Mother Ordered to Stop Posting About Her Children on Facebook

As social media continues to permeate every aspect of our lives, there is a continuing controversy about parents should post information about their children on social media sites. The controversy is grounded in both safety concerts, as well as concerns that children, who have not consented to having this information shared with the world, may suffer an invasion of their privacy or emotional harm.   A recent decision demonstrates how these issues can be addressed by the courts in New York.

In Melody M. v Robert M., 103 A.D.3d 932 (3rd Dept. 2013), the Third Department affirmed a Family Court order that among other changes to the prior joint custody, issued an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site. From the decision, it appears that while the parties initially had a joint custodial arrangement, that arrangement broke down primarily due to the mother’s pattern of inappropriate behavior and its effect on the parties’ oldest child, who had mental health issues. The mother did not participate in the child’s counseling because she did not like the therapist, or follow therapist’s  recommendation with respect to household routines. The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, and often resorted to physical means to deal with him.

In addition, the court quoted some of the mother’s testimony which was astounding:

[mother] utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

As a result of the mother’s use of physical force and disparagement of the oldest child on Facebook, the father had filed a violation petition. Since there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, the Appellate Division held that the lower court was justified in issuing an order of protection.

It is clear that the mother’s behavior was clearly inappropriate and that the court was justified in protecting the child. Just like with anything else involving the children, if you want to maintain custody of your children in the age of social media, it is best not to disparage them on Facebook.

Does Family Court Have Jurisdiction Over Family Offenses Committed Outside of New York?

In a recent case, the Appellate Division had to decide whether the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country.  In Richardson v. Richardson, 2010 N.Y. Slip. Op. 07943 (2nd Dept 2010), the court held that Family Court Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings, and that the Family Court properly exercised jurisdiction over the parties’ petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla.

On March 4, 2009, petitioners filed three separate family offense petitions seeking the entry of orders of protection. The alleged family offenses included, inter alia, assault, harassment, and menacing. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla.

The Appellate Division began its decision by stating that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute.  Included within the actions and proceedings over which the Family Court has been given subject matter jurisdiction are family offense proceedings. Pursuant to the New York State Constitution, family offense proceedings are to determine “as may be provided by law . . . crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household” (N.Y. Const, art VI, § 13 [b] [7]). In light of the provision stating “as may be provided by law,” the grant of jurisdiction to the Family Court over family offense proceedings is permissive and requires legislative action to be implemented.

Family Court Act Article 8 delineates the parameters of the Family Court’s subject matter jurisdiction. The Family Court Act and the Criminal Procedure Law provide the criminal court and the Family Court with “concurrent jurisdiction” over certain enumerated criminal offenses when allegedly committed by one family member against another. Thus, while a family member may choose to seek redress for a family offense in the Family Court, a parallel criminal proceeding also is available. Indeed, the Legislature has specifically authorized a petitioner to commence a family offense proceeding in either or both Family Court and criminal court. Moreover, each court has the authority to issue temporary or final orders of protection.

Family Court Act § 812(1) provides:

Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.

Furthermore, Family Court Act § 812(2)(b) provides: “[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection.” There is no geographic limitation in Family Court Act § 812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. Family Court Act, Article 8, as enacted in 1962, was intended by the New York State Legislature to provide “practical help” to domestic violence victims through the use of civil proceedings in the Family Court.

The history of Family Court Act § 812, provides no indication that the Legislature intended to prohibit the Family Court from exercising jurisdiction over family offenses where the alleged acts occurred in another state or country. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court also limits the jurisdiction of the Family Court. Criminal Procedure Law § 20.40(1)(a) provides, in pertinent part, that “[a] person may be convicted in an appropriate criminal court of a particular county, of an offense . . . when conduct occurred within such county sufficient to establish [a]n element of such offense.”

The Appellate Division concluded “[t]hus, to the extent that the appellant contends that the geographic limitation on the jurisdiction of the criminal court also applies to limit the jurisdiction of the Family Court over family offense proceedings, we hold that contention to be without merit.”

Therefore, if an act that would give a rise to an order of protection takes place anywhere, the party against whom it is committed can seek an order of protection in New York’s Family Court, provided that other procedural requirements are met and personal jurisdiction is obtained.

Order of Protection, Divorce and Surveillance

As a divorce attorney, I am periodically asked if hiring a private investigator to follow a spouse is acceptable and whether, if found out, it would result in any negative repercussions. I usually respond that surveillance is acceptable; however, there may be some evidentiary issues with the results that may make them inadmissible during the trial. A recent decision shed some light on these issues.

In Anonymous v. Anonymous, 2010 N.Y. Slip. Op. 20024 (Sup. Ct. Orange Co. 2010), the husband has brought a motion for summary judgment seeking to dismiss the wife’s petition which alleged the husband violated an order of protection pursuant to a settlement stipulation in Family Court.  The order of protection, entered without any finding of fault against the husband, directed him to refrain from committing a family offense or criminal offense against the wife and to stay at least 1000 feet away from the residence and place of employment of the wife except for court-ordered child visitation or to attend church services on Sundays.  The wife’s violation petition alleged that the husband retained a private investigator who recorded on DVD the wife entering a motel and having an affair with a priest assigned to the Church, where the wife was employed.  The wife alleged that the husband furnished the DVD to her superiors at the Church resulting in the wife being forced to resign.  The wife contended that there was no legitimate purpose in the husband having her followed by a private detective and delivering the DVD to Church officials and that doing so was intended by the husband to cause her to lose her employment and cause her personal humiliation and suffering.  The wife claimed that such conduct constitutes a violation of the order of protection.

In opposition to the husband’s motion to dismiss the petition, the wife’s attorney alleges the husband hired the private detective after he filed his answer and counterclaims in the divorce action.  The wife’s attorney contended the husband was not legally bound to turn over the DVD to Church officials.  The wife’s attorney argued that the husband violated the order of protection by acting through an agent, the private detective he hired, to follow and record the wife’s activities, and then turning over the DVD to the church causing the wife to lose her employment.

The court held that it was not improper for the husband to retain the services of a private investigator since the hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.  The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.  Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

With respect to the question of whether delivering the DVD to the Church officials, which was not necessary for the husband to defend or prosecute the divorce action, raised a triable issue of fact that the husband in having the wife followed and recorded by a private investigator intended to inflict emotional and financial harm upon the wife which might constitute a violation of the order of protection.  Although harassment in the second degree often involves conduct which places a person in fear of their physical safety, the language of the statute does not limit itself to only physical threats. If the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment such might qualify as conduct which alarms or seriously annoys another person, and serves no legitimate purpose, constituting harassment in the second degree.

The husband in his motion papers has prima facie demonstrated his entitlement to summary judgment dismissing the petition by evidence showing he did not retain the private investigator for an improper or illegitimate purpose such as harassment or stalking under the Penal Law or intend to make improper use of the private investigator’s work product DVD.  Upon the failure of the wife to demonstrate the existence of a triable issue of fact that the husband committed a crime or family offense against her or otherwise violated the order of protection, the court granted the motion for summary judgment dismissing the petition.

So, the lesson of this case can be summarized as follows.  One, surveillance in divorce cases is a legitimate means of gathering evidence.  Two, surveillance alone will not amount to a violation of an order of protection.  Three, if results of surveillance are delivered to a third party, with possible negative consequences to the party under surveillance, such act may violate an order of protection, if there was no legitimate reason for such disclosure.  If you are seeking to involve a private investigator to follow and observe your spouse or significant other, I would urge you to consult with a divorce attorney before doing so.

Divorce and Other Family Law Proceedings and Attorneys Fees Award

Attorneys fees awards are often at issue in divorce cases. Such awards are in the court’s discretion. Their primary purpose to allow a non-asset spouse to prosecute on or defend the divorce action, so that the parties are litigating on an equal footing so that one spouse does not have a greater economic leverage than the other spouse.

The Domestic Relations Law (“DRL”) recognizes those economic realities in divorce litigation and allows for award of attorneys fees, either on interim basis while the action is still pending, or after the action has been concluded. Counsel fee awards are not authorized by any provision of the DRL in actions or proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

DRL §237(a) provides that

in any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, (2) for a separation, (3) for a divorce, (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and who did not appear therein where such spouse assert the nullity of such foreign judgment, or (5) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse … to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on and defend the action or proceeding as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

Where an action for annulment is maintained after the death of a spouse, DRL §237 (a) authorizes the court to direct the person or persons maintaining the action to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to defend the action.

“Expenses” is defined in DRL §237(d) and includes, but is not limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses as the court may determine to be necessary to enable a spouse to carry on or defend one of the actions or proceedings designated in §237(a).

DRL §237(b) provides that,

upon any application to annul or modify an order or judgment for alimony or for custody, visitation or maintenance of a child, made (as prescribed in §§236 or 240) or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding for the other spouse or parent as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

DRL §238 states:

In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or in any proceeding pursuant to (§§243, 244, 245 or 246), the court may, in its discretion, require either party to pay the expenses of the other in bringing, carrying on or defending such action or proceeding.

The Domestic Relations Law also provides that, in a proceeding to obtain an order of protection or to enforce such an order, the Court may require any party to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing that order. Such fees may be awarded only in favor of the person obtaining the order or seeking to enforce it.

Counsel fees and expenses may also be obtained by a person seeking to enforce a custody decree of another state under several sections of the Uniform Child Custody Jurisdiction Act and in proceedings to hold a person in contempt of court for failure to obey a non-monetary order, under certain circumstances.

Domestic Relations Law §237(c) provides for a mandatory award of counsel fees in certain enforcement proceedings. The statute provides that in any action or proceeding for failure to obey any lawful order compelling payment of support, maintenance, or distributive award, the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the petitioner’s attorney.

The Court of Appeals in DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879 (1987) noted that DRL §237 allows for flexibility. Lack of funds is not a prerequisite to an award of counsel fees. Rather, in exercising its discretionary power to award counsel fees, a court must review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.

The court determined that an award of fees for the time spent by counsel in making the counsel fee application, and in related proceedings, comports with the purpose of the statute and should therefore be encompassed within its scope. It stated that if the time spent in applying for fees was not included in the award, the purpose of the statute could be frustrated by the more economically advantaged spouse engaging in protracted proceedings on the fee application and thereby increasing the cost of obtaining counsel fees for the less affluent spouse.

In O’Shea v. O’Shea, 93 N.Y.2d 187 (1999) the Court of Appeals clarified issues related to award of attorneys fees. It concluded that courts have the discretion, in appropriate cases, to grant such awards, based upon criteria that include the circumstances of the parties and the reasonableness of their positions. The Court of Appeals also held that courts have the discretion to grant counsel fees to the wife for legal services rendered in connection with the hearing to determine the fee award.

Subsequently, in Frankel v. Frankel, 2 N.Y.3d 601 (2004), the Court of Appeals recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds,” and that “more frequent interim counsel fee awards would prevent accumulation of bills”. Quoting from the 1993 report of the Committee to Examine Lawyer Conduct in Matrimonial Actions, the Court noted that “[t]he practice of many judges to defer [pendente lite counsel fee applications] to the trial court essentially delays the awarding of fees until the final settlement or judgment, and often compromises the non-monied spouse’s ability to adequately litigate the case'”.

In Prichep v. Prichep, 52 A.D.3d 61 (2nd Dept. 2008), the Second Department held that because such awards relate directly to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. Its conclusion relied on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted.

The facts in Prichep were as follows. The divorce action was started by the husband in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. Her motion stated that, although the court previously had granted her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was earning $420,100 per year, while she worked part-time, earning $4,015 per year. In opposing the motion, the husband argued that the wife had engaged in unnecessary litigation, and incurring excessive counsel fees. Supreme Court denied the wife’s motion without prejudice to a renewal at a later date. Subsequently, the wife moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm’s request to the extent of relieving it as counsel for the wife. The wife appealed the denial of interim attorneys fees award. The Appellate Division held that an award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate ‘to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation’ “(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O’Shea v. O’Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, “a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis”. The Appellate Division reversed the lower court’s decision and awarded the fees sought.

As important as the attorneys fees are during the pendency of the divorce action, they are just as important at the end of the action. When the final application for attorney fees is made, the court must consider the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the necessity for the services; (4) the nature of the issues involved; (5) the professional standing of counsel, including background and experience; (6) the results achieved; (7) the financial circumstances of the spouses; and (8) a spouses’ obstructionist tactics. It is also appropriate for the court to consider each spouse’s settlement demands and negotiation position in determining the appropriateness of a counsel fee application. A party can obtain both interim and final attorneys fees awards in a single divorce action.

Divorce and Leaving Marital Residence

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

The most significant ones are as follows:

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

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

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

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