Divorce and Leaving Marital Residence

One of the most common questions asked at the beginning of a divorce case is whether my client can move out of the house. Most of the time, my advice is to stay. Often, it is not what my clients want to hear, however, there may be good reasons not to leave.

The most significant ones are as follows:

Initially, any such move will fundamentally change each party’s negotiating position. In a typical divorce case, if one party stays in the marital home, the other party may be directed by the court to contribute to the mortgage. At the same tine, the party who moved out will have other expenses related to their new residence. This clearly places that party in a disadvantageous financial position.

Leaving the home may jeopardize that party’s custody claim. In a custody dispute, if the children remain in the home with the other spouse, this is highly likely to damage the moving party’s custody claim. If the case takes a long time to resolve, the facts on the ground, i.e., the residence of the children will work against that party. The courts tend to perpetuate status quo with respect to custodial arrangements, and that means that the court would not be likely to direct the children to move, and would be likely to continue existing visitation arrangements.

The move may also have effect on equitable distribution, since it is not uncommon for the courts to grant to the party who was paying expenses associated with the home a credit for the payments made. The credit may significantly impact each parties’ financial situation at the end of the divorce. It may have other economic impact on the parties as well.

The same question receives a different answer if there is domestic violence in the home. Above all other considerations, I advise my clients to protect themselves. In situations involving domestic violence, it is possible to have your spouse removed from the home by obtaining an order of protection even prior to commencement of a divorce action.

Non-custodial Parent’s Right to Particpate in Child Rearing Decisions

In 1996, Mathew’s parents, Jesus Fuentes and Karen Fuentes, were divorced. On August 1, 1996, “Order Directing Custody” was entered, granting Mathew’s mother exclusive custody of Mathew. Mathew attended New York City public schools, where he received special education services to accommodate his disability.

In 2000, because Mr. Fuentes believed that the education accommodations Mathew received were inadequate, he requested that Mathew be reevaluated for additional services. After the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired determined that Mathew’s current services were adequate, Mr. Fuentes requested a hearing to review the committee’s determination. On January 8, 2001, the Impartial Hearing Office denied Fuentes’s request for a hearing. Its Chief Administrator based her denial on Mr. Fuentes’s custodial status. Because Mr. Fuentes was the non-custodial parent of Mathew, Chief Administrator determined that he was not the “person in parental relation” as defined in N.Y. Educ. Law § 3212 and concluded that Mr. Fuentes did not have the right to participate in educational decisions affecting Mathew and refused to process his father’s requests.

Mr. Fuentes, the non-custodial biological father, brought an action in the Federal Court for the Eastern District of New York against the Board of Education of the City of New York, under 42 USC §1983 and 20 USC §1415(f)(1) [IDEA], to review the City’s assessment of his son’s special educational needs and to be granted an impartial hearing for reconsideration of the City’s determination that his son did not need more special education than what he was receiving. After determining that, under New York law, a non-custodial biological parent has no right to make special education decisions, absent a court order or agreement between the parties affording such rights to the non-custodial parent, the Federal Court for the Eastern District of New York dismissed the complaint for lack of standing [FRCP 12(b) and (c)].

The Second Circuit held that although the First and Second Departments of the Appellate Division have held that a non-custodial parent, absent an order or agreement to the contrary, has no right to make educational decisions, the Second Circuit chose to have New York’s Court of Appeals definitively state the law of New York and, thus, certified the following question: “Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.” Fuentes v. Bd. of Ed. of City of New York.

I have previously written about the custodial arrangements and the right of decision-making associated with each type of custody, and while there are many decisions on this issues from the Appellate Division, the Court of Appeals so far has not issued a definitive ruling on this issue. When the Court of Appeals decides this case, this is likely to be the controlling statement of New York law on the rights of non-custodial parents with respect to their right to be involved in educational and other decisions effecting their children. The Court of Appeals is likely to issue its decision in the next few months.

Custody Basics

Joint custody means both parents will have a voice in decision-making involving the child, but does not necessarily imply equal time with both parents.

Sole custody reserves decision-making for one parent, with the other having specific, enforceable visitation rights, but more limited decision-making input.

In determining custody, the court can award joint custody or sole custody. Joint custody primarily involves joint decision making of the parties and does not necessarily mean that the parties will share the children on an equal basis. Joint custody is properly granted where the parties can demonstrate that they are capable of placing the interest of the child above their own needs. On the other hand, sole custody involves decision-making by the custodial parent.

Although New York courts are not generally willing to grant joint custody in a heavily contested matter, the real differences between joint and sole custody are presently far less than in previous years as a result of the courts providing the non-primary residential parent with significant input to medical and educational information on behalf of the children as well as providing that parent access to extracurricular activities and other day-to-day involvement with the children.

In a contested matter, the court is likely to appoints a lawyer to represent the child or children, who previously was known as a “law guardian.” Depending upon the resources of the parties, this attorney may be paid by the parties in addition to their payment of their own attorneys. The role of the attorney for the child is important in protecting the interests of the children and in making recommendations to the court.

Under some circumstances, the court may determine that it is appropriate to divide decision-making authority with respect to the children. Wideman v. Wideman, 38 A.D.3d 1318 (4th Dept. 2007). The essential consideration in custody determinations is the child’s best interest, given totality of the circumstances.

In Wideman v. Wideman, the Appellate Division upheld the lower court’s award of joint custody to the parties despite a well-established record of acrimony between the parties and the prediction of the parties and the experts that the parties would not be able to agree on decisions involving the children. The lower court’s decision to divide the decisions involving the children between the parents was held to be a sound one. The mother was granted decision making authority with respect to religion, finances, counseling/therapy, and summer activities; the father was given decision making authority with respect to education, medical/dental care, and extracurricular activities.

The factors that the court considers in making its decision include: parental guidance by custodial parent, each parent’s ability to provide for the child’s emotional and intellectual development, ability to provide for the child financially, relative fitness, stability of the household, willingness to foster relationship with non-custodial parent, and the effect an award of custody to one parent may have on other parent and child’s relationship.

Shared custody typically refers to the way the parents can agree on how to divide time between two homes and demonstrate the ability to cooperate.

Split custody is a situation involving more than one child, where one child’s primary residence is with one parent and another child’s is with the other parent. While there should be a reluctance in separating siblings, it can be done where the best interest of each child lies with a separate parent.

Child Support In Shared Custody Situations

Child support under Domestic Relations Law §240 or Family Court Act §413 is not difficult to calculate in situations where there is a parent who clearly has a primary physical residence of the child. However, where the child spends equal time with both parents, these issues become a lot more complicated. Domestic Relations Law §240[1-b](f) requires that “The court shall calculate the basic child support obligation, and the non-custodial parent’s pro rata share of the basic child support obligation”. Therefore, which parent becomes the non-custodial parent in shared custody situation? This question was addressed in the 1998 case of Baraby v. Baraby, 250 A.D.2d 201 (3rd Dept. 1998).

In Baraby, the Appellate Division held that:

where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support.

Since the statute is silent as to joint custody arrangements, the court ruled that for purposes of complying with the statute, one parent must be deemed “custodial” and the other “non custodial.” This step must be taken before a deviation from the support guidelines could be made under Domestic Relations Law §240[1-b](f) and (g). The parent with higher income is declared to be the non-custodial parent for child support calculations. This result problematic in situations where the parents’ incomes are close to each other.

For parents who are contemplating true shared custody, the issues of child support must be carefully addressed in the separation agreement to provide language explaining the contemplated child support arrangement and the reasons the parents are entering into such arrangement. Baraby does not stand for the proposition that the parent with the higher income must pay full child support. The parents are still free to opt out of the Child Support Standards Act, provided that at least minimum statutory child support is being paid, and the reasons for the opt-out are clearly stated.

If the court is deciding these issues in the contest of child support modification, then the party with the higher income should present information allowing the court to make a deviation from the child support guidelines pursuant to Domestic Relations Law §240[1-b](f) and (g).

Relocation and Modification of Custodial Arrangements

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate, the other party objects to such proposed move and argues that such move may negatively impact on the other parent’s relationship with the child. Assuming that the parties’ Judgment of Divorce, or separation agreement, does not conclusively address this issue, the party seeking to relocate will typically need to seek the court’s permission to do so.

As laid out in the leading case of Tropea v. Tropea, 87 N.Y.2d 727 (1996), the issue is to be determined is whether the proposed relocation is in the best interest in the child. In doing so, the court is to consider the following criteria:

1. Each parent’s reason for either seeking or opposing the relocation;

2. The current state of the relationship between each parent and the child;

3. The impact that the relocation will have on the quality and of the child’s relationship
with the non-custodial parent;

4. The emotional, economic and educational effects that the move will have on the
child; and

5. The feasibility of maintaining the relationship between the child and non-custodial
parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

In Noble v. Noble, 52 A.D.3d 490 (2nd Dept. 2008), the mother sought to relocate from relocation from Long Island to upstate NY. The court held that the proposed relocation was in children’s best interests since the proposed move would provide economic, emotional and educational benefits for the mother and parties’ children without precluding meaningful and regular contact between children and father.

In Mallory v. Jackson, 51 A.D.3d 1088 (3rd Dept. 2008), the parties consented to June 2006 order awarding joint legal custody with mother having primary physical residence of the children. In October 2006, mother sought permission to relocate with parties’ children to North Carolina. Mother moved to North Carolina while petition was pending, leaving children with father at maternal grandmother’s home in Schenectady County. Mother was required to demonstrate by preponderance of evidence that proposed relocation would be in children’s best interests. Mother alleged that father had failed to provide her financial support throughout their relationship, and she was moving to be near a relative who offered financial assistance. The Appellate Division held that mother, who had already relocated, failed to present evidence at hearing that her financial situation in North Carolina was significantly better than while living in New York. Mother’s remaining extended family continues to reside in New York. The proposed relocation to North Carolina would deprive child of meaningful contact with father and members of their extended family and mother failed to establish existence of compelling reason to justify relocation of children to North Carolina.

If the court does not find the proposed move to be in the best interests of the children, the parent who has the primary physical residence of the children usually has a choice between staying or losing that primary physical residence to the other parent.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

Recently, in divorce and custody cases, the so-called “parental alienation” factor has become particularly prominent among the statutory criteria dealing with custody. The court decisions have described “parental alienation” in terms of failure to support the child’s relationship with the non-custodial parent. This particular issue has carried a tremendous force in custody cases, and often was used to override the primary caregiver criterion. The significance of “parental alienation can be explained as follows. If “parental alienation” is proven, it often has resulted in a change in custody despite the long-standing parenting arrangements that have been successful otherwise.
The problem with claim of “parental alienation” is that in some cases judges have treated allegations of abuse and neglect that could not be proven as tantamount to “false” allegations maliciously brought to advance an agenda of alienation. This has placed concerned parents between the proverbial rock and the hard place. If they act in good faith to protect their child, they do so at risk of losing custody. If they don’t act, they are abdicating their parental obligation to protect their child. The Legislature has acted in response to this problem and the Governor has signed into law an amendment to DRL § 240 to provide protection for litigating parents who report abuse or neglect in good faith and based on a reasonable belief that the allegation is legitimate.
Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.