Recent Cases Affecting New York Divorce Law

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DOES EQUITABLE DISTRIBUTION OF PROPERTY MEAN EQUAL DISTRIBUTION
November 27, 2023

DOES EQUITABLE DISTRIBUTION OF PROPERTY MEAN EQUAL DISTRIBUTION

Does equitable distribution of property mean equal distribution in a New York Divorce action? That is an interesting question given that many attorneys advise that you can expect a court to do that in garden variety divorces. But it should not be the end of the factual inquiry and it is not necessarily the ultimate result. Rather, it is a good starting point for analysis of your case, with departures necessarily coming thereafter.

In 2020 interesting case law came down in New York in support of the fact that equitable distribution of property between spouses is not necessarily equal. This is particularly interesting when the valuation and division of marital businesses are at play. The Supreme Court has enormous discretion in dividing up assets between the parties.   In an interesting case that came down in 2019 the Court held that because the parties had been separated since 1089 it would be unjust to give the wife half of the husband’s pension. If you want to read the case you can read the following citations on any law library online at See Allen v. Allen, 179 A.D.3d 1318, 1319, 117 N.Y.S.3d 736 [2020] and Martin v. Martin, 178 A.D.3d 1339, 1341, 116 N.Y.S.3d 714 [2019].

In thinking about equitable distribution, think of fairness and not necessarily equality because the Court has tremendous discretion in looking at the facts to determine a just and fair award.

In DRL § 236(B)(5)(d) the law sets forth statutory factors that a Court must weigh, and the Court should normally set forth which statutory factors were relied upon in making their decision. At the very least there should be an articulation by the court that all factors were considered.

Interestingly enough, the Courts in the Second Department have lately taken into consideration the fact that the parties were separated for over a decade before filing for a divorce.  That seems fair since the economic partnership elapses once the parties physically separate. Physical separation thus becomes an important fact to consider when a NYC divorce attorney advised a client as to equitable distribution in a New York Divorce action. However, in making these awards the Court makes it very clear that they are also considering the length of the marriage, and other financial concerns and do not rely solely on one statutory factor.   Keren v. Keren, 201 A.D.3d 906, 158 N.Y.S.3d 592

 

By: 

 

Your Manhattan Divorce lawyer 

Lisa Beth Older, Esq. 

 

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JURISDICTION IN A NEW YORK CHILD CUSTODY CASE
October 26, 2023

JURISDICTION IN A NEW YORK CHILD CUSTODY CASE

DRL Section 76 deals with the New York version of the UCCJEA, or Uniform Child Custody Jurisdiction Enforcement Act which is designed to cover situations where the parents of a child live in different states and are in Family Court in their respective states, or, if married, have filed for divorce.  It is basically ruled by a determination of the home state of the child, or where the child resided for the last six-month period.

The Courts really frown upon forum shopping, so the parties are now generally bound by the following parameters of the statute. Previous to DRL Section 76 there was much confusion in New York divorce and Family Court cases.  Under this law, New York court has absolute  jurisdiction to modify a child custody judgment or order

Also, New York will retain the power to adjudicate custody to the  exclusion of a foreign state so long as the child and one parent have significant material connections and nexus to New York.  However, if the Court determines that the child no longer resides in New York and neither of his parents reside in New York then exclusive jurisdiction over the matter will not be maintained.

This rule becomes particularly important when parent kidnapping is involved or where one of the parties abscond and remove the child from New York.  Under these circumstances,  the New York court will deem the state where the child has been wrongfully removed as the true home state.   This makes perfect sense since it discourages parties from forum shopping. So , in New York, what happens in this instance is that the time the child remains in a foreign state is tolled for purposes of the statute and is viewed as a mere temporary absence.  

If a child has been wrongfully removed from New York pursuant to DRL 75–a(7), generally speaking the Courts will order the child returned to New York but there are exceptions to this rule since there are competing rules of law governing the states at issue when there is a question as to which state will hear the case. 

The New York Court will not be deprived of jurisdiction in the midst of litigation on custody due to the fact that a parent has fled the state.  Arnold v. Harari, 4 A.D.3d at 646–647, 772 N.Y.S.2d at 729 (finding the UCCJEA applicable to situation where children were transported to and from Israel and where wife had commenced Israeli proceeding).

When there is a conflict between the States the Courts will generally hold a judicial conference to discuss the matter so as to determine which state will retain subject matter jurisdiction.

This rule of law becomes particularly important when foreign countries are involved.  Then the matter might end up in the Hague convention where a further determination may be made.   For instance, if a Father flees from a foreign country and takes up residence with the child in New York, even for a period in excess of six months, if the foreign country had previously given the Mother an Order of custody, that foreign Order will generally be deemed controlling.

That said, there are exceptions to this rule. For instances, a party can seek emergency jurisdiction based upon domestic  violence.   I will discuss this exception in my following articles.

I hope this has been helpful.

This is not legal advice, just information based upon my own opinion on th estate of the law. Retain a New York Divorce lawyer of your choice before taking legal action.

By: Lisa Beth Older 

Your Manhattan Divorce Lawyer

 

 

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Can a custodial parent relocate the subject children without consent?
June 14, 2023

 

Can a custodial parent relocate the subject children without consent?

This is a complex legal issue that is worthy of exploration.

The Pandemic has caused an increase in cases where a divorcing parent wants to leave the city for a more suburban life. In New York City, the move often involves a request to move to places like Westchester, Long Island or New Jersey.

In the case of H.K. v R.C. 2021 NY Slip Op 21190, 2021,  Judge Cooper rendered a decision on an application by the Mother to relocate the children. opinion is uncorrected and subject to revision before publication in the printed Official Reports. In the above case of H.K. v R.C. you will see what factors the Court found compelling in allowing the move. Of course, the starting point in this analysis is whether the proposed move will promote the child or children’s best interests? In arriving at that answer, the Court started by stating that the Court must consider such things as the distance of the proposed move from the current local where the children reside. For instance, a ten-mile location outside the confines of the originating County seems to be more likely to be granted than a fifty-mile move, depending upon the unique circumstances of each case.

In this post-judgment case, the mother wanted to move with her daughter to Westchester County to the city of Scarsdale which is only  about 10 miles from New York City. The Defendant lived in New Jersey and opposed the move.

In the resolution of this case, the Court balances the best interests of the child against whether the move would significantly alter the child’s relationship with the Father.

The second issue that was discussed in how you arrive at that determination, whether on paper by way of motion or at a hearing on best interests with the taking of testimony.

Usually, the Courts prefer the more formal approach such as getting an attorney for the child on board, perhaps ordering a forensic evaluation, hand a fact finding or trial. Of course, the children; s preferences can be heard in the form of a Lincoln Hearing which is an in-camera interview with the Judge.

In the case at issue, the Father had only alternate weekend visitation, having chosen during the divorce proceeding to relocate himself to a more suburban community in New Jersey with weekly dinners in New York. There is the facts also showed that the Father did not engage in the child’s daily activities. The Father did all the driving since he exercised his visits in New Jersey. The parties also had a marital agreement disallowing relocation from New York City absent the consent of the father.

The Mother tried to persuade the Father to consent to relocation of the child by pointing out that COVID-19 pandemic "has devasted NYC" and that "thousands of families have already left the city, including more than 100 students from [the child's school] alone." Plaintiff went on to say that she feared that this [*2]"exodus out of the city" would result in lasting damage to the public school system and otherwise "negatively impact [the child] and his future. H.K. v R.C, supra.

She also told the Father that the child would have a better quality of life because the schools were better and the social atmosphere in the suburbs was superior to New York County.

In that case, the driving distance between the Father’s home in New Jersey and the new residence was not so much longer that it would interfere with his contact with the child. Of course, the Father objected to her proposal, so the matter ultimately had to be decided in Supreme Court.

In the Court’s opinion, the Court started out by citing the case of Matter of Tropea v Tropea, 87 NY2d 727 (1996) which states that children are not property to be dealt with cavalierly and that a best interests approach is necessary in order to decide geographic relocation.  The factors listed for consideration in this case start with an analysis of  “…the degree to which the child's life can be made better economically, emotionally, and educationally. “ at 741), the decision makes it clear that courts are free to consider such other factors as the circumstances of the case may require in order to determine what is in the child's or children's best interests. The Court found that the arguments as to the "suburban factor," was very compelling and gave great weight to it, especially since the Father himself chose to move to the suburbs.

Another compelling factor was the Mother’s willingness to assume all of the driving obligations associated with the move, which would better promote the Father’s contact with the child. In the end, the Court allowed the move.

The Court also held that a hearing must be held, with the appointment of an attorney for the child and a forensic evaluator. It held that…“…determinations require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal results for the child (S.L. v J.R., 27 NY3d 558, 563 [2016])." This is equally true for relocation cases, where the "weight of the interests as stake" (id.) can be every bit as high as in any child custody proceeding (see Matter of Conroy v Vaysman, 191 AD3d 977, 980 [2d Dept 2021] ["(t)he court erred in not [*4]conducting a best interests analysis under Matter of Tropea. Further, as facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required"]).

In my opinion, the age of the child is also relevant,  as are various other salient factors as discussed above, all of which must be considered by a Judge before allowing for relocation of children. For instance, in New York State an Eighteen (18) year old child is no longer governed by custody law and may reside with whomever he or she desires even though the child support obligation will continue to age 21. However, even a child as young as sixteen has a strong voice as to which parent they wish to reside with, with  the exception of the child being unable to make that choice reasonably due to serious problems with his or her choice.

The above discussed case, if nothing else, is interesting and insightful and aptly shows that is no one result for a relocation case, nor in a child custody case and that each case must be considered on its own facts.

I would definitely take a look at the case with the attorney of your choice before embarking on a relocation case.

I hope this information was helpful.

By: Your New York Divorce Lawyer

Lisa Beth Older, Esq.

 

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Are you looking for an award of Sole Legal Custody?
June 1, 2023

Are you looking for an award of Sole Legal Custody?

An award of sole legal custody in New York generally requires a hearing with taking of testimony and evidence in support of your case. In contrast with a proper entry of an interim emergency residential or visitation order, an interim award of sole legal custody (decision making) on sharply controverted affidavits without a hearing is error as a matter of law. In the case of Khan v. Dolly, 6 A.D.3d 437, 439, 774 N.Y.S.2d 365 the Second Department held, in pertinent part, that:

“….The law is well settled that, as a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Hudgins v Goodley, 301 AD2d 524 [2003]; Matter of Klang v Klang, 235 AD2d 476 [1997]). The record contains controverted allegations, inter alia, that the mother was jeopardizing the child's health and the father was alienating the child from his mother. Moreover, reliance upon professional reports [such as the Mother’s attached LCSW letter] without the consent of the parties is impermissible, since such reports contain inadmissible hearsay (see Wilson v Wilson, 226 AD2d 711 [1996]; Matter of Brice v Mitchell, 184 AD2d 1008 [1992])….”.

The question of whether an interim legal custody determination pending the trial date requires a hearing was resolved by the Court of Appeals in 2016 in S.L. v. J.R., 27 N.Y.3d 558, 56 N.E.3d 193, 36 N.Y.S.3d 411 (2016.) That decision advanced two important rules. First, in essence, it abrogated the old ''adequate relevant information'' standard, which your Affirmant would argue does not apply to the case at bar, given the absence of evidence before the Court going beyond the diametrically opposed versions of events submitted to the Court on paper. Moreover, in reversing both the Second Department and the trial court, the Court of Appeals noted the second rule, that ''[ o]ur precedent makes clear that custody determinations should '[g]enerally' be made 'only after a full and plenary hearing and inquiry'."

This decision is from the highest Court of New York so it can be depended upon. However, this is not legal advice and provided for information purposes only.

 

By: Lisa Beth Older, Esq.  

Your Manhattan Divorce Lawyer