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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.
Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Articles on New York Divorce Law

The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York
June 1, 2023

The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York

Here is the state of the law as to counsel fees in Divorce and child custody cases.  The Courts are designed to not permit an unfair playing ground when it comes to a huge disparity in wealth between spouses. Accordingly, a non-monied or spouse with low income may apply for counsel fees against the other spouse in a divorce action in New York State under the following circumstances’ set forth in Domestic Relations Law Section 347(B). This is the same as where a spouse’s wealth vastly exceeds the other spouse‘s wealth because the Court wants everyone to be adequately represented. When you make an application for counsel fees there are certain legal requirements and documents that must be attached to the application so check with a New York divorce lawyer before filing any such application to ensure it is complete. .

Pursuant to DRL Section 237 (B):

            “….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 counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case  and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements, or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name.

Also, see the below case citation.

In the First Department case of Brookelyn M. v. Christopher M., 161 A.D.3d 662 (2018) the Court held, in pertinent part, that “….The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition (O’Shea v. O’Shea, 93 N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ); see Gottlieb v. Gottlieb, 138 A.D.3d 30, 25 N.Y.S.3d 90 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1125, 36 N.Y.S.3d 880, 57 N.E.3d 73 [2016] )…..”


Article by New York Divorce Lawyer Lisa Beth Older 


The Perils and Joys of Geographical Relocation Cases involving Child Custody
April 29, 2023

The Perils and Joys of Geographical Relocation Cases involving Child Custody

At some point in time a divorced couple or a party to a Child Custody Order may run into the problem of having to relocate the subject children to another location and cannot gain the consent of the other parent.    Geographical Relocation cases vary, they are tough going, and it often creates great difficulties where the parents are sharing joint residential custody.

The relevant factors on a modification petition to family court asking to relocate requires the court to consider whether there has been an unanticipated change in circumstances so as to permit relocation of the children in the best interests of the children.

In this sort of case, the courts will consider many factors, such as the reasons the party sets forth for the move, the status of the quality of the relationships between the child and the two parents,  the impact  the move might have on the children’s quality of life, whether the move will interfere with the relationship between the noncustodial parent and the child or children, and whether it is possible to alter the current visitation time to provide near or equalization time between both parents to spend with the subject children.    

Other important factors to consider are whether the move will improve or enhance the wellbeing of the children, such as a better job, more family contacts, or financial hardships that make it impossible to stay in the present local. For instance, the moving party has the burden of showing to the Court that, in addition to not affecting the relationship between the children and the noncustodial parent and extended family, that a move will enhance the child economically, emotionally, and educationally.

If you intend on filing a geographical relocation petition in family court, it is always best to do so either after you have a custody order in place or while you are in the process of suing for custody. In the instance where you are in the middle of a child custody case, if you plan on relocating, address this in the context of your custody case so that the Court can decide as to how far you may move. However, if you already have a set custodial plan in place, you must show an unanticipated change in circumstances.  If you anticipate a move in a custody case but you have no specific plan in place it is best to file a geographical relocation petition when custody is resolved and when you have a comprehensive plan in place which sets forth the actual address of the planned move, the actual employment opportunity that is available upon executing the move, and the fact that you have a plan to ensure that the noncustodial parent will have the same amount of time to spend with the children that he or she has under the old Order.

Always have a plan to present to the court.  The more specific the plan the more likely a Court will seriously consider your petition to relocate.  If you are moving on a whim and are using the move to shorten the time the noncustodial parent will spend with the  children your plan will surely backfire.

Also, the radius in which you wish to relocate is also relevant. Of course, if you are trying to move out of state your burden of proof in that sort of instance is you must show by a preponderance of evidence that this move is clearly in the children’s best interests.

In settlement negotiations which occur out of court, always ensure there is a radius clause in your agreement. While not ultimately binding,  because you still have to file for permission to move, it is one factor a court will consider in allowing the move to another location.

I hope this information was helpful.  Remember, this is only information from my perspective as a New York Divorce Lawyer of over thirty years and you should never depend on this as advice since every case is different. Rather, consult an attorney of your choice who is well versed in family law.

By: Your Manhattan Divorce Lawyer

Lisa Beth Older, Esq. 

March 25, 2023

Child custody and visitation in New York is an area of law that requires an attorney that understands the importance of the day to day life of the party and children while litigating custody and visitation.

The difference between litigating a custody case, successfully, and losing a custody case depends upon how you navigate the issues between you and the non-custodial parent. This is where an experienced divorce lawyer or child custody lawyer can be invaluable since they are usually equipped to guide you through the choices you must make during the litigation that will strength or weaken your case..

Clearly, if there is abuse or neglect of the children, mental illness of either party, or domestic violence the Court will favor an award of custody to the parent who is deemed best fit.  You can also lose custody if you are a substance abuse her or if you fail to coparent or fail to follow court orders as all of the above factors would negatively impact the best interests of the children.

Please note that initially if there is no custody order, either of the parents can keep the children. But disputes arise when the parties are unmarried and there are no formal custody orders.  That’s why it’s important to file for a custody order, either in a divorce case or a child custody case in Family Court. 

That said, New York is not a 50-50 state as to child custody laws and a Court will not always require the parties to split their time with the children on an equal basis.  Rather, since 1970, New York has used a certain test in determining who gets custody in a child custody dispute.  That is, the New York Court will decide custody matters based upon all factors that consider the best interest of the children.

In determining the best interest of the children, the courts will take into account the following.  For instance, they will consider which parent fosters a meaningful and robust relationship with the other parent and which parent is best fit to care for the children. Other factors of consideration are measuring how long the children have resided with one or the other of the parents, where the child has been residing, primarily, if the child has certain  needs that one parent can best meet over the other, instances of domestic violence, the existence of siblings, better parenting skills, and work schedules that are conducive to providing direct care for the children. A  child’s preference is also considered in a custody matter. 

When we speak of child custody in New York, there are distinct types which must be considered. Joint custody is when both parents may decide the major legal decisions as to the children. These legal issues normally entail decisions as to medical religious or educational matters  relating to the children. 

The other  terminology that best describes child custody matters in New York has more to do with physical residence. For instance, if one party has joint physical custody, that means that the children go back-and-forth between the parents. However, if one parent has sole physical custody, that generally means that the child lives primarily with one parent over the other,  and that the child’s primary residence is with that parent. So, theoretically, the parties can have joint legal custody with a shared parenting schedule or  the parties can have joint legal custody, but one of the parties can have primary physical custody.  These issues are generally negotiated between the parties, or if the parties cannot agree, then a judge will decide these issues at trial.

Generally a Court will allow a child who is over the age of 18 to refuse to visit with the noncustodial parent in most cases, but it’s always best to get a judicial determination as to this issue.

Self-help is discouraged by the courts. For instance, if a non-custodial party takes the child out of the state or country without the permission of the other parent, or against a court order,  then this is usually considered  parental kidnapping and the guilty party can be charged with a crime. 

Many parents want to know what happens if one parent does not allow the children to visit with the other parent. In those instances, it is best to go to court to plead your case because liberal visitation is favored in New York, absent aggravating circumstances, such as those discussed in the paragraphs above. Courts want to see the children have both parents participate in their lives. 

Parents who discouraged the children from visiting with the other parent, because the children are telling them they do not want to go,  will be discouraged to learn that it is not up to the child to decide who has child custody. Only a judge can decide who has child custody. The courts will listen to the preferences of the child but that is not the determining factor since the judge’s decision entails consideration of a multitude of factors outside preferences.

As for your choice in choosing a child custody lawyer, you want the lawyer you choose to have vast experience in family law.  You want a custody attorney to be able to advise you as to day-to-day decision making because you might make a mistake in a decision that can negatively impact your case. That is why hiring a lawyer who is available to talk to you is important.  Also keeping a diary is very important so that you are documenting facts that may be helpful to your case. Keeping a diary also helps you communicate better with your custody lawyer, so that at each court appearance, your custody lawyer will be prepared to relay to the judge these circumstances in support of  temporary relief pending the fac-finding or trial.

I hope this has been helpful to you.  This is not legal advice and is intended to be informational in nature, and so it is always best to fact-check with an attorney of your choice.


By:  New York Child Custody lawyer and Manhattan Divorce lawyer

       Lisa Beth Older, Esq. 

Can a Party Modify a prior Custody and Visitation Order or Agreement
March 12, 2023

A parent can move to modify a prior order of custody and visitation upon a showing of a change in circumstances and that a change in said Order would be in the children’s best interests. In the 2020 case of Matter of Epstein v Soler-Epstein, cited as 188 AD3d 1052 the Supreme Court Appellate Division, Second Department, upheld the lower Court ruling that where the Father went through an extensive treatment for alcohol abuse,  his visitation could be enlarged to overnight access so long as certain precautions were in place such as a Sober link device and a weekly reporting service.   The Court noted that the evidence showed that the Father learned to recognize that he had a problem and needed to refrain from the use of alcohol.

In the case of Matter of Stepan K. v. Marina M., 188 AD3d 600 (1st Dept. Nov. 24, 2020) the Appellate Division, First Department affirmed a lower court hearing for modification of a prior custody agreement by holding that the Father had shown a change in circumstances warranting a change of custody. The Father was granted custody because the Mother refused to share information regarding the child’s school,  traveled with the children without informing the Father or letting his speak to the children in his absence.  The Mother had also made false reports that the Father had sexually abused the children. On these sorts of facts, the Court felt that the Mother was not fit to be a custodial parent and awarded the Father sole Legal and physical custody of the subject children.

In the case of  Tsung v. Tso, 2021 Westlaw 189198 (1st Dept. Jan. 19, 2021), the mother appealed from a lower court Order made in Supreme Court which granted the Father’s application to modify their parenting agreement and awarded shared custody such that each parent had the exact same number of days with the children. This decision of the Court was based upon the fact that the children had expressed an interest in shared custodial time.  The Court based its decision largely upon the Fact that the Father had established a change in circumstances after proving that the mother regularly interfered with his time and access with the children, that she utilized the services of a nanny when the children could have been with their father, and that she refused to coparent with the Father.  

Domestic Violence is also another factor that a court may consider in modifying a custodial Agreement or prior Court Order. In the case of Matter of Paul Y. v. Patricia Z., 2021 Westlaw 55019 (3d Dept. Jan. 7, 2021), after an eight-day trial, the Family Court modified custody when the Mother showed the Court that the parties’ relationship was so broken down that co-parenting was now impossible and was against the best interests of the children.  In that case, the Appellate Division granted the Mother sole legal and physical custody of the children and agreed with the Family Court ruling that the father had committed domestic violence against the Mother.  The Court went on to conclude that the Mother was kind and nurturing and that the Father, that the Attorney for the child advocated for the change in custody,  and that the Mother had made a showing that  the Father had done at least four acts of domestic violence including but not limited to the fact that the Father had grabbed the Mother’s hair, sat on her, pushed her, kicked her and threatened her with a knife, and twisted her arm.  The Court also alluded to the fact that the Family Court's issued an order of protection against the Father for acts of harassment in the 2d degree.


By: Your Manhattan Divorce Lawyer

Lisa Beth Older 


Family Law and Estate Planning
January 18, 2023



Estate planning and Family Law


Whether you are getting a divorce or staying married, every party should seek the advise of an estate planning lawyer because it can have significant tax consequences for you

There are several considerations that your New York Divorce lawyer should take into account and often times that involves estate planning and referrals to a tax attorney and certified public accountant.  

For instance, regardless of your last will and testament, your spouse will always be able to elect to take his or her elective share against your  will.  That is, you can not “will out” your wife or husband’s interest in marital assets.

There are also tax benefits for gifting assets to your spouse which are tax free because interspousal gifts made during the marriage or at the time of death of one of the spouses as provided in a trust  are tax free events.

If you do not utilize these tax benefits, then you could owe the IRS a lot of money you never planned to pay. 

Other tax considerations have to do with retirement plans. If you have a retirement plan you should have it valued by a forensic expert since the present day value is less than the actual value and this factor will come into play when you divide up the assets between the parties and you might be able to get more of a cash payout on your divorce if you take this factor into consideration.  Also, there are tax consequences as well which the other spouse might be responsible for.  To be smart, consult with your accountant before you settle your divorce action.  


By: Lisa Beth Older

Your Manhattan Divorce Lawyer




January 13, 2023




There have been exciting New Developments in Equitable Distribution law in New York.  The  latest factors include the impact of domestic violence on distribution of marital property and the distribution, so to speak of domestic companion animals.  

The factors for EQUITABLE DISTRIBUTION are as long as they are divorce but the below list is a  current list of what a Judge may consider in dividing up the marital estate in the event of an unfortunate divorce.

DOMESTIC RELATIONS LAW §236B(D) allows the Court broad discretion as to how to divide marital property. They consider the following statutory factors, as well as anything else deemed just and proper. 

The below list has been amended and companion  animals have now been provided for in this equation.

  1. Income and property as of the date of marriage and date of filing
  2. Length of marriage age and health of husband and wife
  3.  Who should occupy, own or possess  the marital residence and contents
  4. Any inheritance or pension rights that might terminate after dissolution of the marriage
  5. Health insurance benefits lost after divorce
  6. An award of maintenance
  7. All contributions  made  to any marital property, whether it be direct or indirect contributions made by the nontitled spouse toward acquisition or appreciation in the asset. The court will no longer consider a spouse’s enhanced earning capacity of a  license, or educational degree or career appreciation as something to be divided  but the court can still consider any other type of enhanced earning capacity resulting from direct or indirect contributions of the non-titled spouse during the marriage.
  8. Whether the asset in question is liquid or non-liquid would  be another factors to be considered and taken into account in making the equitable distribution award.
  9. Future financial circumstances of the husband and wife as a result of the divorce
  10. Economic considerations as to selling verses retaining an assert in its present state and separate from interference by the other party.
  11. The effect of tax consequences to husband and wife
  12.   The wasteful dissipation of assets by either spouse
  13. Any intentional transfer of assets done in anticipation of a divorce action to the detriment of the other spouse
  14. Domestic violence and the nature of it the extent of it and its duration, which went into law on  May 3, 2020. WB, LLP – SJP NYSBA FLS 999998.05912/125642013v.1 3
  15. As for companion animals in the end 2021 the New York State legislature decided to amend the law which governs the “equitable distribution” of marital property.  That statute change now directs that “in awarding the possession of a companion animal, the court shall consider the best interest of such animal.”
  16. And lastly, any other factor which the court shall expressly find to be just and proper and equitable.

That said, it is well settled law that “While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible in a divorce case.” Eschemuller v. Eschemuller, 167 A.D.3d 983 (2d Dep’t 2018). That means that in order to have  a strong case for equal distribution of the marital assets you would want to have a long term marriage with relative contributions by both the husband and wife. This is because the Courtin New York views marriage as an economic partnership.

For instance, In the case of Sogloff to Cravo v. Diegel, 163 A.D.3d 920, 83 N.Y.S.3d 91 (2d Dep't 2018) the Court affirmed the lower Supreme Court’s award of  45% of the marital residence and funds despite the long length of the marriage because the husband did not make a comparable contribution to the Wife’s contribution,  Whereas in other cases, the Court split the marital assets equally because the parties were able to demonstrate both a lengthy marriage and significant contributions.


By: Your Manhattan Divorce Lawyer 

and New York City Divorce Lawyer Lisa Beth Older 

November 17, 2022




On October 8, 2021, the Domestic Relations Act was amended to provide possible support for adult children through age 26. See DRL, Chapter 437 of the Laws of 2021)

Also,  the Family Court Act added a like provision in its Section 413-b.

Both provisions provide possibilities for petitions for continued child support for adult children with certain qualifying disabilities.  

The Mental Hygiene law controls the controlling definition of what diagnosis would qualify for purposes of a developmental disability in an adult child.  If you or someone you know has an adult child and is in need of child support it would behoove you to look into this with a New York Family Law Attorney.

By: Your New York Divorce Lawyer Lisa Beth Older  

November 9, 2022



The behavior of the parties in a New York divorce or child custody matter will affect an award of counsel fees, if an application is made by either party, Normally the monied spouse will pay the majority of the other party’s expenses but there are exceptions to this rule. Each case is fact specific and the Court may consider many factors in fashioning an award, if at all.

In the 2018 First Department matter of M.M. v. D.M., 159 AD3d 562 both parties appealed from the lower court decision  as to counsel fees, and as to other issues, and made the Defendant Husband pay the Plaintiff wife 65% of plaintiffs.  In that case, it should be noted that the parties  spent Seven Million Dollars on counsel fees. The parties paid this out of marital liquid assets on hand. However, rather than make the wife all of her share from her part of equitable distribution the Court noted that the Husband had made a substantially larger salary than the wife.  The Court also noted that both parties engaged in needless litigation which might be why the Court did not award all legal fees against the husband who was perceived as the monied spouse for purposes of this determination.  That was a First Department case.

In contrast, there was a 2018 decision out of the Second Department as to the award of counsel fees. In the case of Greenberg v Greenberg, 2018 Westlaw 3041099 (2d Dept. June 20, 2018) the husband appealed a divorce judgment in the lower court on many issues, one of those issues being counsel fees. There, the Appellate Court held that the lower court properly awarded the Wife counsel fees of $75,000.00 where the husband's "evasive and dilatory actions during the pendency of the action caused an accrual of fees.

In another case where the court took into account the bad behavior of a party during litigation, the Appellate Court upheld the Wife’s counsel fee award of 70% of her legal fees and took into account defendant’s unnecessary accrual of legal fees, wherein he changed lawyers no fewer than nine (9) times, never followed court orders and extended the trial needlessly with “belligerent” behaviors. Behan v. Kornstein, 2018 Westlaw 4223911 (1 st Dept. Sept. 6, 2018).

As a client, you are entitled to receive a bill from your attorney after sixty days. In the case of Greco v. Greco, 2018 Westlaw 2225194 (2d Dept. May 16, 2018),  where the husband appealed from the lower court order granting the Wife ($70,000) to her first attorney and ($37,500) to her second attorney and  $12,700 of expert fees, the Second Department in its ultimate discretion, ruled that it would reverse the award given to the first attorney because the first attorney did not bill his client every sixty days.  The higher court also reversed the expert fees since the expert did not provide the Court with his Affidavit per requirements set forth in Ahern v. Ahern, 94 AD2d 53, 58.

Compare this result with the result of the after trial case of Sheehan v. Sheehan, (2d Dept. May 9, 2018), where the Wife was awarded $25,000 in counsel fees.    With regard to the attorney fee award the Court determined that:  "Considering the parties' relative circumstances and other relevant factors, the award of attorney's fees to the plaintiff in the sum of $25,000 was inadequate."

From the recent case law, then,  it appears that the Courts do favor an award of counsel fees where the facts so dictate.  For instance in the case of Greco v. Greco, 73 NYS3d 765 (2d Dept. May 16, 2018), the wife was granted  counsel fees after her appeal on equitable distribution portions of her case  of $12,000. The Second Department stated:  "Under the circumstances, we find no basis to disturb the award."

As a practical matter, however, many divorce lawyers will require that each client be responsible for their own counsel fees since there is no guarantee that a lower court will award counsel fees that cover their full bill, nor is there a guarantee that the higher Court will affirm a lower court order.

In the Matter of Monique B. v. Anthony S., 2018 Westlaw 3232613 the First Department appellate Division held in 2018 that the attorney fee awarded in the lower court of $250,00  was inaccurate   "that inasmuch as respondent was found to have willfully violated a child support order the issuance of attorney fees was proper under Family Court Act §§438(b) and 454(3)," since the lower court has failed to consider "the parties' ability to pay, the nature and extent of services rendered, the complexity of the issues involved, and the reasonable of the fees under all of the circumstances." W1488759.1 ) 22 30 F.

Post judgment counsel fees may also be awarded in some circumstances, especially if the behavior of the party that is being charged is in violation of a court ordered parenting agreement.   In a post judgment  child custody case attorney’s fees may also be awarded. In the case of  Boukas v. Boukas, 2018 Westlaw 3451549 (2d Dept. July 18, 2018), the mother appealed a lower court decision that denied attorney fees where the Father was in contempt of Court for failing to abide by the parenting time access Order. There, the Second Department modified the lower court order and gave the wife a counsel fee award of $15,000, finding that the mother was  "was entitled to reasonable counsel fees in connection with this matter, as the plaintiffs conduct in violation of the stipulation of settlement caused these fees to be incurred…. An award of counsel fees in the sum of $15,000 is supported by the record."


August 28, 2022

If you are in a child custody battle and the parties were sent out to do a psychological evaluation during the pandemic you may have grounds to challenge that report.  In order to determine whether an expert report can come into evidence the Court must weigh the reliability of that evidence before it can consider it.  In my view, remote testing is not generally accepted by the scientific community as yet for purposes of arriving at an expert opinion as to custody so that it may be challanged. Historically there are two tests that Courts rely upon in doing so, those being Daubert and Fry, but New York follows the Frye test for the admissibility of expert witness testimony, opinions and reports. 

The Frye test is the “general acceptance test,” providing that expert opinions grounded in a scientific theory or technique are admissible in evidence only if the theory or technique used is generally accepted as reliable by the scientific community in which they practice. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Parker v. Mobil Oil, N.Y.3d 434, 824 N.Y.S.2d 584 (2006); People v. Wesley, N.Y.2d 417, 611 N.Y.S.2d 97 (1994); People v. Brooks, N.Y.3d 939, 96 N.E.3d 206 (2018); Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63, 933 N.Y.S.2d 323 (2d Dept. 2011); Lugo v. New York City Health and Hospitals Corp., A.D.3d 42, 929 N.Y.S.2d 264 (2d Dept. 2011)  State v. David D., 37 N.Y.S.3d 685 (N.Y. App. Div. 2016). In other words, the Court must consider the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); see also, Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006). The scientific principle "must be recognized" [widely] and "sufficiently established to have gained general acceptance in the particular field in which it belongs" . Wesley, at 422–424, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion' " . Id., at 439, 611 N.Y.S.2d 97, 633 N.E.2d 451(Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007).

Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 A.D.3d 42, 44, 812 N.Y.S.2d 535 (2d Dept.2006). General acceptance can be established through "texts and scholarly articles" , expert testimony and judicial opinions. People. v. Wernick, 215 A.D.2d 50, 52, 632 N.Y.S.2d 839 (2d Dept.1995), affirmed, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 (1996)..

Accordingly, to determine if said evidence is accepted, the court must, as gatekeeper, analyze whether the expert has used “accepted techniques” to arrive at his or her opinions.   State v. Ralph P., 39 N.Y.S.3d 643 (N.Y. App. Div. 2016). Moreover, it is important for the Court to identify which scientific community’s opinion of acceptability  is relevant in assessing the reliability and general acceptance of the  methodologies used to arrive at an expert opinion.  In the context of this case, the scientific community would be the American Psychological Association

In order for expert opinions or reports to be admitted into evidence there must be a judicial finding that said evidence was arrived at by the use of proper acceptable procedures condoned by that expert’s  scientific community as being reliable through scientific findings, sufficient testing,  treatises, published books or other such papers  demonstrating acceptance of the scientific principle within the applicable scientific community. In order for a piece of expert evidence to be admissible, then, the “principle, procedures and tools of discovery used by the expert must have passed the mere experimental [nascent] stage and become demonstrable scientific knowledge generally accepted as valid within the relevant scientific community.” People v. Bullard-Daniel, 42 N.Y.S.3d 714 (N.Y. Ct. Cl. 2016). The court does not determine whether the expert’s findings are correct, but rather, the court determines whether “those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” State v Ralph P, 39 N.Y.S.3d 643.

Due to the pandemic, many psychological forensic evaluators have been made to rely largely upon remote interviews, remote testing and remote questionnaires, despite cautionary advise by their community to revert to standardized testing as soon as they are able.  

In an article espousing the view of the psychological community on the validity of evaluations conducted remotely during covid,  the American Psychological Association warned that practitioners cannot guarantee a valid equivalency between conducting an assessment remotely and conducting one in person, stating that…”  Replications of studies are needed, and evidence needs to be amassed…” because these assessment methods have always relied on interpersonal procedures that require personal contact and interaction, such as standardized interactions between the forensic examiner and party, and clinical observation of the party in their office.  See,  American Psychological Association. (2020, May 1). Guidance on psychological tele-assessment during the COVID-19 crisis.

As stated above, the consensus of the psychological scientific community is that there is a lack of sufficient scientific literature that would legitimize expert opinions derived from remote evaluations as reliable. 

As such, it is my legal opinion that all such reports should be challenged as inadmissible. 




Your New York Divorce Lawyer 


Lisa Beth Older, Esq. 

Do I have to pay my spouse 50% of my Business?
January 8, 2022

Do I have to pay my spouse 50% of my business?

This article has to do with updates as to New York Divorce Law and equitable Distribution of business interests.

I will try to point out trends that I see in the case law in the various judicial districts and hope that it will provide guidance as to your expectations when you are in litigation over business interests in a divorce action.

In 2021, in the Second department case of Davenport v. Davenport, 2021 WL 1112911 (2d Dep’t 2021) the Wife was only awarded 10%  because of the short duration of the marriage, and because her contributions toward the business was very small.

Compare this to the First Department case of DeNiro v. DeNiro, 2020 WL 3848156 (1st Dep’t 2020) where the Wife got nothing because the court concluded the husband’s business was a gift. In that case there were extenuating circumstances involving the proofs posited at trial. So if you are in the First Department you should be aware of this recent decision.