In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.

These are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

Once the acknowledgment is signed, there is a limited period of time during which the acknowledgment can be vacated.  Usually this comes up in a situation where either the father or the mother discovers that the father of her child is not the biological father and wants to change his name to either hers, or that of the biological father. Unfortunately, it is not that simple.

Most of the time, a child, who has the father’s last name, has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married. In this situation, changing the child’s last name to either the mother’s name or the actual father’s name may require several steps in court, because the “notice” (the one who signed the acknowledgment) father can object to any proposed change.  In a situation where paternity needs to be established (or re-established), Family Court is the proper venue for filing a petition.  The mother can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the father is not the actual father, or; either she or the biological father, can file a Paternity petition.  In the first situation, assuming that the filing is timely, the court granting the mother’s request for vacating the Acknowledgement of Paternity does not automatically establish the real father of the child as the father for any purpose. Once the Acknowledgment is vacated, legally, there is no father that the court will acknowledge until there is someone that can be identified and brought to court.  Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the “legal” father, from the Court.  This is the legal document that is required by the Department of Health and Mental Hygiene (”DHMH”) to issue a new birth certificate with the new name on it, that of the father’s.

In second situation, if the either parent files a petition for Paternity, then the father can either consent to paternity or, if he does not, the court can order Genetic Marker (DNA) Test to confirm that he is actually the biological father.  However, before the DNA test is ordered by the court, it will have to address any equitable estoppel issues that may arise.  Assuming that equitable estoppel issues have been resolved, and the DNA test takes place, then the Court will issue an Order of Filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Equitable estoppel in those situations may be raised both offensively and defensively by either the man initially believed to be the biological father or the man believed to be the true biological father.  Not all fathers cooperate since an Order of Filiation typically results in an order for child support and, possibly, a liability for birth expenses.  The courts are reluctant to vacate an Acknowledgement of Paternity where there is currently a child support order against the man, initially believed to be the biological father, unless the court can identify the actual father so that the child has someone to support him.

There are several good reasons for someone to establish paternity.  For example, although a father whose name is on the child’s birth certificate is considered the “notice” father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited, until paternity is established.  A father whose paternity has been established is the “legal” father, on the other hand, has no limits with regards to his rights in any case in any court.

In almost all circumstances, it is wise to ascertain who the actual father is as soon as possible after the child’s birth, so as to limit any other legal issues that may arise, such as equitable estoppel.

Collaborative Law is a method for conflict resolution in which the participants focus their efforts on reaching a mutually agreeable resolution. Attorneys and other professionals are retained during the collaborative process for the sole purpose of assisting their clients in reaching this goal.

The client and their lawyers agree to work respectfully and in good faith to gather all information needed to reach an agreement, including developing the interests of each client. The participants do not engage in traditional discovery process since it tends to be expensive and lengthy. The clients and their collaborative attorneys agree from the beginning that they will produce and exchange all necessary information and documents voluntarily and in a timely fashion. Non-legal professionals are usually retained as joint neutrals and work together with the participants to define the scope of their assignment and to gather information.

The process typically includes various meetings at which the clients and their attorneys, as well as other professionals meet together to discuss the issues, make any necessary interim arrangements, and to plan for information gathering (not every professional will be present at every conference.) These conferences continue to be utilized to exchange and clarify information and to brainstorm possible options for resolution. The clients and their lawyers focus on educating everyone regarding the underlying information, each client’s interests and possible solutions. Out of this process, a settlement which meets the approval of all clients can be fashioned. Negotiations are based upon efforts to find options that will serve the interests of all clients and other affected persons, and if applicable, create the possibility for a positive continuing relationship.

The clients and their collaborative attorneys agree that they will not go to court during the time they are working towards settlement. If the clients are unable to reach an agreement, the collaborative attorneys and other professionals withdraw and litigation attorneys take the dispute to court.

Collaborative family law started with one attorney in Minnesota in 1990 and is now practiced across the United States, Canada, and internationally. Collaborative family law was started in Rochester, New York, and Monroe County, a few years ago as an attorney centered method in family law. However, more recently, other affiliated professionals including financial analysts, psychologists, counselors and coaches also became involved.  Here in Rochester, collaborative professionals belong to Collaborative Law Association of the Rochester Area, Inc. (“CLARA”) which includes among its members attorneys, child specialists, coaches, mediators and financial professionals.

Here are some questions and answers about Collaborative Law.

1. What is Collaborative Law?

Collaborative Law is a way to resolve disputes between people in a fair, open and respectful manner. In Collaborative Law, the goal is to reach a mutually acceptable settlement of a dispute that both parties will be able to abide by. The parties retain Collaborative professionals such as attorneys, accountants, financial planners, and therapists, who agree to work in good faith to gather and share all information needed to reach an agreement. The parties and their Collaborative attorneys agree in advance that they will not go to court to ask a judge to resolve their dispute for them during the collaborative process. If they are unable to reach an agreement, and one of the parties decides to go to court, the Collaborative professionals withdraw from the case. Another set of attorneys is then retained by the parties to represent them in court.

2. How does Collaborative Law differ from other methods of dispute resolution?

There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, lawyers work hard to convince a judge (or jury) that the lawyer’s client’s version of facts is correct. Often, this includes challenging the other party’s version of the facts. Trial is often compared to a battle, in which the best side wins. However, all lawyers understand that the “best side” doesn’t always win and that in many disputes, the party who “wins” at trial still loses in other ways. In some circumstances, litigation is the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, a third party decision may be needed. Litigation usually costs more than other forms of dispute resolution and the outcome is typically less satisfactory.

In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, attorneys serve only in a consulting or reviewing capacity. In other situations, attorneys participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who have similar understanding of the financial and other information being presented.

Collaborative Law combines the positive qualities of litigation and mediation. As in litigation, each party has an independent lawyer who will give her or him quality legal advice and will assist in putting forward his or her interests. Similarly to mediation, the parties and their Collaborative attorneys commit to both an open information gathering and sharing process and to resolve their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as child specialists, financial specialists, coaches, vocational counselors or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for all of them.

3. How is information gathered in Collaborative Practice?

The parties do not engage in expensive legal procedures to obtain information. The parties and their Collaborative attorneys agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or unnecessary delays are not permitted. If a party is not acting in good faith and “hides the ball”, it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative process can be terminated.

The parties decide what type of additional assistance is needed in the information gathering process and jointly engage consultants. For example, the parties can jointly hire a financial specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. Or, they can jointly engage an appraiser to provide them with an opinion regarding the value of a particular asset.

4. How are questions relating to children addressed in Collaborative Practice?

One of the most important aspects of Collaborative Practice in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children’s interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, the parents need assistance in transitioning from parenting in one household to parenting in two households. Divorce coaches and child specialists can assist parents in developing effective communication and in creating a parenting agreement. The Collaborative attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.

5. How do the parties and professionals work together?

After initial meetings with their own Collaborative attorneys, the typical process is to start the case with a 4-way conference — the parties and Collaborative attorneys, and sometimes coaches, meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the parties can work individually and jointly with coaches to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as financial specialists, child specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. The multi-person conferences continue to be the normal means of exchanging and clarifying information and to brainstorm possible options for resolution. The Collaborative professionals work together and with their clients to plan each meeting. The parties and Collaborative attorneys focus on educating everyone regarding the underlying information, each party’s interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be fashioned.

6. Does it work to have everyone together in the same room in the middle of a conflict?

The job of the Collaborative professionals is to establish positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative professionals help each client to present his or her interests and needs in a positive manner that will be heard by the other participants. Meeting together can help everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.

7. Must an agreement be reached in Collaborative Practice?

No. All parties must voluntarily agree to the solution. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they won’t receive everything on their “wish list.”

8. If the parties reach an agreement through Collaborative Practice, what happens next?

The Collaborative attorneys will draft the necessary legal documents to memorialize the parties’ agreement. This paperwork is then submitted to the court for approval. A court hearing is not required.

9. What happens if a settlement cannot be reached?

If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial.

10. Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?

Attorneys are typically trained to approach cases with the underlying assumption that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being “what will happen if we go to court.” “Going to court” can often become a threat that makes communications difficult and pushes the parties apart rather than moving them toward a settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are “at the courthouse steps,” after incurring substantial attorney’s fees and depleting their emotional resources.

The agreement by both the parties and Collaborative attorneys that their Collaborative attorneys will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative attorneys will not be representing the parties in court. The tendency to “drift” to court as the default decision-making method is reduced.

11. Who should consider the Collaborative approach for their dispute?

Collaborative Practice works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. In Collaborative Practice, you maintain control over your decision making rather than letting a judge decide. You can also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial.)

People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives. Collaborative Practice will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of your conflict.

You should also consider Collaborative Practice if you wish to dramatically reduce your legal fees. A dispute that goes through the entire legal process including a trial can cost tens of thousands of dollars for each party. The formal legal procedures take much more attorney time (and your money) than the informal process used in Collaborative Law. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces your fees.

12. What do I do if I want to use Collaborative Practice for my dispute?

You will need to find a Collaborative attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You can discuss with the Collaborative attorney the ways of approaching the other parties about the collaborative process, which can include you discussing the idea with him or her, your attorney contacting the other party, or your attorney discussing it with the other party’s attorney(s), if one has been retained. In the alternative, you can contact coaches or other professionals who may be involved in the collaborative approach and discuss the process with them.

On July 1, 2010, the Assembly passed no-fault divorce bill, which previously was approved in the Senate. If signed by Gov. David Paterson, New York would no longer be the only state that doesn’t allow no-fault divorce.

Under no-fault divorce, couples would be allowed to divorce after six months and the resolution of all financial issues. They would not have to prove fault, such as abandonment or adultery, or develop a separation agreement and live apart for at least a year in order to get divorced. Proponents said the changes would save time and money and court resources.

The Assembly and Senate previously approved two other bills related to no-fault divorce. One would require counsel fees to be awarded at the beginning of a divorce process and the other would address issues related to spousal support. The measure dealing with spousal support would establish temporary spousal maintenance while the divorce proceeding is pending, revise factors for final maintenance awards and require the Law Revision Commission to study the economic consequences of divorce and maintenance actions.

While the elimination of marital fault is extremely important and would greatly benefit people seeking divorce here in Rochester and elsewhere in New York State, it is the bill dealing with temporary spousal support that is likely to present some significant legal issues if it becomes law.

The bill is interesting since unlike the existing law regarding temporary spousal support, it utilizes a formula to calculate a temporary spousal support award. The amount of spousal support and its duration are calculated on the basis of a formula as follows:

3 5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
4 ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
5 PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
6 MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
7 THIS SUBDIVISION.
8 B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
9 BE USED:
10 (1) “PAYOR” SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
11 (2) “PAYEE” SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
12 (3) “LENGTH OF MARRIAGE” SHALL MEAN THE PERIOD FROM THE DATE OF
13 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
14 (4) “INCOME” SHALL MEAN:
15 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
16 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
17 THIRTEEN OF THE FAMILY COURT ACT; AND
18 (B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
19 TO SUBDIVISION FIVE OF THIS PART.
20 (5) “INCOME CAP” SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
21 DOLLARS OF THE PAYOR’S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
22 ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
23 THE PAYOR’S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17166-10-0
A. 10984–B 2

1 AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
2 URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
3 LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
4 NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
5 DETERMINE AND PUBLISH THE INCOME CAP.
6 (6) “GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE” SHALL MEAN THE SUM
7 DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
8 (7) “GUIDELINE DURATION” SHALL MEAN THE DURATIONAL PERIOD DETERMINED
9 BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
10 (8) “PRESUMPTIVE AWARD” SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
11 RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT’S
12 APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
13 PARAGRAPH E OF THIS SUBDIVISION.
14 (9) “SELF-SUPPORT RESERVE” SHALL MEAN THE SELF-SUPPORT RESERVE AS
15 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
16 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
17 FAMILY COURT ACT.
C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
19 NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
20 MINING THE INCOME OF THE PARTIES:
21 (1) WHERE THE PAYOR’S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
22 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
23 FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
24 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR’S INCOME UP TO
25 AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE’S INCOME BY FORTY
26 PERCENT.
27 (C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
28 DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
29 (D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
30 OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
31 IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
32 OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
33 (2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
34 (A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
35 TENANCE FOR THAT PORTION OF THE PAYOR’S INCOME THAT IS UP TO AND INCLUD-
36 ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
37 FOR THE PAYOR’S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
38 DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
39 THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
40 (I) THE LENGTH OF THE MARRIAGE;
41 (II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
42 (III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
43 MARRIAGE;
44 (IV) THE AGE AND HEALTH OF THE PARTIES;
45 (V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
46 (VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
47 (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
48 (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
49 NIAL ACTION WITHOUT FAIR CONSIDERATION;
50 (IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
51 PRE-DIVORCE SEPARATE HOUSEHOLD;
52 (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
53 TO INHIBIT A PARTY’S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
54 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
55 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
56 SERVICES LAW;

In some respects, having a formula creates some predictability with respect to temporary spousal support awards that has been missing in the present law. At the same time, the blind application of the formula is likely to cause a different set of problems. If the bill passes, how these provisions are going to be interpreted by the courts is somewhat uncertain. As far as the divorce lawyers are concerned, this is likely to force divorce lawyers to spend even more time counseling clients with respect to temporary spousal support and post-divorce spousal support issues.

In addition, while noting that the father’s request during the contempt hearing for a change in custody has provided adequate notice to the mother, the Court amends the father’s application to conform to the evidence presented at the hearing and ordered a hearing regarding modification of custody.

The court went into great detail describing the mother’s behavior toward her ex-husband. The factual findings concerning the mother’s behavior as stated in the decision are extensive and in view of the mother’s behavior, I will quote them in order to demonstrate the mother’s conduct.  The mother’s behavior included the following:

“Plaintiff intentionally scheduled their child’s (N.’s) birthday party on a Sunday afternoon during defendant’s weekend visitation, and then refused to permit defendant to attend. She demanded that N. be returned home early, in order to “prepare” for her party, but D., the other child, was enjoying the time with her father and wished to remain with him until the party began. Plaintiff castigated N. for “daring” to invite her father to take a picture of her outside her party. According to the plaintiff, “this doesn’t work for me!” Plaintiff threatened to cancel N.’s party, and warned her that her sister, too, would be punished “big time” for wanting to spend time with her father. Plaintiff’s taped temper tantrum, offered into evidence, vividly detailed one instance of how D. and N. have been made to understand that enjoying time with their father will be met with their mother’s wrath and threat of punishment.”

Mother consistently lied about father’s custody rights, including to third parties.  Specifically:

“Plaintiff conceded that when she completed N.’s registration card for XXX., she wrote that defendant is “not authorized to take them. I have custody. Please call me.” At trial, she claimed to fear that defendant would retrieve the girls directly from school. However, she later admitted that defendant had never even attempted to pick them up at school. Her testimony at trial sharply contradicted her sworn affidavit dated January 23, 2008, in which she stated that “the defendant consistently attempts to pick up the girls unannounced from their schools and activities, which disrupts not only the girls, but those in charge of the aforementioned.” In her sworn affidavit, plaintiff claimed that she completed the registration card because defendant sought to attend the end of D.’s art class and then had the audacity to drive his daughter home. The art class “incident” occurred well after the registration card was completed by the plaintiff. Moreover, nothing in the parties’ agreement prohibits the defendant from visiting the children at extra-curricular events or from driving them to or from such events. In point of fact, there was no dispute that D.’s Friday art class in Huntington ended as defendant’s alternate weekend visitation commenced.”

“Plaintiff wrote to Dr. L.1 (then the XXX. principal) and Ms. T. (N.’s fifth grade teacher), demanding that they restrict their conversations with the defendant to N.’s academics, as plaintiff is “solely responsible for her academic progress and emotional well being. Notwithstanding the nature of their joint legal custody plaintiff insisted before me that, “I have custody, he has visitation.”"

“The plaintiff made/completed an application for admission to XXX on behalf of N. in October, 2007. On the application, she checked the box “Mother has custody,” rather than the box directly below which says “Joint custody.” She identified her new husband, R. L., as N.’s “parent/guardian,” and she failed to mention the defendant. During cross examination, plaintiff insisted that she only omitted reference to the defendant for fear that his financial circumstances would adversely impact N.’s chances for acceptance. However, no financial information was requested anywhere on the application. Moreover, plaintiff acknowledged that none was required until after an applicant was invited to attend.”

“By applying to XXX without defendant’s knowledge – - but with N. completely involved in the process, plaintiff orchestrated the decision to be made, as well as alienating the child. Had the defendant not consented to N.’s attendance at XXX, after the fact, N. would be angry with him for purportedly interfering with the enrollment, even if defendant’s objections to a private school placement were sound. In no event was he consulted as to this educational decision.”

“When asked how she might handle things differently now, plaintiff did not indicate that she would first discuss the possibility of a private school with the defendant, as she is obligated to do pursuant to the Stipulation.”

“In a similar pattern of being advised “after the fact,” defendant testified that there were countless times when plaintiff deliberately scheduled theater tickets, family events and social activities for the girls during his visitation, and he was compelled to consent or risk disappointing the girls. These occurrences continued even during the time span of proceedings before me.”

Mother claimed that children didn’t want to see father, specifically:

“Plaintiff was forced to concede at trial that the defendant was prevented from enjoying his visitation rights after he returned with the girls from his niece’s Bat Mitzvah until this Court granted defendant’s emergency application to compel the plaintiff to allow the defendant to take D. and N. for the ski trip he had scheduled for his half of the Christmas recess. Plaintiff insisted that it was D. and N. who refused to see their father, because they were angry with the ‘choices” he had made on their behalf, including his objection to N. attending XXX. Defendant was made aware of the children’s position because they parroted their mother’s demands on several occasions. D. even read from a script during the brief dinners he was permitted. As plaintiff wrote in one e-mail when she was describing her role with respect to the children: “I am in charge here, not them. What I [sic] say goes. They may bring their shoes. You are responsible for the rest. End of story.”"

“In vivid testimony, the defendant recalled how the plaintiff willfully prevented him from exercising his rights to visitation with the children from November 4, 2007 through December 21, 2007. I observed the plaintiff smirk in the courtroom as defendant emotionally related how he was deprived of spending Hanukkah with his children, and was relegated to lighting a menorah and watching his daughters open their grandparents’ presents in the back of his truck at the base of plaintiff’s driveway on a December evening.”

“The fact that the children were as angry as they were with the defendant in November and December, 2007, demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective. The children demanded that defendant meet “their” demands before they would permit him to visit with them again. They demanded that defendant permit N. to attend F. A., that he withdraw his objection to their participation in therapy with their mother’s therapist, and that he pay for 75% of D.’s Bat Mitzvah but limit his invitations to a handful of guests and have no role in the planning of the event. Plaintiff’s contention that she had no involvement in these children’s “demands” was belied by the very fact that the children had intimate knowledge of their mother’s position on all of these issues. The children, in effect, were evolved into plaintiff’s sub-agents and negotiators, having specific details of the financial demands of the plaintiff, and information as to the marital agreement.”

“The mother alluded to the ambivalence of the children in seeing the defendant. But such abrogation to the children’s wishes, under these circumstances, was in violation of the agreement. It was wholly improper for the mother to adhere to the children’s wishes to forego visitation with their father (see, Matter of Hughes v. Wiegman, 150 AD2d 449).”

“Plaintiff half-heartedly testified that she wants the children to have a relationship with the defendant. Her view of the defendant’s role was a numbing, desired nominality, evident by her actions that were without any semblance of involvement by the defendant – - notwithstanding the clear joint custodial provisions. At critical points in the cross-examination, plaintiff was noticeably off balance – - hesitating and defensive – - with answers that dovetailed to either narcissism, or, a poor grasp of the affects of her conduct. The plaintiff was dispassionate, sullen, and passively resistant to the alienating efforts of the plaintiff. The continued litany of instances of alienating conduct, turned repression of the defendant’s joint custodial arrangement into farce. The endurance in recounting instance upon instance of alienating conduct herein, was as daunting as it was indefensible.”

Mother’s behavior toward father in front of the children included the following:

“Plaintiff relegated the defendant to waiting endlessly at the bottom of her long driveway. When defendant drove up her driveway on October 26, 2007, so that the children would not have to walk down with their heavy bags in a torrential rain, plaintiff ran down the driveway where she had left her car, drove up the driveway and blocked defendant’s vehicle. The children watched as the police listened to their mother angrily demand that their father be arrested and, when the police refused, heard their mother scream that she is a taxpayer and the police work for her. She frequently disparaged the defendant in the presence of the children, calling him a “deadbeat,” “loser,” “scumbag,” and “f——-g asshole.” On one particular occasion, while holding N. and D. in her arms, plaintiff said to the defendant, “We all hope you die from cancer.” Just this past summer, when defendant insisted that D. retrieve her clothes from plaintiff’s home in preparation for their visit to N. on her camp visiting day, plaintiff urged to defendant that “Judge Ross will not be around forever, d___.” Before the beginning of each of defendant’s vacations with the children, the plaintiff staged prolonged and tearful farewells at the base of the driveway, during which plaintiff assured the children that they will return to “their family soon,” and if “things get too bad, they can always tell Daddy to bring them home.”"

Mother accused father of sexual abuse:

“The crescendo of the plaintiff’s conduct involved accusations of sexual abuse. Plaintiff falsely accused defendant of sexual misconduct in June, 2008, shortly after defendant moved to Huntington and the children’s friends were enjoying play dates at defendant’s home. Plaintiff testified that D. shared that she was uncomfortable when the defendant tickles her, and conceded that she knew there was nothing “sexual” involved. Undaunted by the lack of any genuine concern for D.’s safety, plaintiff pursued a campaign to report the defendant to Child Protective Services. To facilitate this, she spoke with W. M, the psychologist at the school D. attended. Plaintiff also “encouraged” D. to advise Dr. C. (the chidren’s pediatrician) that defendant inappropriately touched her – - but he saw no signs of abuse. Plaintiff also advised Dr. A., Ms. M., Dr. R. (the children’s prior psychologist) and family friends of the allegations and, ultimately, the Suffolk County Department of Social Services opened a file on June 3, 2008, and began an investigation.”

“According to the Case Narrative contained in the New York State Case Registry, a complaint was made that “On a regular basis, father inappropriately fondles 13 year old D.’s breasts. This makes D. feel very uncomfortable. Last Sunday, Father hit D. on the breast for unknown reason… ” When the caseworker and Suffolk County detectives interviewed D. on June 3, 2008, she reported only that her father tickles her on her neck and under her arms, and she categorically denied her father ever fondled her breasts. She admitted that her father was not attempting to make her uncomfortable, but that he still regards her to be a tomboy. The detectives closed their investigation.”

“Thereafter, and significantly, when the CPS caseworker met with plaintiff on August 19, 2008, plaintiff was quick to state that her ex-husband “did it again.” Plaintiff claimed that the defendant hugged D. too hard. According to the caseworker’s notes, the caseworker repeatedly cautioned the plaintiff not to bring the children into her disputes with the defendant. This warning was contained in CPS records.”

“Although unfounded child abuse reports are required to be sealed (see, Social Services Law §422[5]), such reports may be introduced into evidence,”by the subject of the report where such subject… is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment” (Social Services Law §422[5][b][1]). Allegations that defendant had injured the child were found to be baseless and, by making such allegations, plaintiff needlessly subjected the child to an investigation by Child Protective Services, placing her own interests above those of the child. This report was not made in “good faith” – - rather, the investigating agency warned the mother not to re-utilize the allegations and her children in her custodial litigation with the defendant.”

Mother’s behavior was not affected by pending contempt proceeding:

“The concern of a pending contempt proceeding did not affect the plaintiff’s conduct. For example, knowing that defendant had parenting access with D. on July 3, 2009, plaintiff invited D.’s close friend, C. C., to a country club for a fireworks display and advised D. of this invitation. She then instructed D. to tell her father she was invited to a friend’s party on that date. Another example occurred on June 13, 2009, when plaintiff quietly escorted D. from Alice Tulley Hall during the intermission, ignoring the instructions from the G. Y. Orchestra staff that everyone remain until the conclusion of the entire program. Plaintiff purported she was unaware that defendant attended this special program in Lincoln Center. Defendant, who was in attendance at the concert, was left waiting at the stage door with flowers for D. Plaintiff ignored his text messages questioning where his daughter was. The plaintiff, when confronted with the notion that she may have precipitously ushered her daughter away before her father was able to give her flowers, retorted to the Court that “it was not her responsibility to make plans for T.”"

In view of the mother’s behavior described above, the court held:

“The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement, incorporated but not merged into their Judgment of Divorce. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of “good faith,” and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The unfortunate history here also reflects the plaintiff’s hiring and firing of three different counsel, expressed disdain towards the children’s attorney, and utter disregard for the authority of the Court.”

With respect to parental alienation, the court stated:

“Differing “alienation” theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent’s relationship with a child has always been considered in the context of a “parent’s ability to encourage the relationship between the non-custodial parent and a child,” a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the “interference with the non-custodial parent and child’s relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent.”

“Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody.”

Judge Ross found Lauren R. in civil contempt of court and ordered her to spend every other weekend in the Nassau County Correctional Facility during June, July and August.

Judge Ross acknowleged that “An imposition of sentence upon a finding of contempt should contain a language permitting the contemnor an opportunity to purge.” However, in this case, a jail sentence was the only option available because it is no longer within the power of the plaintiff (mother) to purge since the violation was of a past court order. Furthermore, remedial intervention through counseling and parental training during the course of the trial was unsuccesful and if re-utilized, the “Court cannot release from imprisonment upon future compliance.”

The matter of approximately $165,000 in attorney fees will be the subject of another hearing.

What can we learn from this case? We can learn that it took years of inappropriate conduct, $165,000 in attorneys fees, and unquantifiable amount of damage to the relationship between the father and his daughter, before the court would punish this type of behavior. In view of the mother’s conduct, 6 weeks of weekends in jail seems inadequate. I do not know whether the court will change the residence of the children, however, it is clear that the joint custodial arrangement did not work in this situation. My guess would be that the court would likely to change custody to sole custody and grant the residence of the children to the father. The court is also likely to impose tight restrictions on the mother’s access to the children and her conduct toward the children and the father.

In a recent case, Juanita A. v. Kenneth Mark N., 2010 N.Y. Slip. Op. 03758 (2010), the Court of Appeals held that a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where there is another father-figure is present in the child’s life.

On June 25, 1994, the child was born. At the time, mother was unmarried, but living with Raymond S., who was listed as the child’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of that child, had another child. When the child was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with the child. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with the child a second time was rebuffed by Raymond, who warned Kenneth not to speak to her again. Kenneth has had no further contact with the child.

In 2006, when the child was approximately twelve years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of the child. However, the Magistrate did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed the child’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (Aikens v. Nell, 63 AD3d 1662 (4th Dept. 2009)). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel.

In Shondel J. v Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals set forth the law applicable to equitable estoppel in paternity and child support proceedings. It held that

purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position.

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child.

Id. at 326.

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father. In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (In re Baby Boy C., 84 NY2d 91, 102n [1994]). Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argued that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, the Court concluded that it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

The Court of Appeals disagreed with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. The Court stated that the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity — when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

As a result of the Court’s decision, the case was remanded for a hearing where Raymond will be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of the child’s best interests.

I think that this is an important case but its application is limited to very specific factual situations.

Unlike a number of other states, New York law does not include a procedure for formally emancipating a minor. There is some case law that describes certain situations when a minor would be considered to be emancipated for custody purposes.

The legal age of majority for custody and visitation in New York State is 18.  However, the courts may consider a minor emancipated if he or she is at least 16 years old, is living separate and apart from the parents, is not relying on his or her parents for living expenses such as rent, car expenses, insurance, food, etc., is able to manage his or her financial affairs, must not be in need of or receipt of foster care, the child must be living beyond the custody and control of his or her parents.   As far as child custody or visitation provisions contained in New York law, once the child is sixteen years old or older, the child’s preferences and desires with respect to the terms of the visitation will be given considerable weight.

If a child has a child of her own, that may result in emancipation for child support purposes.  A teen mother does not automatically become emancipated, except for limited issues such as medical care for self and the child, whether and where to attend school and receiving public assistance (if the criteria are met.)

As far as marriage is concerned, an emancipated child under the age of 18 would still needs parents’ permission.  Additionally, since the contracts that persons under the age of 18 enter into are voidable, the child may not be able to rent an apartment without an adult being a cosigner or cotenant; will need to obtain a work permit in order to have a job, which may also require parents permission; may not vote or bring a lawsuit.

However, once emancipated, the child may receive public assistance, attend school, receive medical care without their parents consent and can live independently.  Also, while an emancipated child’s custodial parent may no longer be entitled to receive child support, an eighteen year old may actually sue the non-custodial parent for child support his or herself.

If a child is arrested before the age of seventeen and is charged in Family Court, the parent is required to appear with that child, or be subject to abuse/neglect proceedings.  Although having their case brought in Supreme Court does not relinquish that obligation, the teen is routinely charged as an adult and thus may not result in any legal proceeding being brought against the parents.  If parents force the child  out of the home before the age of seventeen, this may also result in an abuse/neglect proceeding against the parents.  The courts consider it to be the parents responsibility to bring a PINS (person in need of supervision) petition in Family Court if the child is being unruly or disobedient at home or not going to school. The same is true for the child who needs the parents’ consent or attention for some medical or psychiatric problems. If the parents fail to consent or obtain necessary assistance, their inaction may also result in an abuse/neglect case being brought against them.

In Strong v. Dubin, 2010 N.Y. Slip. Op. 04121 (1st Dept. 2010), the Appellate Division, First Department, overturned the prior case law, including its own decisions, and held that a waiver of retirement rights included in a prenuptial agreement is valid and does not violate ERISA.

The court’s reasoning in reaching this conclusion was as follows. Initially, the parties’ prenuptial agreement, read as a whole and giving effect to all provisions, expressed an intent to opt out of the statutory scheme governing equitable distribution, which encompassed plaintiff’s retirement funds.  The prenuptial agreement provided that “[t]he parties desire, in advance of their marriage, to settle their financial, property, and all other rights, privileges, obligations and matters with respect to each other arising out of the marital relationship and otherwise, as more particularly hereinafter provided”.  Article I of the prenuptial agreement provided: ”it is the intention [of the parties] . . . that the property owned by each of them shall remain completely and wholly vested in each such person in whose ownership it presently exists.”

Article I of the Agreement expressly referenced Domestic Relations Law § 236(B)(3), which provides that a prenuptial agreement may include, among other things a “provision for the ownership, division or distribution of separate and marital property,” and reflects an intent to opt out of equitable distribution “with respect to the division of all marital and separate property either now in existence or which is hereafter acquired” (emphasis added), which encompasses the retirement funds at issue.   According to the Appellate Division, if this clause is disregarded, that would render the reference to property that is “hereafter acquired” meaningless, leaving that provision without force or effect.  According to the prenuptial agreement, the only assets specifically designated to be “marital property” are the prospective joint banking, savings or investment accounts or assets purchased from the proceeds of those joint accounts set forth in Article I, paragraph 5. The retirement assets in question were not held in joint names or funded with money from an account in the joint names of the parties and are not marital property within the meaning of the agreement.  The agreement also included a waiver which provided that

Except as otherwise expressly provided herein, each party hereby releases . . . the other, of and from all causes of action, claims, rights, or demands, whatsoever, in law or in equity (including, but not limited to claims for equitable distribution, distributive award or claims against the separate property of the other spouse) which either of the parties hereto ever had, or now has, against the other, except (a) nothing herein contained shall be deemed to prevent either party from enforcing the terms of this Agreement or from asserting such claims as are reserved by this Agreement to each party against the estate of the other; provided, however, that the claims so asserted arise out of a breach of this Agreement; and (b) nothing herein contained shall impair or waive or release any and all cause [sic] of action for divorce, annulment or separation, or any defenses which either may have to any divorce, annulment or separation action which may hereafter be brought by the other.

According to the Appellate Division, the contention that this waiver clause encompasses only property which either of the parties held at the time the prenuptial agreement was executed, to the exclusion of after acquired property, was unsupportable.  While the waiver clause stated that it is a release of all causes of action, claims, rights or demands whatsoever in law and in equity “which either of the parties hereto ever had, or now has against the other.” However, the illustrative claims listed include, but are not “limited to claims for equitable distribution, distributive award or claims against the separate property of the other spouse.” At the time the prenuptial agreement was signed, neither party had any of these delineated claims, all of which would accrue in the future, once the parties were married. Similarly the exceptions for breach of the antenuptial agreement and divorce demonstrate that the waiver clause was intended to apply to future causes of actions that would accrue after the marriage. In light of this language, to limit the claims to property that either party had at the time of the marriage would render the waiver clause meaningless in that property owned by either party at the time the prenuptial agreement was entered into would already be separate property as to which there is no right to equitable distribution or a distributive award.

The court further stated that for purposes of equitable distribution, a waiver of any interest in a pension as marital property by an otherwise valid prenuptial agreement is not prohibited by ERISA.  In New York, vested or matured rights in a pension plan are considered marital property subject to distribution in a divorce action to the extent that the benefits result from employment by the participant after the marriage and before the commencement of the divorce action.  There is nothing in the matrimonial law of New York prohibiting a spouse from waiving his or her interest in such marital property by agreement made before or during the marriage in accordance with Domestic Relations Law § 236(B)(3).

This is an important decision since it resolved some to the uncertainty associated with waivers of future retirement rights included in prenuptial agreements.  In the future, divorce lawyers can be more comfortable in including such waivers for their clients.  In appropriate situations, value of such waiver can amount to a substantial amount of money and may become subject of litigation in divorce.

In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses.  The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)).  Family Court providently exercised its discretion in departing from the prescribed percentage.

The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA.  It is unfortunate that the Appellate Division did not discuss the facts of the case in detail.  Whatever the circumstances were that resulted in the court’s decision may applicable in other cases.  If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.

A good illustration of the above took place in a recent case of M. v. F., 27 Misc.3d 1205(A) (Sup.Ct. New York Co. 2010).  In M. v. F., the parties resided together for approximately 13 years between 1994 and 2007, and have a child together.  They have never been married to each other.  The girlfriend argued that the boyfriend told her that he would always take care of her, that they would combine their efforts and earnings, and what was his was hers.  Once the parties split up, the girlfriend asked for a portion of the boyfriend’s assets, a portion of the profits from his business, and other financial support.

After the girlfriend commenced an action to obtain financial relief under various causes of action, the trial court held that the boyfriend’s promise to support his girlfriend if they ever broke up are unenforceable.  The girlfriend is not entitled to “equitable distribution” of the assets acquired during the relationship.  The court held that such statements as “I will always take care of you” and “everything that we put in, we will enjoy together” do not constitute legally binding promises.

This case illustrates the fact that marriage is the critical legal event that creates financial rights and obligations between the parties that can be enforced by the courts.  For those couples who choose to cohabit, without getting married, each party should be able to rely on their own ability to earn and not to expect any financial assistance from the other party in the event of breakup.  With respect to M. v. F., the answer would likely be different if there was a written agreement to provide support.  Any such agreement, assuming properly created and executed, would probably enforceable as any other contract.