Posts Tagged ‘visitation’
Sunday, July 26th, 2009
I often deal with situations where either parent and/or their child relocates to out of state and the other wishes to petition the court for custody of the child, visitation, or modification of existing order or, perhaps, enforcement of a custody order. While in many cases the noncustodial parent seeks court intervention because the custodial parent relocated without permission, there are situations where the consent was given initially but then intervening events resulted in the need for modification or enforcement of the current custody order.
New York, as well as many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). UCCEJA aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question which state has the right to exercise jurisdiction because one parent and/or the child no longer resides in New York. Although it is usually invoked in petitions seeking custody or visitation, or modification and/or enforcement of custody or visitation orders, it also applies to guardianship proceedings, divorce, paternity, child abuse or neglect, termination of parental rights, and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to resolve jurisdictional issues in other circumstances where the child has moved to another state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse and/or neglect. These are all scenarios that warrant the application of the UCCJEA.
The UCCJEA sets forth alternative rounds of asserting jurisdiction, which are: 1) where it is in the best interests of the child based on the “significant connections” to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.
New York courts’ jurisdiction under the first ground only applies to cases where there is no home state and there has not been a home state for the past six months. This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2). This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders. Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state. Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies. For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.
New York courts’ jurisdiction under the second ground arises typically in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian. However, although the act serves to limit jurisdiction to situations where some emergency intervention by the courts is required, the statute is strictly construed. In other words, a mere allegation of abuse and/or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question. And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings. Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.
New York courts will assert jurisdiction under the third ground in the cases where the child has not had a home state anywhere during the previous six months and no significant connections or emergency situation exists. This is really a safety measure, an effort to avoid the case going unheard by any court. Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.
New York courts’ jurisdiction under the fourth ground will be asserted in the cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions. Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence, as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction.
When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction. So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction. Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.
The above issues tend to be factually oriented, and family law lawyers will carefully review the parties’ circumstances before and after the move, and any other fact relevant to jurisdictional determinations.
A recent example of application of the above principles, took place in Felty v. Felty, 2009 N.Y. Slip. Op. 05859 (2d Dept. 2009). In Felty, the primary question was whether New York should exercise home-state jurisdiction in a child custody proceeding. The Appellate Division held that the facts supported the mother’s contention that she intended to remain permanently in New York where the children’s six-week visit to Kentucky during the summer of 2007 was a temporary absence, which did not interrupt the six-month pre-petition residency period required by the UCCJEA.
The court found that the father took no affirmative steps prior to the commencement of the New York proceeding to establish permanent residence for the children in Kentucky and the children’s six-week summer visit was merely a temporary stay similar to a summer vacation.
The court stated that even if there was a wrongful removal by the mother, such a removal will not be treated as a temporary absence if there is evidence that the taking or retention of the child was to protect the mother from domestic violence. Here, the mother misled the father about agreeing to reconcile their marriage because he would not permit her to return to New York if she refused to attempt reconciliation. Finally, the court agreed with the lower court’s finding that treating the six-week visit as a temporary absence “permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status.”
As described above, courts will carefully review all of the circumstances related to the parties’ and children’s residences, as well as the reasons for any move. If you are dealing with a situation where a dispute may be litigated in two different states, it would be a good idea to speak with an attorney who has experience dealing with UCCJEA.
Tags: attorney, county, custody, domestic relation law, Family Court, Family Law, home state, jurisdiction, Monroe, Ontario, Orleans, rochester, Supreme Court, UCCJEA, visitation, Wayne
Posted in court orders, divorce, Domestic Relations Law, jurisdiction, New York Law, UCCJEA, visitation | No Comments »
Sunday, July 5th, 2009
A divorce case could easily last for a year or, occasionally, much longer. Therefore, it is common for the parties to seek various forms of relief from the court while the action is pending. This type of relief is commonly referred to as pendente lite and is usually obtained by making a motion, brought by an order to show cause. Such motion is usually supported by affidavits, exhibits, and statements of net worth. A pendente lite motion may seek such things as temporary custody of children, temporary schedule of visitation with the minor children, temporary child support, temporary maintenance, exclusive possession of the marital residence, temporary order of protection, interim award of attorneys fees, interim award of expert fees, and an order restraining marital assets. Since pendente lite motions are made on expedited basis, not all facts may be known at the time the motion is brought. Once the relief sought in the pendente lite is granted, the court’s decision is unlikely to be reversed on appeal since numerous cases have held that the proper remedy for objections to a pendente lite order is a plenary trial. As the court stated in Penavic v. Penavic, 60 A.D.3d 1026 (2nd Dept. 2009), “[t]he best remedy for any perceived inequities in the pendente lite award is a speedy trial, at which the disputed issues concerning the parties’ financial capacity and circumstances can be fully explored.” After the final decision is made, the trial court has the power to adjust the pendente lite relief.
The most significant form of pendente lite relief in many cases is temporary maintenance. As the court stated in Mueller v. Mueller, 61 A.D.3d 652 (2nd Dept. 2009), “pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse . . . with due regard for the preservation standard of living”. It is the burden of the party seeking pendente lite relief to demonstrate the need for the award sought. The standard of living previously enjoyed by the parties is a relevant consideration in assessing the reasonable needs of a temporary maintenance applicant.
One critical issue that can be addressed by a pendente lite motion is preservation of marital assets. Pursuant to Domestic Relations Law § 234, a court has broad discretion in matrimonial actions to issue injunctive relief in the interest of justice to preserve marital assets pending equitable distribution. Place v. Seamon, 59 A.D.3d 913 (3rd Dept. 2009). Such request for restraints on property transfers can be granted upon the movant demonstrating that the spouse to be enjoined “is attempting or threatening to dispose of marital assets so as to adversely affect the movant’s ultimate rights in equitable distribution”.
Pendente lite financial relief is usually retroactive to the date of filing of the motion.
For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. The courts do not lightly infringe upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage.
Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. The party seeking such relief must present detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince the court that the application is not an effort to force the other party out of the house. Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court may order that a hearing be held to resolve the conflicting versions of the facts. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted. As I have written before, such relief can also be obtained from the Family Court on expedited basis and, occasionally, on ex parte basis, if the safety of a party is at issue.
A pendente lite motion which requests either child support, maintenance or attorneys fees, must include a statement of net worth as an exhibit, even if the statement of net worth has been filed separately.
One form of relief that is typically not available as a part of a pendente lite application, is the order directing the sale of the marital residence. Such relief can only be obtained after trial.
If a party decides to violate the pendente lite order, the proper application is contempt. Shammah v. Shammah, 22 Misc.3d 822 (Sup. Ct. Nassau Co. 2008).
Usually, a pendente lite motion sets up the parties’ positions with respect to critical issues in their divorce case. If a lawyer is successful in obtaining the relief sought, his/her client’s position going forward will better and the client’s negotiating posture may improve significantly. Most divorce attorneys recognize this and are careful in making pendente lite motions.
Tags: attorney, attorneys fees, child support, county, custody, divorce, Domestic Relations Law, lawyer, Livingston, maintenance, marital property, Monroe, New York family law, Ontario, order, Orleans, pendente lite, rochester, Supreme Court, temporary, visitation, Wayne
Posted in attorneys fees, child support, court orders, custody, divorce, Domestic Relations Law, maintenance, pre-nuptial agreement, Supreme Court, visitation | No Comments »
Sunday, May 31st, 2009
I have previously written how the bankruptcy courts deal with attempted discharge of the so-called domestic support obligations. However, that post focused primarily on discharge of obligation that arose as a result of divorce proceedings and child support. Occasionally, I see an attempt to discharge an obligation arising out of Family Court proceedings, specifically, attorneys fees.
While it is clear that the child support or spousal support obligations are not dischargeable in bankruptcy as domestic support obligations, the question of attorneys fees granted in a child support or other proceeding in Family Court was less clear cut until Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), where the Appellate Division, Third Department, held that the award of counsel fees by the Family Court was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.
In Ross, the mother filed a petition for violation of a prior order of custody and visitation in 2005. In response, multiple cross petitions were filed by the father alleging violations by the mother and seeking modification of custody. In an August 2006 order resolving the parties’ petitions, Family Court sustained the mother’s motion for counsel fees and ordered that the father pay $ 5,000 of her counsel fees. The father subsequently filed for bankruptcy under chapter 7 of the Bankruptcy Code and, in Schedule F of his petition, he listed the award of counsel fees as an unsecured debt. The father was discharged by order of the Bankruptcy Court in January 2007 and, shortly thereafter, the mother commenced the present proceeding in Family Court for the violation of a court order based upon the father’s failure to pay the counsel fees. Contending that the debt had been discharged in bankruptcy, the father moved to dismiss the petition. Family Court, among other things, concluded that the counsel fees awarded in its prior order were a nondischargeable domestic support obligation, denied the father’s motion and granted the mother’s petition in part, finding the father to be in violation of a prior order.
The Appellate Division noted that state and federal courts have concurrent jurisdiction over the issue of the dischargeablity of a particular debt following the discharge of the debtor in bankruptcy. It reviewed the father’s contention that the counsel fees, although awarded in the context of a Family Court proceeding regarding custody and visitation, were not “in the nature of support” for the parties’ children. The Court held that since the mother’s initial petition commencing the proceeding clearly raised issues of financial need and hardship and her motion for counsel fees, which was sustained by Family Court in the August 2006 order, proposed consideration of her circumstances as one basis for an award of counsel fees. The Court held that the term “in the nature of support” is to be given a broad interpretation in the context of the discharge of debt obligations in bankruptcy and agreed with Family Court’s determination that the award of counsel fees in its prior order was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.
The real issue in this case is whether the custody petition really was in the nature of support. The mother’s lawyer was able to persuade the both the Family Court and the Appellate Division that it was. While the Appellate Division relied on the award of attorneys’ fees and the relevant standard under the Family Court Act, an argument can be made that the Court should have looked to the underlying proceeding only and that proceeding dealt exclusively with custody issues. One of the factors in any award of attorneys’ fees is ability to pay, so that can make an award of attorneys fees in any proceeding in Family Court to be in the nature of support.
Tags: attorney, attorneys fees, Bankruptcy, custody, cutody, discharge, domestic support obligation, Family Court Act, Family Law, lawyer, Livingston, Monroe, nature of support, new york, New York family law, Ontario, order, Orleans, rochester, visitation, Wayne
Posted in attorneys fees, Bankruptcy, child support, court orders, custody, Family Court, Family Law, federal law, New York Law, visitation | No Comments »
Saturday, May 2nd, 2009
I occasionally see cases involving separated siblings. In those situations, the parents, or the guardians of the children should be aware the siblings, or half-siblings have an independent right of visitation with each other. The Family Court has the same jurisdiction as the Supreme Court to determine visitation of minors, including visitation between siblings. Family Court Act §651, Domestic Relations Law §71. DRL §71 provides that “where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or a person on behalf of a child, whether by half or a whole blood, may apply to the family court [for visitation rights] as the best interest of the child may require.” Thus, in cases involving sibling visitation, like grandparent visitation, the court must first determine whether equitable considerations grant a party standing to bring a petition and then, if so, whether it is in the best interests of the children to award such visitation. E.S. v. P.D., 8 N.Y.3d 150 (2007). The court in such a case is charged with determining what is in the best interests of all the children involved. State ex rel. Noonan v. Noonan, 145 Misc.2d 638 (Sup. Ct. 1989). The importance of sibling relationships has long been recognized by the courts of this state. Eschbach v. Eschbach, 56 N.Y.2d 167 (1989). This is manifested not only in preferring arrangements which allow siblings to live together, but also in ensuring that half-siblings have adequate contact with each other. Olivier A. v. Christina A., 9 Misc 3d 1104 [A] (Sup. Ct. Suffolk Co. 2005). The State’s recognition of the importance of siblings maintaining contact with each other is also manifested in Family Court Act §1027-a, which provides that foster care placement of a child with his or her siblings or half-siblings is presumptively in the child’s best interests. See also 18 NYCRR §431.10, which provides that a social services district must make diligent efforts to place siblings or half-siblings in foster care with each other unless such placement is determined to be detrimental to their best interests.
In a recent case, Isabel R. v. Meghan Mc., 23 Misc.3d 1102(A) (Fam. Ct. Dutchess Co. 2009), the court had to decide whether the half-siblings who were living in separate households after their parents’ breakup, were entitled to visitation with each other. The court found that the evidence demonstrated that the children did indeed have a relationship until that relationship was unilaterally terminated by the mother after she and the children’s father split up. While the mother argued that she has an absolute and unfettered right to determine whether sibling visitation should take place and that any direction by the court for sibling visitation would violate her constitutional rights. Relying on E.S. v. P.D., supra, the court held that mother’s constitutional argument was meritless and proceeded to decide whether visitation would be in the children’s best interests. In considering the children’s best interests, the court has considered, among other factors, their prior relationship, the reason visitation was stopped, the reasons given and basis for the respondent’s decision to deny visitation at the present time, the views of the attorneys for the children, the future benefit to the children and the content of the Court’s in camera interviews. The children wished to see each other and expressed no negative feelings about doing so; the children have fond memories of times they spent together and activities they did together. The court held that under those circumstances, visitation would be in the children’s best interests.
Tags: attorney, custody, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, lawyer, Livingston, modification, Monroe, new york, Ontario, order, right, rochester, separated, siblings, Supreme Court, visitation, Wayne
Posted in best interests of the child, court orders, custody, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, visitation | No Comments »
Sunday, April 26th, 2009
I have previously written that a child support obligation can be suspended or terminated in situations where the court makes a finding that the child has deliberately severed his/her relationship with a parent, thereby abandoning that parent. However, in order for a court to make a finding of abandonment, the child must be of employable age.
Even if the child is not of employable age, the non-custodial parent’s child support obligation can be suspended or terminated, if the breakdown in the parent-child relationship came as a result of the actions of the custodial parent.
In Ledgin v. Ledgin, 36 A.D.3d 669 (2nd Dept. 2007), the Appellate Division held that interference with visitation rights can be the basis for the cancellation of arrears of maintenance and the prospective suspension of both maintenance and child support. However, such relief is warranted only where the custodial parent’s actions rise to the level of “deliberate frustration” or “active interference” with the noncustodial parent’s visitation rights.
In Frances W. v Steven M., 15 Misc.3d 839 (Fam. Ct. Queens Co. 2007), the court held that petitioner was not entitled to child support where she intentionally aided her sister in brainwashing the child, who is almost 20 years old, into falsely believing that the father had sexually abused her when she was an infant, and otherwise poisoned the child’s relationship with respondent from the time she was four years old. The court stated that since petitioner was an active participant in destroying her niece’s relationship with the father, “she was precluded from obtaining child support from respondent as a matter of fundamental fairness.”
In S.M.B. v D.R.B, 17 Misc.3d 1132(A) (Fam. Ct. Onondaga Co. 2007), petitioner father sought vacatur of order of support contained in parties’ divorce judgment, which incorporated their opt-out agreement. Father began his action after the mother engaged in pattern of active interference and deliberate frustration of child’s relationship with father. Mother was very angry that father paid no more child support than what’s been ordered by court. Mother has withheld father’s access to child since she moved to Florida and remarried. The court found that mother’s acts of alienation were not isolated incidents but a continuing pattern. The court further found that the child now shows no interest in having relationship with father because of mother’s unfortunate endeavors. Father’s support obligation vacated since father met his burden of establishing that mother unjustifiably frustrated his right to reasonable access.
If the child is not of employable age, and the custodial parent did not interfere with the relationship between the non-custodial parent and the child, the non-custodial parent’s obligation to pay child support will not be terminated by the court. Foster v. Daigle, 25 A.D.3d 1002 (3rd Dept. 2006).
Since most of these cases are tried on the issue of parental interference, it is important that each such case, before it is brought, is carefully screened by an experienced family law lawyer. Because parental interference cases require a significant level of proof, it is important that a petitioner is represented by an attorney familiar with such cases.
Tags: attorney, change in circumstances, child support, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, interference, lawyer, modification, Monroe, new york, New York family law, New York Law, Ontario, parental interference, rochester, Supreme Court, suspension, termination, visitation, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, divorce, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, modification, New York Law, visitation | No Comments »
Sunday, December 21st, 2008
In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that
“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”
Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).
Since 1976, visitation may be awarded to grandparents in matrimonial actions. The 1976 amendment added the following to DRL §240: “Such direction [of a court in a matrimonial action] may provide for reasonable visitation rights to the maternal or paternal grandparents of any child of the parties.” In New York, the statute provides that grandparents may obtain visitation rights even though their child is not deceased, and the nuclear family is intact.
Last year, the Court of Appeals in E.S. v. P.D., 8 N.Y.3d 150 (2007), unanimously rejected a constitutional challenge to New York’s grandparent visitation law. In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville, 530 U.S. 57 (2000).
The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child’” (Troxel, 530 U.S. at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.
The New York Statute, on the other hand, is based upon the presumption that the parent’s wishes represent the best interests of the children. The Court noted that:
. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 (1976)).
While this presumption creates a significant burden for the grandparent, the grandmother in this case was able to overcome it, because from the time the child was almost four until he was seven, grandmother was the primary caretaker. The court then considered all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue, such as whether the father’s objections to grandmother’s access to the child were reasonable, her caregiving skills and attitude toward father, the law guardian’s assessment and the child’s desires, before granting visitation.
Tags: custody, divorce, Domestic Relations Law, equitable distribution, Family Court, Family Law, grandparents, new york, New York Law, rochester, Supreme Court, visitation
Posted in best interests of the child, custody, divorce, Domestic Relations Law, Family Court, Family Law, grandparents, New York Law, visitation | 1 Comment »
Sunday, December 14th, 2008
Periodically I am asked about jurisdictional issues that arise when one parent and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order. Although there are cases where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but subsequent events may raise a need for a modification or enforcement of the current custody order.
New York has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). This statute attempts to discourage interstate child abductions and to prevent “forum shopping” by parents trying to remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when one parent and/or the child no longer resides in New York. While UCCEJA issues are most commonly seen in family court petitions seeking custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse or neglect. These are all scenarios that require the application of the UCCJEA.
The UCCJEA sets forth alternative situations for asserting jurisdiction, which are: 1) where it is in the best interests of the child based on the “significant connections” to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.
Situation 1: This section only applies to cases where there is no home state and there has not been a home state for the past six months. This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2). This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders. Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state. Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies. For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.
Situation 2: This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian. However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed. In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question. And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings. Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.
Situation 3: This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists). This is a safety measure included in the statute to avoid the case going unheard by any court. Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.
Situation 4: This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions. Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction).
When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction. So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction. Conversely, New York will enforce a custody order if the child and one parent lives in the state, if the order is registered in New York.
Tags: custody, divorce, Domestic Relations Law, Family Court, Family Law, juridiction, new york, New York Law, rochester, Supreme Court, visitation, vistation
Posted in custody, divorce, Domestic Relations Law, Family Court, Family Law, federal law, jurisdiction, New York Law, procedure, Supreme Court | No Comments »
Monday, December 8th, 2008
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.
Tags: custody, divorce, Domestic Relations Law, equitable distribution, Family Law, new york, New York Law, Order of Protection, rochester, Supreme Court, visitation
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Monday, October 27th, 2008
In 1996, Mathew’s parents, Jesus Fuentes and Karen Fuentes, were divorced. On August 1, 1996, “Order Directing Custody” was entered, granting Mathew’s mother exclusive custody of Mathew. Mathew attended New York City public schools, where he received special education services to accommodate his disability.
In 2000, because Mr. Fuentes believed that the education accommodations Mathew received were inadequate, he requested that Mathew be reevaluated for additional services. After the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired determined that Mathew’s current services were adequate, Mr. Fuentes requested a hearing to review the committee’s determination. On January 8, 2001, the Impartial Hearing Office denied Fuentes’s request for a hearing. Its Chief Administrator based her denial on Mr. Fuentes’s custodial status. Because Mr. Fuentes was the non-custodial parent of Mathew, Chief Administrator determined that he was not the “person in parental relation” as defined in N.Y. Educ. Law § 3212 and concluded that Mr. Fuentes did not have the right to participate in educational decisions affecting Mathew and refused to process his father’s requests.
Mr. Fuentes, the non-custodial biological father, brought an action in the Federal Court for the Eastern District of New York against the Board of Education of the City of New York, under 42 USC §1983 and 20 USC §1415(f)(1) [IDEA], to review the City’s assessment of his son’s special educational needs and to be granted an impartial hearing for reconsideration of the City’s determination that his son did not need more special education than what he was receiving. After determining that, under New York law, a non-custodial biological parent has no right to make special education decisions, absent a court order or agreement between the parties affording such rights to the non-custodial parent, the Federal Court for the Eastern District of New York dismissed the complaint for lack of standing [FRCP 12(b) and (c)].
The Second Circuit held that although the First and Second Departments of the Appellate Division have held that a non-custodial parent, absent an order or agreement to the contrary, has no right to make educational decisions, the Second Circuit chose to have New York’s Court of Appeals definitively state the law of New York and, thus, certified the following question: “Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.” Fuentes v. Bd. of Ed. of City of New York.
I have previously written about the custodial arrangements and the right of decision-making associated with each type of custody, and while there are many decisions on this issues from the Appellate Division, the Court of Appeals so far has not issued a definitive ruling on this issue. When the Court of Appeals decides this case, this is likely to be the controlling statement of New York law on the rights of non-custodial parents with respect to their right to be involved in educational and other decisions effecting their children. The Court of Appeals is likely to issue its decision in the next few months.
Tags: custody, decision-making, Family Court, Family Law, New York Law, non-custodial parent, Supreme Court, visitation
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Monday, October 13th, 2008
One of the most common post-divorce scenarios is that the custodial parent wishes to relocate, the other party objects to such proposed move and argues that such move may negatively impact on the other parent’s relationship with the child. Assuming that the parties’ Judgment of Divorce, or separation agreement, does not conclusively address this issue, the party seeking to relocate will typically need to seek the court’s permission to do so.
As laid out in the leading case of Tropea v. Tropea, 87 N.Y.2d 727 (1996), the issue is to be determined is whether the proposed relocation is in the best interest in the child. In doing so, the court is to consider the following criteria:
1. Each parent’s reason for either seeking or opposing the relocation;
2. The current state of the relationship between each parent and the child;
3. The impact that the relocation will have on the quality and of the child’s relationship
with the non-custodial parent;
4. The emotional, economic and educational effects that the move will have on the
child; and
5. The feasibility of maintaining the relationship between the child and non-custodial
parent.
The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.
In Noble v. Noble, 52 A.D.3d 490 (2nd Dept. 2008), the mother sought to relocate from relocation from Long Island to upstate NY. The court held that the proposed relocation was in children’s best interests since the proposed move would provide economic, emotional and educational benefits for the mother and parties’ children without precluding meaningful and regular contact between children and father.
In Mallory v. Jackson, 51 A.D.3d 1088 (3rd Dept. 2008), the parties consented to June 2006 order awarding joint legal custody with mother having primary physical residence of the children. In October 2006, mother sought permission to relocate with parties’ children to North Carolina. Mother moved to North Carolina while petition was pending, leaving children with father at maternal grandmother’s home in Schenectady County. Mother was required to demonstrate by preponderance of evidence that proposed relocation would be in children’s best interests. Mother alleged that father had failed to provide her financial support throughout their relationship, and she was moving to be near a relative who offered financial assistance. The Appellate Division held that mother, who had already relocated, failed to present evidence at hearing that her financial situation in North Carolina was significantly better than while living in New York. Mother’s remaining extended family continues to reside in New York. The proposed relocation to North Carolina would deprive child of meaningful contact with father and members of their extended family and mother failed to establish existence of compelling reason to justify relocation of children to North Carolina.
If the court does not find the proposed move to be in the best interests of the children, the parent who has the primary physical residence of the children usually has a choice between staying or losing that primary physical residence to the other parent.
Tags: custody, divorce, Domestic Relations Law, Family Law, modification, New York family law, relocation, Supreme Court, visitation
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