney decides to take a matrimonial case, the first question should be whether the residency requirements have been satisfied for the court to entertain the action for divorce. Unless both parties are residents of New York State at the time of the commencement of the action and the cause of action occurred in the State, at least one of the parties must have resided in New York for a period of at least one year immediately prior to the commencement of the action to satisfy any of the other possibilities to retain jurisdiction. The statute states the following: DRL § 230. Required residence of parties. An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when: 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

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4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

You must inquire of any potential client as to where the parties reside at the time of the commencement of divorce. Even if you have satisfied DRL § 230, you still may not have rem jurisdiction for the court to decide property issues located in another state if there is no consent to jurisdiction by the out-of-state litigant. See Kindler v. Kindler, 60 A.D.2d 753 (4th Dep’t. 1977). Courts with personal jurisdiction over the parties have equity jurisdiction over the out-of-state realty. See Johnson vs. Johnson, 68 A.D.3d 1685 (4th Dep’t 2009). Jurisdiction in the Family Court is much more complicated than Supreme Court cases since there are many more types of proceedings in Family Court. Paternity and child support jurisdiction is determined pursuant to Articles 4 and 5 of the Family Court Act. Your starting point on the issue of jurisdiction in Family Court is to make sure that one party to the proceeding is a resident of the State of New York at the time of the filing of the summons and petition. Whether you have jurisdiction over the other party will depend upon the facts of the case. You must review the Uniform Support Act as well as the UCCJEA in order to determine if you have jurisdiction on a particular case. On the issue of custody, the courts can assert emergency jurisdiction even if the other requirements are not present. These types of cases are very fact sensitive.

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The court can also decline jurisdiction in a custody case if the court determines that another state is a more convenient forum. See Paderno vs. Shvetsova, 945 N.Y.S.2d 761 (2d Dep’t 2012)(court concluded that the State of Washington was a more convenient forum since child and mother have little contact with State of New York). II SEPARATION An action for separation is brought pursuant to DRL § 200. The grounds for separation are provided in the statute. The procedure to obtain a separation or a divorce is the same. If the matter is uncontested, a package is submitted to the court. If the case cannot be resolved, a trial is necessary. The major difference is that you can obtain a legal separation without ever commencing a lawsuit for separation. Instead, a separation agreement can be executed between the parties. The law provides that the separation agreement or any other marital agreement be executed in the manner required for a deed to be recorded. See DRL § 236(B) 3 attached as Appendix A. A separation agreement is still a contract and treated as such by the courts. In order for the court to determine that the contract is unenforceable, there must be a finding that the agreement was unconscionable at the time of the making or that there was fraud, duress or undue influence. Christian vs. Christian, 42 N.Y.2d 63 (1977). This is a very high standard of proof on the party seeking for the court to invalidate the agreement. An attorney must always advise his or her client to take the signing of a separation agreement very seriously and to presume that he or she will have to live with the agreement for a very long time. Under no circumstances should a client sign the agreement while thinking that it can be changed at a later time.

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You will sometimes have clients ask you whether a clause can be included in their separation agreement prohibiting the other spouse from filing an action for divorce until some time period has expired or other condition has been met. The above question was answered in the negative by the Third Department in Esposito-Shea vs. Shea, 94 A.D.3d 1215 (3d Dep’t 2012). Most of the time, a separation agreement will provide that in the event of annulment or divorce, that the terms of the separation agreement will be incorporated and not merged in the judgment of divorce. This sentence means that even if the divorce is vacated or modified, the terms of the agreement will still survive. Notwithstanding the foregoing, if the proper language is not included in the separation agreement or stipulation of settlement, including opt-out language in the event that the agreement does not comply with the Child Support Standards Act, the agreement may be found to be unenforceable by the court. Fasano vs. Fasano, 43 A.D.3d 988 (2d Dep’t 2007). III ANNULMENT DRL §140 sets for the requirements to obtain an annulment in New York State. Six grounds are set forth in the statute including: (a) Former husband or wife living. (b) Party under the age of consent. (c) Party a mentally retarded person or mentally ill person. (d) Physical incapacity. (e) Consent by force, duress or fraud.

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(f) Incurable mental illness for five years. The most common ground for annulment is fraud; however the fraud must go to the essence of the marriage. There is a requirement that the party seeking to annul a marriage on the grounds of fraud produce a corroborating affidavit. In addition, the statute provides that parties cannot have marital relations with full knowledge of the fact constituting the fraud. The best way to prepare the paperwork necessary to file for an annulment is to purchase software from a recommended provider. You will input the basic information and then the software will use that information to compile the documents. As long as the information is inputted correctly, you do not have to worry about typographical mistakes in the spelling of names, addresses or dates. If you do not use a computer software program, forms are available on the court’s website. The software companies update their forms automatically each year. They will either send you a new CD or you can download the updated version on your computer. However, if you are relying on forms, you must check the court’s website on a regular basis to make sure you are in compliance with the latest documents needed to file your package. IV DIVORCE DRL §170 sets forth the grounds for divorce. As most of you are probably aware, New York became the last State in the country to enact “no fault” divorce. All actions commenced on or after October 13, 2010 can use the no fault ground by stating that there

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has been an irretrievable breakdown of the marriage for a period of six months or more. See DRL § 170(7) attached as Appendix B. Prior to the enactment of the “no fault” grounds, parties often used constructive abandonment or actual abandonment to obtain an uncontested divorce. Other than using the grounds of living separate and apart for more than one year pursuant to a decree of separation or a separation agreement, constructive abandonment was the least “fault like” ground for divorce. To use constructive abandonment, one party had to assert that there had been no sexual relations between husband and wife for a period of at least one year. The party seeking the divorce had to allege that he or she requested sexual relations and that the other party denied his or her requests. There also had to be no physical or psychological impairment to prevent sexual relations between the husband and wife. The other grounds for divorce are still valid at this time; however most of the cases being filed since the enactment of the new law are using DRL § 170(7) as grounds for divorce. There have been a few recent cases concerning whether defendant can still object to the divorce by denying plaintiff’s statement that the marriage has irretrievably broken down, Strack vs. Strack, 31 Misc.3d 258 (Essex Co. Sup. Ct. 2011), however justices in Nassau County Supreme Court have issued decisions finding that there is no defense to the no fault grounds. A.C. vs. D.R., 31 Misc.3d 517 (Nassau Co. Sup. Ct. 2011); Townes vs. Coker, 35 Misc.3d 543 (Nassau Co. Sup. Ct. 2012); Vahey vs. Vahey, 35 Misc.3d 691 (Nassau Co. Sup. Ct. 2012). The judges in the Supreme Courts of the First and Second Departments are of the opinion that the legislature meant for there to be no defense to “no fault” grounds when enacting the statute. In the view of those judges,

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the statute would be ineffective if a spouse was able to contest the divorce under the no fault grounds. The most important thing to remember if you are going to use DRL § 170(7) as grounds is that under the no fault ground of the statute, the court must decide the issues of child support, custody, parenting time, counsel fees, maintenance and expert fees prior to granting the no fault divorce. For this reason, if you believe that it is possible that the defendant may default where you represent the monied spouse and there are no children or assets, you might want to include the constructive abandonment as second cause of action on your summons. If you use constructive abandonment, you can obtain the divorce without reaching an agreement or conducting an inquest concerning spousal support. If you use the DRL § 170(7), you will be forced to conduct an inquest or have the court make a determination on the issue of spousal support. You must also remember to be careful when adultery is used as the grounds for divorce. Adultery is still a crime in New York. See Penal Code Sections 130.00 and 130.20. You never want your client to acknowledge committing a crime. Cruel and inhuman treatment used to be a very common ground used for divorce. Prior to the enactment of DRL § 170(7), if the parties were seeking to file for divorce less than one year after marriage, cruel and inhuman treatment was usually alleged since the parties were unable to use actual abandonment or constructive abandonment. After the enactment of DRL § 170(7), the courts strongly encourage the use of the no fault grounds in lieu of conducting a grounds trial. Judges will often tell a litigant that the defendant can counterclaim on DRL § 170(7) whereby a divorce can be granted and held in abeyance prior to even obtaining a date for the trial on grounds.

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The enactment of the new no-fault statute has made grounds a lot easier, however its requirement that all other issues either be stipulated or resolved by the court prior to granting a divorce has resulted in lengthening the procedure in other aspects. New legislation regarding maintenance, which will be discussed later on, has also caused many changes in the practice of matrimonial law. V EQUITABLE DISTRIBUTION There are many continuing education courses that devote their entire program to the issue of equitable distribution. DRL § 236(B) is the statutory authority in New York for the division of marital assets. The statute provides that all assets except gifts, inheritances and personal injury awards that are acquired from the date of marriage until the commencement of an action for divorce are marital property subject to equitable distribution unless the marital property is acquired with separate property. Notwithstanding the foregoing, there are often issues as to the appreciation of separate property and transmutation of separate property to marital property. See Fields vs. Fields, 15 N.Y.3d 158 (2010), for a thorough analysis of the distinctions concerning appreciation of separate property and Renga vs. Renga, 86 A.D.3d 634 (2d Dep’t 2011) for an analysis regarding transmutation of separate property to marital property. Equitable distribution is a very important element of any action for divorce. The first thing you need to do in every case is to have your client complete a statement of net worth. Clients often come in and tell you that their divorce is uncontested and that there are no property issues. In fact, many times, there is property that a client will fail to inform you about. If you fail to complete a statement of net worth, you open yourself up

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to a possible malpractice lawsuit in the event that the client sues you later for an asset he or she may claim that you were told about. Having the statement of net worth completed is just good practice since it protects you from malpractice and also helps the client remember the different assets of the marriage. A blank statement of net worth is attached at the conclusion of the outline as Appendix C. Equitable distribution does not mean equal distribution. Rather, if the parties are otherwise unable to reach an agreement as to the division of assets, a court will decide how to equitably divide the marital assets. Ropiecki vs. Ropiecki, 94 A.D.3d 734 (2d Dep’t 2012). Absent a contractual agreement, the Court may not order the allocation of veteran’s disability benefits in an action for divorce. In Alvarado vs. Alvarado, 38 Misc. 3d 1211(A), 966 N.Y.S.2d 344 (Richmond Co. Sup. Ct. 2013), the Court concluded that the “husband’s veteran’s disability benefits are separate property for purposes of equitable distribution and maintenance.” After a trial, the Court further concluded that “a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from veteran’s disability benefits.” Alvarado v Alvarado, 46 Misc 3d 1220[A], 1220A, 2015 NY Slip Op 50130[U], *3 (Richmond Co. Sup. Ct. 2015) quoting Mills v. Mills, 22 AD3d 1003, 802 N.Y.S.2d 796 (3rd Dept. 2005).

As set forth in DRL § 236(B), assets are not determined based solely upon title. Cease vs. Cease, 72 A.D.3d 1450 (3d Dep’t 2010). If a particular asset is acquired after

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the marriage and prior to the commencement of the action for divorce, it is presumed to be a marital asset regardless of which spouse’s name it is titled in. If a spouse fails to offer evidence establishing the amount of separate property contributed towards marital property, the entire amount will constitute marital property subject to equitable distribution. See Zufall v. Zufall, 109 A.D.3d 1135 (4th Dep’t 2013)(husband’s deferred compensation account found to be marital property where he failed to offer any evidence as to the amounts he contributed before and during the marriage). Once the assets are identified, you want to make sure that there is disclosure and/or appraisals completed as to the value. Your client gets to decide whether to request or waive equitable distribution of a particular asset, however the job of the attorney is to make sure that the request and/or waiver is made in full knowledge of what the particular asset is worth and whether the client is otherwise entitled to equitable distribution of the assets. Stocks, real estate and retirement assets are the most complicated to divide. You should make sure that a reputable company specializing in such appraisals values retirement assets. You must know the basis in stocks so as to avoid a situation where one party receives a lopsided settlement or division due to tax consequences. You should always try to make sure that your client hires a CPA to answer all questions concerning taxes. Real estate has become particularly troublesome due to the recent fluctuations in value. Real estate is usually valued as close to trial as possible, however there always is a problem if the value is actually less on the date of trial or decision than it was at the time of the appraisal. You also have to be careful that if you are unable to resolve your case

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for settlement that you have proper evidence before the court of the value of any asset that is not titled in your client’s name. If it is titled in his or her spouse’s name and there was no evidence to prove its value, there will be a problem concerning the equitable distribution of same. Albanese vs. Albanese, 69 A.D.3d 1005 (3d Dep’t 2010); Phillips vs. Haralick, 70 A.D.3d 663 (2d Dep’t 2010). See Marcellus-Montrose vs. Montrose, 84 A.D.3d 752 (2d Dep’t 2011) for a thorough analysis of valuation and determination of marital versus separate property. If your client is seeking a portion of the appreciation of a separate property asset that increased in value during the marriage due to your client’s efforts, you must prove the value of the asset at the time of the marriage as well as at the time of the commencement of the action for divorce. Failure to prove these basic elements will result in the court granting no relief to your client as to that particular asset. “Separate property which is commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be martial property.” Gately vs. Gately, 113 A.D.3d 1093 (4th Dep’t 2014). VI PROCEDURE TO OBTAIN AN UNCONTESTED DIVORCE After your retainer and rights letter are signed (and your retainer is paid), you must file a summons with notice, DRL § 255 language and notice of automatic orders with the court to commence an action for divorce. If the defendant is willing to sign a defendant’s affidavit acknowledging service, you do not need to hire a process server or arrange for service since the defendant’s affidavit acknowledges service.

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If a client comes to you seeking an uncontested divorce and you have determined after your consultation that all issues have been agreed upon, you should still have the client complete a statement of net worth. If you were using a stipulation of settlement to be signed by your client, you would prepare the stipulation for review. Once the stipulation is acceptable to your client, you can either mail the stipulation with the defendant’s affidavit to defendant or have your client give the paperwork directly to defendant. All of the above would be premised on your understanding that defendant is unrepresented by counsel. If defendant were in fact represented by counsel or going to retain counsel, you would contact defendant’s counsel directly and exchange statements of net worth prior to even preparing the stipulation of settlement. You also would send the proposed stipulation and defendant’s affidavit directly to counsel after confirming by notice of appearance that said attorney was in fact defendant’s counsel. After all the agreements are signed, you would prepare the uncontested package. The package is available by way of software companies or on the court’s website. A copy of blank uncontested forms is attached hereto as Appendix D. You must be careful to make sure that defendant is either served within 120 days (regular days, not business days) of the filing of the summons with notice and that the defendant’s affidavit acknowledges service within 120 days of the filing of the summons with notice or summons and complaint. After you have completed the package, you must give notice of settlement to defendant or defendant’s attorney if represented by counsel. The package is then filed

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with the court together with a check in the amount of $125.00 representing the fees for the note of issue and request for judicial intervention. In New York County, the uncontested clerk will sit down with you to review the package so that you may be told if there are any problems or errors. This is something that can be done by the attorney or a member of your staff. Other counties have similar procedures but not all will do a comprehensive review at the time of the submission of the uncontested package. Part of your package includes a post card so that you may be informed when the judgment has been signed. After you receive the post card, you usually can obtain a certified copy of the judgment of divorce and findings of fact and conclusions of law within two weeks. You need to pick up a copy since the court will not send a copy directly to you. You then are responsible to prepare a notice of entry of the divorce to defendant or defendant’s counsel. You will prepare the notice of entry, cover letter to the court as well as the affidavit of service. Once you have sent out the package to the court, your adversary and your client, your case is completed and the divorce is final. The entry date on the judgment of divorce should be considered the date of the final divorce for all purposes. You can also obtain a judgment of divorce without trial after going to court for a preliminary conference; however once you have appeared at the preliminary conference, your divorce will be considered a “settled contested” even if the other side does not contest grounds. You can either conduct an inquest in court on grounds or send the first and signature pages of the stipulation to the court to prove that your case was resolved at some point after the preliminary conference. You then would repeat the procedure set

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forth above concerning the preparation of the uncontested package and filing with the clerk. VII PROCEDURE TO OBTAIN A CONTESTED DIVORCE Once you have filed and served the summons with notice and/or exchanged statements of net worth and pleadings and are unsuccessful in your attempts to resolve the case, you may want to file the action on the preliminary conference calendar. This is the first step towards obtaining a divorce. A copy of the blank form for a request for preliminary conference is attached hereto and labeled Appendix E. At the preliminary conference, you will complete the court’s form and conference the case with the Judge or the Judge’s court attorney. The court will want to know what issues are outstanding and whether there is a settlement. A discovery exchange schedule will be included in the form. You must come to court prepared to discuss all of the issues. Unless you receive permission from the court, all clients and counsel must attend all court appearances on any divorce case. Prior to coming to court for the preliminary conference, you must have your client complete a statement of net worth. The statement of net worth usually must be filed 10 days prior to the preliminary conference. The judge’s order usually states same. You should also bring an extra copy of your client’s statement of net worth with you to court since most justices will ask for it at the preliminary conference. Sometimes you will be unable to file it prior to the court date. However, under no circumstances should you ever appear at a preliminary conference without your client’s statement of net worth. Many of the judges will sanction you and your client for violating the court’s order requiring the

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filing of the statement of net worth. If you appear without it, even if you are not sanctioned, you will start the conference with the judge particularly annoyed at you and your client. You will be given another date at the preliminary conference for either a status conference or a compliance conference. Status is to let the court know what’s happening in the case and is often used when custody is at issue. Compliance relates to the completion of the exchange of discovery and getting the case ready for settlement or trial. If your case does not settle and you do go to trial, each judge has his or her own rules concerning trials. Some judges want a trial notebook or the exhibits done in advance. Every judge wants a statement of proposed disposition completed prior to the pre-trial conference. Failure to complete the statement is a basis for the judge to sanction you or issue an order of counsel fees to your opponent. You should have the statement of proposed disposition with you at the pre-trial conference. Trials are often held on consecutive days once they start. You should be aware of that and advise your client of same. Trials are also very time consuming and expensive and should be avoided if you are able to reach a settlement. VIII PATERNITY ACTIONS Article 5 of the Family Court Act specifies the law as to the issue of paternity. Either a mother or father can file a petition for paternity. The most basic thing to do first when you encounter a paternity case is to determine whether paternity has already been established by way of an acknowledgment of paternity. In New York, at the time of the birth of a child born in at least the last ten years, an acknowledgment of paternity form is

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given to the parents at the same time as the birth certificate. If the birth took place in the State of New York and the father is listed on the birth certificate, there probably was also an acknowledgment of paternity if the child was born in the last ten years. You should ask your client to look for the form, go to the hospital the child was born to get it or go to the Department of Health. If you represent the father and your client’s name is not on the original birth certificate but he remembers signing an acknowledgment of paternity later and is unable to get the records since his name is not on the birth certificate, the records must be subpoenaed by your office. If there is an acknowledgment of paternity, there is no necessity for an order of filiation since the acknowledgment is the same as an order of paternity. A child support case can be filed without first obtaining an order of filiation if the child was born of a marriage or there is an acknowledgment of paternity. If there is no acknowledgment of paternity, then a paternity case must be filed. Regardless of what name, if any is listed on the birth certificate, you must bring the original or a certified copy of the birth certificate with you when you file for paternity in court. The other side is served with the papers and you appear in court. Only unmarried parents need an acknowledgment of paternity or an order of filiation. Children born to married parents are presumed to be the children of the parents. The next important fact that you must ascertain was whether the biological mother was married to someone else at the time of the conception or birth of the child. If the mother was married to someone else and there is no judgment of divorce or findings of fact that specifically states that the child is not of the marriage, the husband or ex-

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husband of the mother will be presumed to be the child’s father. See FCA § 417. This is one of the strongest presumptions under the law. The most important thing to remember is that in New York State, biology does not control the issue of paternity since even if there is definitive proof that another man is the biological parent of the child, the court may still dismiss that parent’s petition if the court determines that estoppel prevents a finding of paternity. The issue of estoppel will be determined by a judge prior to the entry of any order of paternity or even an order requiring the petitioner, respondent and child to appear for a blood genetic marker testing. If the court determines that a man other than the alleged father has a relationship with the child and that it is not in the best interests of the child for another man to be found to be the father, then the paternity proceeding will be dismissed. Juanita A. vs. Kenneth Mark N., 15 N.Y.3d 1 (2010) provides a detailed analysis of the law concerning estoppel as it relates to paternity. Damien vs. J.G., 39 Misc. 3d 243 (Fam. Ct. Monroe Co. 2012) is an interesting paternity case. The petitioner in Damien, was African American and the respondents were Caucasian. The two children were born during the respondents’ marriage. The Court denied the respondents’ motion to dismiss the paternity petition despite respondents’ assertion of equitable estoppel and presumption of legitimacy. The Court acknowledged that the children do not appear Caucasian and explained that it is unaware of case law that requires the apparent race of a child to be ignored on issues of paternity. The Court ordered the genetic marker test for the petitioner, respondents, and children. The Court explained that the marital presumption of legitimacy is rebutted because the children do

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not appear to be Caucasian, the petitioner’s visitation with the children, his payment of child support and the behavior of the adults. SQ vs. JM, 307032/11 NYLJ 1202609169554, at *1 (Sup. NY, Decided June 12, 2013), involves the issue of artificial insemination. DRL § 73 provides, “Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purpose.” The petitioner in SQ sought an order denying paternity of children who were born as a result of in vitro fertilization (IVF) where the petitioner never executed the required consent form. The Court found that the petitioner overcame the presumption of legitimacy by clear and convincing evidence since he did not consent to his wife’s IVF. However, the Court still needed to inquire as to whether the petitioner should be estopped from denying paternity. The Court found that the petitioner should not be estopped because he did not encourage his wife to have IVF, did not support her in the decision, did not hold himself out as the father or encourage the children to view him as their father. Assuming there are no estoppel issues or a presumption of legitimacy, in actions for paternity, the genetic marker test is conclusive evidence if it excludes the respondent as the father of the child. However, the genetic marker test is not conclusive to prove parentage but rather is only a factor. See FCA § 418. You may also see cases where a father either signs an acknowledgment of paternity or consents to an order of filiation only to find out later that he is not the biological father of the child. If you are seeking to vacate an order of filiation or an

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acknowledgment of paternity, a motion must be filed seeking such relief. You may then encounter the issue of estoppel as set forth above. Merely arguing that the alleged father previously questioned his paternity privately will not be sufficient to challenge an acknowledgement of paternity if he nonetheless went on to hold himself out as the child’s father and provided child support for a number of years, as the Court will likely find that the child’s best interests are served by stopping your client from denying paternity at that point. Jesus R.C. v Karen J.O., 126 A.D.3d 445 (1st Dept 2015). If your client was never served with the paperwork, his motion to vacate should not result in a denial as untimely. You must look at the affidavit of service contained in the court’s file very carefully and then request a traverse hearing. If the petitioner is unable to get the process server to appear, you may be able to open the default and have the opportunity to defend your client. In addition, if there was an acknowledgment of paternity signed, you must inspect it very carefully for defects in the signing or completion. If the acknowledgment is defective, it is considered void and must be vacated upon motion to the court. In the Matter of Mr. Y vs. Ms. M, NYLJ 1202570906633, at *1 (Fam. Ct., QU, Decided August 27, 2012), the court held that if the challenge was made “…seeking to set aside a duly executed Acknowledgement of Paternity more than 60 days after its signing, the challenger must prove that there existed such fraud, duress or material mistake of fact [FCA 516-a(b)(ii)] and that he/she justifiably relied upon same to his/her detriment.” The Court in the Matter of Mr. Y, held that the petitioner should not be estopped from challenging the Acknowledgement of Paternity even though more than 60 days past after its execution because he relied upon a material mistake of fact, if not fraud, when the respondent insisted that he was the father. Additionally, the court held

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that the petitioner did not have knowledge that the respondent was legally married or whether she engaged in sexual intercourse with anyone else at the time of conception. IX CHILD SUPPORT AND SPOUSAL SUPPORT IN FAMLY COURT a. GENERAL OVERVIEW: FCA Article 4 sets forth all the statutes related to child support and spousal support in Family Court. There are a few distinctions between an action in Family Court and matrimonial proceeding in Supreme Court. The percentages for child support are the same in FCA § 413 and DRL § 240, however the enforcement mechanisms and request for relief is much easier for a litigant in Family Court. Fringe benefits provided by a parent’s employer may be imputed to gross income for the purposes of calculating child support. K.W. vs. M.W., 36 Misc.3d 394 (Fam. Ct. Onondaga Co. 2012); FCA § 413(1)(b)(5)(iv)(C). Afterschool programs and summer camp qualify as childcare so long as the expenses are for programs that provided care while the custodial parent is working. Scarduzio vs. Ryan, 86 A.D.3d 573 (2nd Dept. 2012). Petitioners and respondents often appear without counsel in Family Court. The client can go directly to the court to obtain assistance by completing a petition. Notwithstanding the foregoing, the court must still conduct an inquiry to determine whether a litigant has waived his right to counsel. Failure to conduct the inquiry will result in a new hearing. See Rosof vs. Mallory, 88 A.D.3d 802 (2nd Dept. 2011).

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In Family Court you can seek contempt through violation and once a violation is established the court can determine an enforcement mechanism including imprisonment. In child support cases filed in Family Court, the courts can and will imprison litigants for failure to pay child support if the custodial parent seeks contempt. A respondent seeking to vacate an order directing such incarceration will generally not be able to do so while he is a fugitive from that order unless he posts a bond to indicate that he is not flouting the judicial process. Matter of Shehatou vs. Louka, 124 A.D.3d 1335 (4th Dep’t 2015). In the Family Courts of the State of New York, failure to pay child support pursuant to court order constitutes prima facie evidence of willful violation to pay support as ordered. See FCA § 454(3)(a). In Supreme Court, contempt is considered a drastic remedy used only after all other options have been exhausted. The major difference in filing a spousal support case in Family Court versus Supreme Court is that the new law applying statutory percentages to spousal support during the pending litigation does not apply to Family Court cases since the filing of a support petition is not considered a matrimonial proceeding. Filing a petition in Family Court commences a child support or spousal support case. Some Family Courts issue their own summons and only require the filing of a petition while others want the attorney to prepare the summons. If a potential client has no money to hire an attorney, the client may go to the Family Court to file his or her own petition for child support and spousal support. The litigant seeking support should request that that the money is paid through the Support Collection Unit. When it is paid in this manner, the paying spouse mails payment to the

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Support Collection Unit and the Support Collection Unit issues its own check to the custodial parent. Some Support Collection Units no longer issue checks, but rather deposit the money directly into the custodial parent’s bank account. A debit card is then issued so that the parent may withdraw the money. b. CHILD SUPPORT HEARINGS IN FAMILY COURT FCA § 413 provides the statutory framework that the Family Court uses to decide a child support case. The statute defines income for child support purposes that is different than income reported on tax returns. For example, all contributions to retirement plans are considered income for purposes of child support, but not necessarily for purposes of income taxes. Housing and food allowances are also considered income for child support. The Family Court uses percentages of adjusted gross income (17% for one child, 25% for two children, 29% for three children, 31% for four children and 35% for five children or more). The court does not have to base income on what a litigant is actually earning or representing his or her income to be to the Court. Duffy vs. Duffy, 84 A.D.3d 1151 (2nd Dept. 2011). If a third party is supporting the litigant, the court can impute income to the litigant being paid by the third party. If the litigant is not working, the court can use the litigant’s prior income when he or she was working as a basis to determine child support. If the litigant is able to prove that he or she is making a diligent effort to seek commensurate employment, the court may instead use the litigant’s unemployment insurance to calculate child support. Court will usually make a temporary order based upon unemployment insurance and adjourn the case for completion of a job log with the

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hope that the litigant will be employed at the next court appearance. When calculating yearly income for a party who has started working partway through the current year, the court should use a pay-stub and multiply that to a full year’s income rather than relying upon a year-to-date figure. Thompson-Fleming vs. Fleming, 128 A.D.3d 708 (2nd Dep’t 2015). Often you will have a case where a respondent will have children from different mothers or have a prior child support order for a different child. You must then deduct the amount of the prior child support order from the payor’s income in addition to the other deductions used to determine your client’s adjusted gross income. Your case is much more complicated if there is a prior child without a prior order or written agreement to pay child support. If the child is on public assistance, the court then will compare the money available in your client’s home for the child to the money available for the child that is the subject of the support case. In this instance, if your client was married or living with the mother of a non-subject child, that mother’s income would also be used to determine the availability of funds. The money would not be used to determine child support, but rather only for purposes of comparing the availability of funds to support the child. If there can be no determination made based upon comparing available funds or the child is not on public assistance, it is possible for the court to consider other children under the “any of factor” section of FCA § 413 (1) f (10). The statutory percentages are presumptively correct. In order to convince the court to vary from the percentages set forth in the statute, you have the burden to rebut the presumption. It is not easy to rebut the presumption. The statute does not provide for consideration of the non-custodial parent’s expenses. Often a client will ask whether his

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or her expenses are taken into consideration when a court determines child support. You would then tell the client that up to the first $141,000 of combined adjusted gross income; expenses are rarely taken into consideration unless there is something extraordinary such as uncovered medical expenses, an eviction proceeding due to unpaid rent or educational expenses. The court may also consider combined income in excess of $141,000; however there should be a showing of need prior to including income in excess of $141,000. Although Cassano vs. Cassano, 85 N.Y.2d 649 (1995) was decided when the statutory cap was $80,000, the law contained within the decision is still applicable today. Recent cases have used as much as $400,000 to $600,000 of combined adjusted gross income to determine child support. See Beroza v. Hendler, 109 A.D.3d 498 (2d Dep’t 2013)($400,000 used as the cap to determine child support); Sykes v. Sykes, 43 Misc.3d 1220(A) (New York Co. Sup. Ct. 2014)($600,000 utilized as the cap of combined adjusted gross income). If the petitioner and respondent have joint custody and each is with the child for an equal period of time, the court treats the lower earning parent as the custodial parent for purposes of child support. See Bast vs. Rossoff, 91 N.Y.2d 723 (1998); Powers vs. Powers, 37 A.D.3d 316 (1st Dep’t 2007). It appears that this law is now well known between mothers and fathers resulting in requests for joint physical custody in order to eliminate the obligation to pay child support by the lesser earning parent. When negotiating a custody case or parenting plan, an attorney must understand the implications of such cases on child support obligations.

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In Rubin vs. Della Salla, 107 A.D.3d 60, 964 N.Y.S.2d 41 (1st Dep't 2013), the Appellate Division held that “based upon the plain language of the Child Support Standards Act, its legislative history, and its interpretation by the Court of Appeals, a custodial parent who has the child a majority of the time cannot be directed to pay child support to a noncustodial parent.” In this case, the father appealed an order directing him to pay child support. The First Department held that a determination of which parent was the custodial parent must be based upon the number of overnights, not the economic need. The Appellate Division found it was judicial error to grant child support to the less monied parent when said parent spent significantly less time with the child than the other parent. The Court concluded that the father was the custodial parent because the child spent 206 overnights with him as opposed to the 159 overnights spent with his mother, which equates to almost a 30% difference. The Court explains that the case at bar is distinguished from other cases where the parents have equal or essentially equal custodial time. You will sometimes encounter cases concerning the issue of child support during the time period that a child is attending college while residing in a school’s dormitory. In Lacy vs. Lacy, 114 A.D.3d 500 (1st Dept. 2014), the court granted father’s motion to terminate child support where the child resided with the father during the summer, received mail at his father’s residence and obtained a New York City driver’s license listing his father’s address. Id. In addition to base child support, the Child Support Standards Act (hereinafter referred to as “the CSSA”) also provides for a pro-rata payment of add-ons. Add-ons include the cost of medical insurance, unreimbursed medical and dental expenses,

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childcare and camp. Education including private school and college is discretionary dependent upon the facts of the case. See FCA § 416. In Apjohn v. Lubinski, 114 A.D.3d 1061 (3d Dep’t 2014), the appellate division reversed and held that the Family Court erred in subtracting loans obtained by the son from the amount to be contributed by the parties since no provision allowing such deduction was set forth in the parties’ agreement. If a petitioner fails to appear at a child support case, the petition in all likelihood will be dismissed. However, if either party’s counsel appears instead of petitioner and the case is on the calendar for the first time, the case will in all likelihood be adjourned. If the case is not on for the first time, it is within the discretion of the Support Magistrate to determine if the adjournment will be granted. If the respondent fails to appear at a child support case, the court can still issue an order against respondent for child support. Some respondents believe that if they fail to appear in court, nothing will happen on their case. This is simply untrue. In addition, if a respondent fails to appear, the court has the option to issue a warrant for the respondent’s arrest. c. MAINTENANCE HEARINGS IN FAMILY COURT Maintenance cases are often filed in Family Court when there is no matrimonial proceeding pending. If a matrimonial proceeding is pending, the Family Court has no jurisdiction to entertain the maintenance case unless the Supreme Court refers it to the Family Court. Only a spouse can file maintenance cases. The financial affidavit used in child support cases must be completed. As a general rule, Supreme Court is a better court to

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file a spousal support case since the awards are typically higher and the presumptive amounts are only applicable while an action for marital dissolution is pending In Family Court there is no statutory percentage to determine spousal support. The amount of support ordered is determined on a case-by-case basis and fact sensitive. The court will look at both parties’ incomes and expenses and determine how much is needed for the support of the dependent spouse. Now that the new legislation is in effect with statutory percentages, all spouses should seek maintenance relief in Supreme Court. d. COMPLETING THE FINANCIAL AFFIDAVIT Any time a spousal support or child support case is filed in Family Court, all litigants must submit financial information set forth in FCA § 424-a. This is a financial affidavit; three recent paystubs and the most recently filed Federal and State tax return. FCA § 424-a form is set forth at the conclusion of this outline as Appendix F. If the petitioner fails to submit his or her financial affidavit or other financials set forth above, the court could dismiss petitioner’s petition. If respondent fails to provide the required financial information, the court could consider it a default by respondent and make a determination in favor of petitioner as if respondent was not present in court. The court could also base its decision on the needs of the custodial parent instead of the statutory percentages used for child support. The financial affidavit must be completed very carefully. The litigant should have it signed and notarized in advance of the court appearance. Litigants sometimes exaggerate their income in the hopes that they will receive more support. An attorney must warn a client that if fixed expenses exceed income and there is no debt or other

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reason to explain how the expenses were paid, that the court would in all likelihood impute income based upon the expenses set forth in the financial affidavit. For example, if fixed expenses were $5,000 per month and gross income (before taxes) was $3,500 per month, a litigant would be at a loss to explain how the expenses were paid if there was nothing listed under the liability section of the financial affidavit. X CHILD SUPPORT AND SPOUSAL SUPPORT IN SUPREME COURT If there is no separation agreement or consent stipulation concerning the issues of child support and spousal support while a matrimonial action is pending, child support and spousal support are usually obtained in Supreme Court through a pendente-lite order to show cause or motion. A supporting affidavit and affirmation as well as exhibits should be attached to the order to show cause or notice of motion. The non-moving party will then have the opportunity to prepare and serve opposition papers and a cross-motion to your notice of motion or order to show cause. You then have the opportunity to file a reply to the opposition papers. Any relief is retroactive to the date of the filing of your motion. The court can order that the retroactive payment be made lump sum or in periodic payments. DRL § 240 controls child support and spousal support. The statute contains the formula to determine spousal support. Please note that the formula only applies to spousal support while the matrimonial action is pending in court. There is no statutory formula to calculate spousal support post judgment. An analysis of the statute is set forth in Scott M. vs. Ilona M., 31 Misc.3d 353 (King Co. Sup. Ct. 2011) Justice Jeffrey S. Sunshine). The court may also deviate from the formula as set forth in S.G. vs. P.G., 32

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Misc.3d 1233A (Nassau Co. Sup. Ct. 2011); Salai vs. Salai, 34 Misc.3d 232 (Monroe Co. Sup. Ct. 2011). In ordering spousal support to be paid post-judgment until the wife was able to access Social Security, the Second Department directed that it was proper to consider the parties’ respective ages, financial circumstances, health, and the fact that the marriage was long-term during which the wife was primarily a stay-at-home mother. Carroll v Carroll, 125 A.D.3d 710 (2nd Dep’t 2015). Non-durational maintenance may be an appropriate award in some cases, and where it would be impossible to determine the monied spouse’s post-retirement income the proper procedure is for that spouse to seek downward modification at that point rather than setting a limit upon the spousal support ordered. Wilkins vs. Wilkins, 129 A.D.3d 1617 (4th Dep’t 2015). When determining support, the courts do not have to necessarily rely solely on the information supplied by the litigants. In Salman vs. Salman, 37 Misc. 3d 1210(A) (Sup. Ct. Kings County 2012), the Court followed DRL 236 [B](5-a)(g) and awarded temporary maintenance based upon needs of the wife and children because the Court did not have any degree of accuracy with regard to the husband’s income. The Court also awarded temporary child support based on needs because the husband presented “insufficient and incredible evidence” supporting his income. In R.D. vs. M.C., NYLJ 1202614263632, at *1 (Sup. NA, Decided July 25, 2013), the Court did not apply the 2010 DRL 236[B][5][c] guidelines for calculating the presumptive amount of temporary spousal support. Instead, it considered the factors set forth in DRL 236(B)(6)[2009] because the action was commenced in 2009. The Court did not award the defendant temporary support based on the pre-separation standard of living because of the extremely short duration the parties’ cohabitated at the marital residence

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and lack of evidence that defendant requested financial help or was financially dependent on the plaintiff. However, even though the defendant failed to establish that the parties lived as husband and wife for more than two to six months and that she was financially dependent on the plaintiff, the Court awarded the defendant temporary maintenance based upon her status as a public charge. The plaintiff was ordered to pay temporary maintenance in the amount of public assistance the defendant was receiving. In addition to child support and spousal support, a Justice can also order payment of the carrying charges, utilities, marital debts and other expenses pendente-lite while the matrimonial action is pending. The court does not have to rely on the documents or testimony given by the litigant concerning his or her income. The court may impute income based upon past demonstrated earning capacities. DiFiore vs. DiFiore, 87 A.D.3d 971 (2d Dep’t 2011). The court is also not limited to taking into account only taxable income, as items such a per diem payments for personal expenditures may be considered when deciding a support order. Covington v Boyle, 127 A.D.3d 1393 (3rd Dep’t 2015). In order to obtain relief from the Supreme Court on any application for spousal support or child support, you must include a statement of net worth with a recent paystub and most recently filed tax return. Failure to include a statement of net worth will result in the denial of a litigant’s application for financial relief. The court will not allow a credit for child support for payment made for cell phones or automobiles where the non-custodial parent made such payments for the benefit of the children and not pursuant to court order. LiGreci vs. LiGreci, 87A.D.3d 722 (2d Dep’t 2011).

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XI ENFORCEMENT OF CHILD SUPPORT AND SPOUSAL SUPPORT You will often see cases where clients come to you stating that their child support and spousal support orders are not being paid. Support orders can be enforced in both the Family Court and Supreme Court. Most judgments of divorce contain language granting the Family Court concurrent jurisdiction in the enforcement and modification of the order. If there is no such language in the judgment of divorce, applications for enforcement should be filed in the Supreme Court by way of order to show cause or notice of motion. There is no need or requirement to file a plenary action for enforcement of support obligations contained in the parties’ stipulation of settlement, which was incorporated but merged in the judgment of divorce. Marano vs. Marano, 947 N.Y.S.2d 597 (2d Dep’t 2012). If the original child support order is not being paid through the Support Collection Unit, the custodial parent can file a petition in Family Court seeking enforcement through the Support Collection Unit. FCA § 451 provides for the continuing jurisdiction of the Support Collection Unit, which will then deduct the money directly from the payor’s employment paycheck. The Support Collection Unit will also arrange for a tax refund intercept to allow the custodial parent to receive unpaid child support in that manner. FCA § 451 contains the statutory language providing that no child support arrears shall be annulled or reduced for any period prior to making application for such relief with the court. Application means the filing of a petition for downward modification. If a client waits months or years prior to filing for downward modification after a change of circumstances, the court will only consider a reduction in support for the time period that

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has accrued after the petition was filed. Notwithstanding the foregoing, pursuant to FCA § 413 (1) (g), “where the non-custodial parent’s income is less than that equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.” The prohibition against reducing child support arrears as found in FCA § 451 does not apply since there are no child support arrears in excess of $500. See Briggs vs. McKinney-Mays, 112 A.D.3d 622 (2d Dep’t 2013). Article Four of the Family Court Act provides for numerous provisions concerning enforcement of child support. Driver’s licenses and passports may be suspended. Funds from bank accounts may be garnished. You should familiarize yourself with the provisions contained in Article Four of the Family Court Act. If your client is on public assistance, Corporation Counsel will usually file a petition in Family Court against the non-custodial parent to either change the payee from the custodial parent to the Commissioner of Social Services or the Commissioner of Social Services may initiate a proceeding against the non-custodial parent. Almost all of the money paid by the custodial parent for child support will now go to the Commissioner of Social Services since the rights of the custodial parent are assigned to the Commissioner of Social Services when application for public assistance is granted to the custodial parent. If the amount of child support exceeds the amount of the public assistant grant for that particular child, an attorney may advise the client to take the child off public assistance. Medical insurance is also an issue since the courts are now filing petitions against the non-custodial parent if the custodial parent files and qualifies to have a dependent child placed on Medicaid.

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Spousal support is treated differently. A court may reduce or annul arrears for a period prior to the application for same upon the showing of good cause as to why the application was not made sooner. XII MODIFICATION OF SPOUSAL SUPPORT AND CHILD SUPPORT Orders paid through the Support Collection Unit may receive a cost of living adjustment every two years pursuant to the terms of FCA § 413-a. FCA § 451 and DRL § 240 set forth the criteria for the modification of prior court orders of child support. When there was a stipulation of settlement that was incorporated or not merged in the judgment of divorce or a consent order, any party seeking to modify the order was required to prove either an unanticipated change of circumstances or that the child’s needs were not being met by the prior order. Boden vs. Boden, 42 N.Y.2d 210 (1977) The unanticipated standard makes it very difficult to modify the prior court order. A loss of employment alone is usually not sufficient for the court to find the unanticipated change of circumstances since it is very hard to argue that it was never anticipated that a litigant could lose his or her job. See Baker vs. Baker, 83 A.D.3d 976 (2d Dep’t 2011). Downward modification cases under the Boden standard are very difficult to win. See Praeger vs. Praeger, 162 A.D.2d 671 (2d Dep’t 1990). The court will impose a further burden for the litigant to prove that the loss of employment was involuntary and that the litigant has made all possible efforts to find new employment commensurate with his or her ability and skills. There are numerous reported cases regarding the issue of downward modification. You should be aware that almost all of

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the reported cases have denied the non-custodial parent’s application for downward modification of child support and maintenance awards. Carnahan v. Parillo, 112 A.D.3d 1096 (3d Dep’t 2013)(downward modification denied since loss of employment was voluntary). Mofadal vs. Abdelhadi, 88 A.D.3d 886 (2d Dep’t 2011); Schwaber vs. Schwaber, 91 A.D.3d 939 (2d Dep’t 2012); Robert V.C. vs. Polly V.H., 94 A.D.3d 583 (1st Dep’t 2012). The court requires a prima facie showing prior to entitlement to a hearing. S.S. vs. M.S., 30 Misc.3d 1226A (Nassau Co. Sup. Ct. 2011).

Even if a litigant provides the

court with a statement of net worth, the court can still deny the financial relief sought if said litigant fails to supply the court with tax returns or other documents to evidence financial hardship. Gering vs. Tavano, 93 A.D.3d 544 (1st Dep’t 2012). Upward modification cases under the Bowden standard can be equally difficult to prove since it is always hard to prove that the change was unanticipated. The court in Zaratzian vs. Abadir, 128 A.D.3d 953 (2nd Dep’t 2015), denied a father’s motion seeking child support from the mother where a change in custody had been anticipated under the parties’ separation agreement and the agreement only allowed for the father to seek downward modification of his own support obligation as a result of that change. If you are representing the party objecting to the application for an increase, you should make sure the court is aware of the date of the prior order or judgment and that the new law does not apply to your case. It is not a simple standard of calculating new support based upon your client’s increased income. Usually, only after the petitioner has proved the change of circumstances would respondent’s finances be heard.

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New law effective October 13, 2010 provides for a different standard of review for child support orders. Any application made to modify a prior court consent order or an agreement incorporated and not merged in the judgment of divorce which was made on or after October 13, 2010, would only require a lower showing of a substantial change of circumstances instead of the much higher standard of unanticipated change of circumstances or a finding that the child’s needs were not being met. In addition, as to all orders or agreements made on or after October 13, 2010, unless the parties opt out, the court may also modify the child support order where: (i)

three years have passed since the order was entered, last modified or adjusted; or

(ii)

there has been a change in either the party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience.

In Mark P. vs. Teresa P., 37 Misc. 3d 685, 951 N.Y.S.2d 362 (Sup. Ct. Westchester County 2012), the plaintiff’s motion to modify child support obligations was denied without a hearing because “only by an explicit agreement in their stipulation may the parties successfully substitute a different standard for support payment reduction for the well-worn standards established by statutory and case law.” In Raab vs. Raab, 129 A.D.3d 1050 (2nd Dep’t 2015), a father’s motion for downward modification was denied where it was made only eight months after a post-judgment order had been entered and

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no showing of a 15% change in income, let alone whether any alleged loss of income was involuntary. DRL 240(1-b)(h) is applicable to written and executed agreements and stipulations only, and not oral agreements on record. WB vs. FB, 6380/10, NYLJ 120259541350, at *1 (Sup. Ct. Queens Co. Decided April 2, 2013). Receipt of social security benefits by the custodial parent as a result of the disability or age of the non-custodial parent is not a basis for the non-custodial parent to be successful in an application for downward modification. In McDonald vs. McDonald, 112 A.D.3d 1105 (3d Dep’t 2013), the court denied father’s application for downward modification based upon the finding that such benefits were intended to supplement existing resources, not to reduce the father’s obligation to support his children. Id. at 1106. Alienation of the child from the non-custodial parent may demonstrate a change of circumstances to allow the non-custodial parent to cease child support payments. In Matter of Coull v Rottman, ___AD3d___, 2015 NY Slip Op 06723 (2d Dep’t 2015), the Court refused to enforce visitation further when it had been demonstrated that it would be harmful to the child but simultaneously suspended the Father’s obligations to make child support payments as a result of the Mother’s contribution to the child’s alienation. In Wilkins v Wilkins, 129 A.D.3d 1617 (4th Dep’t 2015), the court found that the husband had failed to demonstrate his entitlement to a downward modification of his maintenance obligation. The parties’ separation agreement allowed such an adjustment if he were to suffer a decrease in income due to circumstances beyond his control, but the

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evidence indicated he had gifted significant funds to his adult children, owned a second home, and had transferred assets to his second wife’s name. XIII CUSTODY AND VISITATION a. Procedure to obtain an order DRL § 240 and FCA § 651 are the controlling statutes concerning the issue of custody and visitation. If a litigant is seeking an order of custody in Family Court, a petition for custody is filed. The court issues a summons and the summons and petition is then served on the respondent. All parties must appear in court. It is within the court’s discretion as to whether an ACS investigation is ordered or an attorney for the child is assigned. Judges and Judicial Hearing Officers as well as Special Referees hear custody cases in Family Court. The parties must consent to allow a Judicial Hearing Officer or Special Referee to determine their custody case. In Supreme Court, a Justice or Judicial Hearing Officer or Special Referee can hear a custody case; however it’s far more common for a Supreme Court Justice to try the case. The courts may also appoint a forensic evaluator who is usually a psychologist or a psychiatrist to evaluate the parties and prepare a report with recommendations. Notwithstanding the fact that children’s wishes are to be considered, visitation with the non-custodial parent is presumed to be in the child’s best interests. Brown vs. Erbstoesser, 85 A.D.3d 1497 (3d Dep’t 2011). A biological mother cannot have inconsistent positions and is judicially estopped from denying paternity when said mother has alleged paternity based upon her sworn

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petition and testimony in a prior Court proceeding. In Estrellita A. v. Jennifer D., 40 Misc. 3d 219 (Fam. Ct. Suffolk Co. 2013) aff’d 123 A.D.3d 1023 (2nd Dept 2014), the petitioner and respondent were registered as domestic partners. The respondent gave birth to the subject child who was conceived by artificial insemination. In the instant action, the Court denied the respondent’s motion to dismiss the petition for Custody/Visitation. The Court decided that the petitioner may maintain a Custody/Visitation petition because she was adjudicated as the child’s parent in a previous child support proceeding initiated by the respondent. In order for a parent to lose custody to a third party non-parent, extraordinary circumstances must be present or the parent must be found to be unfit. Bennett vs. Jeffreys, 40 N.Y.2d 543 (1976). This is something to be remembered when a grandparent comes into your office seeking custody of a grandchild. There is no presumption that a child’s best interest is automatically served by awarding custody to a grandparent or other relative. Albertina C. v Jamar J., 125 A.D.3d 483 (1st Dep’t 2015). Grandparents’ visitation is also included in DRL § 240, however FCA § 72 is the controlling statutory authority regarding grandparent visitation. There is nothing in the Family Court Act or Domestic Relations Law granting a sibling the right to visitation with another sibling. There are many different factors that a court takes into consideration when determining custody. The court is especially interested in knowing what the custodial arrangement was immediately prior to the filing of the petition for custody. A court’s determination in any custody case is given great deference and will not be easily overturned. Cheney v. Cheney, 118 A.D.3d 1358 (4th Dep’t 2014). The court will also

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want to know if there is a history of domestic violence between the petitioner and the respondent or whether the family has any history or indications or findings of neglect and abuse. Alcoholism and drug addiction are important factors. One parent’s willingness to encourage parenting time or visitation with the other parent is also a very important factor. While a court may order a parent to obtain counseling or treatment as a component of visitation, a court may not direct a parent to undergo counseling or treatment as a condition of future visitation. Smith vs. Dawn F.B., 88 A.D.3d 729 (2d Dep't 2011). The ability to support a child without the use of public assistance is not a very important factor. Many clients will come to you asking for custody based upon financial stability while complaining that the current custodial parent is either unemployed or otherwise financially unstable. A judge does not grant custody just because one party has more financial resources available. Rather, the court will look at the totality of the circumstances. There is no longer a presumption that a mother is better suited to take care of a child of “tender years”, however from a practical point of view, if petitioner is a stay at home mother and respondent is working full-time, it would be very difficult for the working parent to obtain primary residential custody of a young child. While the preference of a child may be taken into account, especially where the child is of such age and maturity to make their input meaningful, it is not a determinative factor. Raab vs. Raab, 129 A.D.3d 1050 (2nd Dep’t 2015)(granting sole custody to the mother despite the child’s expressed desire to live with the father, where the court otherwise determined that it would be in the child’s best interests to remain with the mother where he was connected with the community and would suffer no disruption).

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The Raab court also determined that the attorney for the child in that case fulfilled her duty by voicing the child’s wishes to the court. The attorney for the child is required to advocate for the child’s wishes as long as the child is capable of knowing, voluntary, and considered judgment, even if the AFC believes the child’s position is contrary to its best interests. In Viscuso v Viscuso, 129 A.D.3d 1679 (4th Dep’t 2015), the court, however, found that an AFC did not violate this duty where the child had been alienated from the father by the mother, and that therefore the child’s expressed wish to sever its relationship with the father was actually contrary to its own best interest. Many courts no longer use the word “visitation” to describe the time given to the non-custodial parent. “Parenting time” has become a popular term used to define the parenting schedule... The visitation schedule is called a “parenting plan” or “access schedule”. There is a recent trend in New York City leaning heavily towards giving both parents an equal amount of time with the children. There also is a very strong movement to grant fathers more custodial rights as to decision-making. Courts can set up spheres whereby a mother may have the final say as to schooling while the father has the final say as to medical decisions. Consent orders are often made in the area of custody since the cost of litigation is so expensive. In a divorce proceeding, it is quite common for the cost of forensics to be approximately $20,000. If both of the parties are working and earning income in excess of the requirements of an 18B attorney, the court will also compel the parties to pay for the cost of the children’s attorney in a pro-rata manner. The abovesaid costs do not of course include the litigant’s own attorney’s fees or possibly that of their spouse if that

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litigant is considered to be the monied spouse and ordered to pay counsel fees by the court. Although the courts do strongly consider the position taken by the attorney for the child, the attorney for the child has no power to veto a proposed settlement agreed to by the parties. The court is not precluded from approving the proposed settlement so long as the court determines that the settlement is in the best interests of the child. McDermott vs. Bale, 94 A.D.3d 1542 (4th Dep’t 2012). b. Procedure to enforce or modify an order In order to modify a prior order of visitation or custody, a litigant must prove a substantial change of circumstances. Dintruff vs. McGreevy, 42 A.D.2d 809 (3d Dep’t 1973) aff’d. 34 N.Y.2d 887 (1974); Macari vs. Macari, 50 A.D.2d 818 (2d Dep’t 1975). The most important factor in determining visitation and custodial rights is the child’s best interests given the totality of the circumstances. Grusz vs. Simonetti, 91 A.D.3d 645 (2d Dep’t 2012). A court may have enough information to make such a determination regarding both custody and visitation without a hearing, but where it does not have that information a hearing must be held to determine the child’s best interests. Matter of Bell v. Mays, 127 A.D.3d 1179 (2nd Dep’t 2015). The court always has continuing jurisdiction up until the age of 18 to determine custody cases. The Second Department in Bugalla vs. Calcagno, 118 A.D.3d 871 (2d Dep’t 2014), granted mother’s request to modify a prior order of custody and visitation resulting in the reduction of father’s parenting time. The court found that “reducing father’s visitation time with the children in order to accommodate the children’s

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increasingly busy schedules and extracurricular activities is supported by sound and substantial basis in the record.” Id. at 872. Moving to another state after the commencement of an action does not deprive a court of home state jurisdiction. In May R. vs. Robert R., V13583/12, NYLJ 1202576305708, at *1 (Fam. Ct., NY, Decided October 12, 2012), the day after the Court granted the mother custody and permission to relocate to Florida, the paternal grandmother, a Texas resident, filed a petition for visitation. The mother moved to Florida with her child on the same day the petition was filed. One month later, the father moved to Texas. The mother moved to dismiss the petition for lack of jurisdiction. The Court held that it has jurisdiction to modify its order under DRL 76-a(2) because when the grandmother filed the petition for visitation, New York was the home state and therefore, New York had jurisdiction to make an initial custody order under DRL 76. The best interests of the child is the standard used by the court, however if there is a prior court order, the party seeking a modification has the initial burden of proving a changes of circumstances. Without a prima facie showing of the change, the court does not have to even order a hearing. This is true even if the initial order was issued on default. The First Department upheld a custody order directing the father to stay away from the children for two years in the father’s subsequent visitation action because the father failed to demonstrate any change in circumstances, a failure that was particularly acute given that the order had been issued only three days prior to he sought visitation. Mohamed Z.G. vs. Mairead P.M., 129 A.D.3d 516 (1st Dep’t 2015). Where there is merely an informal custody arrangement agreed to between the parties, however, there is

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no requirement for a demonstration that there has been a change in circumstances upon an initial application to the court. DeNise vs. DeNise, 129 A.D.3d 1539 (4th Dep’t 2015). The non-custodial party often files enforcement of visitation or custody orders. The party asserting violation can also ask for a finding of contempt. If the court makes a finding that the custodial parent interferes and does not allow court ordered visitation, a change of custody may be ordered by the court. J.F. vs. L.F., 181 Misc.2d 722 (Westchester Co. Fam. Ct. 1999). In Matter of Constantine vs. Hopkins, 101 A.D.3d 1190, 955 N.Y.S.2d 276 (3rd Dep't 2012), the Court held that in order for the petitioner to prevail on the violation petition, petitioner needs to establish that the respondent’s actions or failure to act “defeated, impaired, impeded or prejudiced” a right of the petitioner and that the respondent’s alleged violation was willful. The Court in the Matter of Constantine found that the respondent did not willfully violate the visitation order because he could not afford to solely pay for transportation and the petitioner refused to contribute to the costs and failed to arrange for visitation with the child. A mother’s repeated and unfounded allegations of sexual abuse against the father was found to be a basis to modify a prior order by granting custody to father based upon the court’s finding that such conduct is “so inconsistent with the best interests of the child as to per se raise a strong probability that she is unfit to as the custodial parent.” Matter of Dezil vs. Garlick, 114 A.D.3d 773 (2d Dep’t 2013). The court may or may not order forensics appointment of an attorney for the child on the petition or application for change of custody. All of this is within the discretion of the court, however if your request for forensics is denied and there is a trial and a

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decision, the judge’s refusal to order forensics may result in a reversal. Womack vs. Jackson, 30 A.D.3d 433 (2d Dep’t 2006). A decision limiting a parent from seeking modification of custody until a specific date was reversed on appeal based upon the court’s finding that “a custody or visitation order may be modified at any time upon establishing that there has been a subsequent change of circumstances and that modification is in the child’s best interest. Luis vs. Dayhanna D., 109 A.D.3d 731 (1st Dep’t 2013). As a general rule, courts are also very reluctant to grant an order allowing the relocation of a child to another state. The criteria needed is set forth in Tropea vs. Tropea, 87 N.Y.2d 727 (1996); Bracy vs. Bracy, 116 A.D.3d 1172 (3d Dep’t 2014)(mother denied request to relocate to another county due to rental of a substantially smaller home, a dispute as to the safety of the new neighborhood and failure to reveal why the increase in her commute would not have a negative impact upon her time with the children); Matter of Melgar vs. Sevilla, 127 A.D.3d 1092 (2nd Dep’t 2015)(mother denied request to relocate child to North Carolina where she failed to demonstrate that it would benefit the child and granting father’s cross-motion for sole custody where the child had resided with the father since 2011). When the court does grant a request for relocation, economic necessity and the maintenance of the child’s relationship with the non-custodial relationship are most often highlighted. Newman vs. Duffy, 125 A.D.3d 1474 (4th Dep’t 2015)(highlighting that economic necessity is one of the more persuasive Tropea factors in its order allowing a mother to relocate to Massachusetts); Lecaros vs. Lecaros, 127 A.D.3d 1037 (2nd Dep’t 2015)(allowing a mother to relocate to London where she demonstrated economic necessity, that the move would enhance the children’s

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lives, and that a liberal visitation schedule would allow for the continuation of a meaningful relationship with the father). Courts are hesitant to modify prior orders without the proper showing. Even in a case where the parties had an admittedly acrimonious relationship, the Family Court would not modify custody where the mother failed to demonstrate any change in circumstance or that she and the father could not work together to make decisions for the child pursuant to the agreement then in effect. Matter of Quezada v Long, 126 A.D.3d 907 (2nd Dep’t 2015). An attorney should also conduct a detailed intake prior to advising a client as to the issue of filing an application with the court for modification of a prior court order of visitation or custody. c. The Family Pet There have been recent cases concerning the issue of “custody” of the family pet. The courts have been ruling that the family pet should be given a different classification of custody requiring a hearing to determine which party should be awarded sole possession. See Hennet vs. Allan, 43 Misc.3d 542 (Albany Co. Sup. Ct. 2014); Travis vs. Murray, 42 Misc.3d 447 (New York Co. Sup. Ct. 2013).

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