Archive for July, 2011

Can a Parent Travel with Young Child Abroad Over Custodial Parent’s Objections?

Tuesday, July 26th, 2011

One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.

In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child.  The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.

While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct.  While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.

Same Sex Marriage Bill Passes in New York

Monday, July 4th, 2011

On June 24, 2011, New York Senate voted, 33-29, to give final approval to a bill, A-08354, that recognizes same sex marriage in New York. Govenor Andrew M. Cuomo immediately signed the bill which will become effective in 30 days.

The bill, codified as the Marriage Equality Act amends the Domestic Relations Law to provide:

• A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex

• No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex

• All relevant gender-specific language set forth in or referenced by New York law shall be construed in a gender-neutral manner

• No application for a marriage license shall be denied on · the ground that the parties are of the same or a different sex

Under the bill, the rights under same-sex marriage will include:

• Employer-sponsored health insurance.

• Equitable property distribution, maintenance, custody and visitation if the couple divorces.

• A presumption that a child in a dissolved marriage is the child of both parents.

• Statutory inheritance rights.

• The right to bring a claim for the wrongful death of a spouse.

• The right to seek Workers’ Compensation death benefits.

• The spousal privilege in legal proceedings.