Archive for the ‘Family Law’ Category

Violation Petition Must Be Sufficiently Specific to Provide Notice of Alleged Violation

Saturday, February 4th, 2012

In Miller v Miller, 90 A.D.3d 1185 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to mother with visitation to father as agreed between the parties. The order, among other provisions, required that the children be properly supervised at all times, and that neither parent smoke or permit a third party to smoke in a vehicle in which the children are passengers.

In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order by failing to properly supervise and discipline the children, since she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father’s rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a child neglect investigation by the local Department of Social Services.

The Appellate Division held that the petition was subject to the requirements of CPLR §3013, and it was required to “be sufficiently particular” as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. Since petition only included generalized allegations of the petition, even liberally construed, it had failed to provide the mother with notice of a particular event or violation such that she could prepare a defense.

Further, according to the Appellate Division, the father failed to assert how the mother’s alleged failings defeated, impaired, impeded or prejudiced his rights, as required to warrant a civil contempt finding. While Family Court ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, the investigation did not fix the defects in the father’s petition. Accordingly, the appellate court concluded that the trial court properly dismissed the petition without a hearing.

The rule for sufficiency of petitions is simple: a party must alleging facts with sufficient particularity so that notice of events and elements of legal issues is given to the opposing party and the court. If petition is insufficient, it will be dismissed.  Alternatively, the court may give a party an opportunity to amend the petition.

Parent’s Obligation to Pay for College Is Not Limited To Cost of SUNY Education Unless Proven Otherwise

Sunday, November 13th, 2011

In Pamela T. v. Marc B., 2011 N.Y. Slip. Op. 21355 (N.Y.Sup.2011), the court had to decide whether the parent’s obligation to pay for college should be limited to the so-called “SUNY cap”. The Supreme Court concluded that parent’s argument that before a parent can be compelled to contribute towards the cost of a private college, there must be a showing that a child cannot receive an adequate education at a state college, has no basis in the law.

The parties were divorced on December 23, 2008 and have two sons, 18 and16 years old. Their judgment of divorce was silent as to the payment of the children’s college tuition and expenses.

In 2007, the older child was diagnosed with emotional and learning/anxiety disorders, which resulted in certain educational accommodations. Despite his disabilities, he graduated in 2011 from a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, as well as other schools. The costs of college education varied from Syracuse at approximately $53,000 a year to attend, to SUNY Binghamton and SUNY Buffalo that cost about $18,000 a year. The child decided to attend Syracuse which he is now attending as a freshman.

The both parents are practicing attorneys in New York City. Plaintiff’s 2010 federal income tax return reported adjusted gross income of $109,896. Defendant’s 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff’s net worth statement showed she had assets of approximately $1,230,000. Defendant’s net worth statement showed he had assets of approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools.

Defendant did not oppose an order directing him to contribute to his older child’s college education, but he requested that the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant’s position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.

The court stated that Domestic Relations Law 240(1- b)(c)(7) gave the courts of this state the authority to “direct a parent to contribute to a child’s private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so “having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” The courts interpreted the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child’s academic ability and endeavors, and the type of college that would be most suitable for the child.

The Court stated that DRL 240(1-b)(c)(7) does not provide for a SUNY cap. The SUNY cap appeared in a number of decisions rendered since the enactment of the statute. These cases have not provided an explanation as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college expenses.

The court found that Berliner v. Berliner, 33 A.D.3d 745, 749 (2d Dept. 2006) was instructive because in that case the Second Department stated that there “is no basis in this record” for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent’s obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision’s reference to the “so-called SUNY cap” implied that even the Second Department views the SUNY cap as something less than an established doctrine.

The court rejected defendant’s argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton, in order for him to be required to pay Syracuse’s higher expenses. The decision noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is “better” than another. The court found that there was sufficient showing to support the child’s choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. If there are funds are available to finance the child’s education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend.

The court further held that one of the factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, the court could reasonably assume that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.

Having found that defendant had to contribute to his son’s education at Syracuse University, the court had to consider the defendant’s ability to pay. It was defendant’s position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he argued that he should have to pay no more than $9,000 a year towards his son’s education, an amount that is roughly 50% of the present annual cost of a SUNY school.

The court rejected defendant’s contention as to his inability to pay a significant share of the child’s actual educational expenses being incurred at Syracuse. The court held that the parties’s incomes and assets would allow them to pay for their child’s education at Syracuse.

The court further held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child’s college expenses. Although defendant’s contribution should be less than plaintiff’s, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. On this basis, the court held that defendant shall be obligated to contribute 40% of the total cost of the older child attending Syracuse University, with those costs to include tuition, room and board, fees and books.

Thus, this decision confirms that if a parent is hoping to place a limit on future college costs, it is very important to include provisions in the parties’ separation agreement or settlement stipulation placing an upper limit on such costs.

Need to Preserve Relationship with Parent Does Not Take Precedence Over Economic Factors in Relocation Cases

Saturday, October 29th, 2011

In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.

The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.

The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.

The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends.

Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.

While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.

Family Court Referees and Their Authority to Hear Cases

Sunday, September 18th, 2011

Most of the cases in Family Court are decided by Family Court Judges who preside over most Family Court hearings. The Family Court Judges, here in Monroe County and elsewhere in New York State, typically hear child custody, visitation, adoption, juvenile delinquency and other cases. However, here in Monroe County, Court Attorney Referees hear custody, visitation, and order of protection cases. Family Court Attorney Referees are appointed pursuant to the Family Court Act and CPLR.

One of the first things that takes place in a case before a Family Court Attorney Referee is that the parties and their attorneys will be asked if they will agree to the Referee’s jurisdiction to hear and determine the matter. If the parties agree, the Referee will asked them to sign a stipulation confirming their consent. If the parties do not consent, the case is usually removed and heard by the Family Court Judge.

It is critical for the Referee to make sure that the parties consent to his jurisdiction to hear the case. A recent case, Gale v. Gale, 2011 NY Slip Op 06490 (2nd Dept. 2011), demonstrates what happens if the referee fails to obtain that consent. In Gale, the mother filed a petition seeking to modify provisions of the parties’ judgment of divorce. The case was assigned to a Family Court Attorney Referee who heard the case and ultimately modified custody provisions of the judgment of divorce, granting the petitioner sole custody of the children. The father appealed, arguing that the referee lacked jurisdiction to hear the case since the referee had failed to have the parties sign the stipulation or otherwise establish that the parties consented to her jurisidiction. The Appellate Division agreed with the father and reversed.  Specifically, the Appellate Division stated that

Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. Contrary to the mother’s contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge. Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father’s previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father’s petitions related to custody and visitation and the mother’s petition to modify custody, and the referee’s order determining those petitions must be reversed. (citations omitted)

While the parties cannot choose the person who will decide their case, they do not have to agree to the Family Court Attorney Referee to hear and decide it. Sometimes there are reasons to have the case heard by a Family Court Judge, and the parties should consider not agreeing to the referee’s jurisdiction under appropriate circumstances.

Interference with Visitation May Result in Change in Custody

Sunday, September 4th, 2011

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

Step-Parent Adoption and Consent of Biological Father

Saturday, August 6th, 2011

Step-parent adoptions are generally simple if the biological parent provides his/her consent to the adoption. However, such consent may not be obtainable in every situation. Under some circumstances, consent of the biological parent will not be required by the court. Generally, for adoption purposes, the court qualifies biological parents into two categories: consent parent and notice parent.

If a parent is deemed to be a consent parent, that parent’s consent is required in order for the adoption to proceed. If a parent is deemed to be a notice parent, that parent receives a notice of adoption but his/her consent is not required.

The consent of a parent to the adoption of his child will not be required if the parent has abandoned the child. The child will be deemed abandoned if the parent evinced an intent to forego his parental or custodial rights and obligations by failing for a period of six months prior to the filing of an adoption petition to visit the child and communicate with the child or person having legal custody of the child although able to do so”. Domestic Relations Law §111(2)(a). The courts presume, in the absence of evidence to the contrary, the ability to visit and communicate with a child or person having custody of a child. DRL § 111(6)(a).

DRL §111(6)(b) states that, “evidence of insubstantial or infrequent visits or communication by the Father shall not, of itself, be sufficient as a matter of law to prevent a finding that the consent of the Father to the child’s adoption shall not be required”. Insignificant expressions of parental interest will not by themselves prevent a finding of abandonment.

Further, DRL § 111(6)(c) states that, “the subjective intent of the Father whether expressed or otherwise unsupported by evidence of acts specified in DRL § 111(2)(a) manifesting such intent, shall not prevent a determination that the consent of the Father to the child’s adoption shall not be required”.

In Matter of Ethan, 32 Misc.3d 1212(A) (Monroe Co. Fam. Ct. 2009), the birth father opposed proposed step-parent adoption and argued that his consent was necessary. Judge Joseph G. Nesser held a hearing and determined that the biological father has abandoned the child for a period of six months or longer, preceding the filing of the adoption petition.

Specifically, the court found that Father had not seen the child in well over one year before the adoption petition was filed nor did he speak to the child within that six month period. It was also uncontroverted that there were no cards, gifts, financial assistance or child support forwarded by father to mother for the child at least six months prior to the adoption petition being filed. Father’s letters postmarked May 13, 2008 and June 20, 2008 were forwarded to mother concerning the child. The court found that this was the only contact in over one year prior to the adoption petition being filed. Further, father knew members both in his family and in mother’s family to contact, but never had them contact mother to communicate with the child within six months prior to the filing of adoption petition.

The court also found that father was able to contact mother, knew her address; her telephone number; and her mother’s address and telephone number which were published but failed to contact her within six months prior to filing the adoption petition.

Just as important was the court’s finding that the father, for more than one year prior to the filing of the adoption petition, never provided any child support to Mother or any type of financial assistance whatsoever. Mother’s last child support payment was received on November 7, 2005, and the last financial assistance she received from father was in February of 2006.

Based on the above facts, the court determined that father evidenced an intent to forego his parental rights and obligations that was manifested by his failure for a period of six months to visit the child and communicate with the child or with mother, although able to do so, and of his failure to provide fair and reasonable child support according to his means for the child. Thus, the court dispensed with the father’s consent and allowed step-parent adoption to proceed.

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.

Can a Child Bring Petition Seeking Modification of Custody?

Saturday, June 18th, 2011

While the vast majority of cases petitions seeking to modify custody are brought by parents, can any one else bring a petition seeking to modify custody? I have written previously about petitions brought by non-parents, such as grandparents or someone who has a relationship with a child. A recent decision brought forth yet another party who can bring a petition seeking to modify custody – a child himself. In a recent decision, Trosset v. Susan A., 2011 N.Y. Slip. Op. 21151 (Fam Ct. Otsego Co. 2011), the court held that a child had standing to bring a petition seeking modification of present custodial arrangement. In Trossett, the child’s attorney filed a petition to modify prior court order. Respondent moved to dismiss the petition arguing that child’s attorney lacks standing to file petition concerning custody on behalf of child. The court held that  ”[w]hile absence of specific authority regarding custody and visitation is problematic, absence of statute granting child standing, such standing depends upon whether party has alleged facts showing disadvantage to himself or herself.” (citations omitted).  According to the decision, the attorney for child made allegations that directly relate to child’s desire to live with father. The court opined that the child has stake in outcome sufficient to confer standing upon him to file petition, or by child’s attorney on child’s behalf.

The decision does not provide much in a way of facts or legal authority for the court’s decision, however, I would guess that the child was older and, therefore, would have an opportunity to have input on any custody decisions. In addition, I would think that the parties were involved in court proceedings previously since the child had an attorney representing him.

Since the decision dealt with procedural issues related arising out of petition being filed by attorney for the child, we may never know how the case was resolved. However, I suspect that this issue may be appealed in the future and we may learn of further developments in the case.

Statute of Limitations and QDROs

Saturday, June 11th, 2011

One of the questions that I was asked several times during the last year was whether there is a statute of limitations applicable to Qualified Domestic Relations Orders (QDROs)? This question usually come up in situations where one former spouse was entitled to a portion of the other former spouse’s retirement benefits, however, the QDRO was never done, and a substantial period of time has passed. If there was an applicable statute of limitations, the former spouse who has failed to act would lose his or her right to collect a portion of the former spouse’s retirement.

However, a couple of recent decisions made it clear that with respect to QDROs, there is no applicable statute of limitations and a QDRO can be submitted to the court at any time. In Denaro v. Denaro, 2011 N.Y. Slip. Op. 04409 (2nd Dept 2011), the Appellate Division, Second Department, held that “the statute of limitations does not bar issuance of the QDRO.”  Relying on Bayen v Bayen, 81 A.D.3d 865 (2nd Dept. 2011), the court held that ”[M]otions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation… [B]ecause a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate action in order for the court to formalize the agreement between the parties in the form of a QDRO”. Id. (citations omitted.)

While I would not recommend to anyone delaying preparing and submitting a QDRO, any such submission is not going to be barred by a statute of limitations. At the same time, any late submission is likely to cause another set of problems if the retirement asset is in pay status  and payments are being made to the other spouse.

Tax Implications in Divorce – Need for Trial Evidence

Sunday, June 5th, 2011

One of the issues that frequently comes up in divorce is cases has to do with tax implications of the divorce action.  Tax issues may involve dependency exemptions, or may involve issues dealing with allocation of taxes on income or assets subject to equitable distribution.  The courts have addressed these issues in the past and have always required some admissible proof with respect to tax implications of the relief sought in the divorce action. However, some parties still fail to present admissible trial evidence that would allow the court to make decisions allocating tax liabilities, if any.

In Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011), the Appellate Division had to address whether the trial court properly disregarded the tax consequences impacting plaintiff’s receipt of fifty percent of monies which defendant had earned in the fiscal quarter preceding commencement of the divorce action.  The Appellate Division held that since defendant failed to present evidence from which the court could determine the amount of such taxes, the trial court acted properly.  The Appellate Division relied upon D’Amico v. D’Amico, 66 A.D.3d 951 (2nd Dept. 2009).  In D’Amico, the court held that “[W]hile this court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party, where the party seeking the discount fails to present any evidence from which the court could have determined the dollar amount of the tax consequences, the computation of the award without regard to tax consequences will be deemed proper”. (citations omitted)

Therefore, if there are tax issues associated with dependency exemptions, maintenance, retirement assets or equitable distribution, in order to have trial court consider those issues , a party must present admissible evidence of any tax consequences that may result. If a party fails to do so, the trial court will not consider any tax implications. As a result, a party seeking the court’s decision with respect to tax issues will have to present expert testimony of an accountant who would be able to present admissible evidence of any tax implications.