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Domestic Violence and other Factors in the Determination of Child Custody
April 6, 2012

New York divorce and custody lawyer Lisa Beth Older, Esq discusses domestic violence and other factors in the determination of child custody.

There are many factors that a New York divorce lawyer or New York Family Court lawyer will need to establish in a child custody case. These factors will be discussed herein.

As to the impact of domestic violence, in March 2011 the Domestic Relations law was amended in recognition of the impact spousal abuse has on the best interest of children, requiring that the court consider the factor and affect domestic violence has upon the best interests of the child analysis.

The Hallmark of the DRL amendment appears to mandate that a lower Court consider allegations of abuse as a statutory factor in its "best interests" analysis. DRL Section 240(1); 12 N.Y.Prac. New York Law of Domestic Relations § 21:38. This statute has a precondition that said allegations be set forth in a pleading. DRL 240(1).

Fraud in the Inducement of Marriage
December 20, 2011

Lisa Beth Older, a New York Divorce Lawyer, remarks upon a new case as to Fraud in the inducement of Marriage and the inherent equitable right of the New York Courts to right a wrong.

In this new case the Court elected to void an inheritance of the surviving spouse where the marriage was initially induced by fraud or over-reaching and where the marital spouse knew the partner had dementia when they married. This case is a prime example of the far reaching powers of the Supreme Court to do justice in the face of wrong doing by a spouse.

In the case of Campbell vs. Thomas, (73 AD3d 103 [Mar. 16, 2010; Prudenti, Opinion; Miller, Chambers, Roman, Concurring] the Court held that where a mentally incapacitated person is defrauded into marriage due to a mental incapacity and then dies, the Appellate Division of the State of New York, Second Department has held that the surviving spouse may not be allowed to benefit from the estate of the deceased. In this case, the brother and sister of the deceased were allowed to take the estate of the their deceased brother, and not the Wife, who married the deceased knowing that he was incapacitated with dementia.

This is an excellent cases that stands for the fact that people can not marry a person for the sole purpose of profiting from their mental incapacity. It also stands for the fact that the surviving spouse can be denied the right to inherit under state mandate and law based on the rules of equity that every New York Court may exercise in order to correct an injustice. The New York Supreme Court also held that it must do so to "protect the integrity of the courts themselves as a court must not allow itself to be made the instrument of wrong".

How Does a New York Custody Court or New York Divorce Court Decide Who Gets Custody?
December 18, 2011

Lisa Beth Older, a top New York divorce lawyer, discusses how a New York Custody Court or New York Divorce Court will decide who get custody.

Totality of Circumstances, Statutory Factors, and Weight of Evidence in Best Interests Analysis

In determination of custody, the party seeking modification has the burden of demonstrating the child’s best interests under the totality of the circumstances warrant a modification of the previously entered custody agreement or order (See, Friederwitzer v. Friederwitzer, 55 NY2d 89, 432 N.E.2d 765, 447 NYS2d 893 (1982); Corigliano v. Corigliano, 297 AD2d 328, 746 NYS2d 313 (2002)).

The “existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances.”

The Importance of Sibling Involvement in New York Custody or Divorce Proceedings
December 18, 2011

New York Lawyer Lisa Beth Older discusses the legal implications and importance of considering that Siblings are involved in a New York Custody or Divorce Proceeding.

Generally, “absent an overwhelming need to do so, it is in a child’s best interest to continue living with their siblings." (Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.2d 658, 436 N.E.2d 1260, Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.2d 91, 337 N.E.2d 601;Matter of Ebert v Ebert 38 N.Y.2d 700, 382 N.Y.2d 472, 346 N.E.2d 240 (1976); Keating v. Keating , 147 A.D.2d 675, 538 N.Y.S.2d 286 (2d Dep’t 1989). The Court reasoned that this is because young brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful. Obey v. Degling, with a different parent. Wurm v. Wurm 87 A.D.2d 591 (2d Dep’t 1982; Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536 (2d Dep’t 1991); Matter Bilodeau v. Bilodeau,61 A.D.2d 906, 557 N.Y.S.2d 471 (3d Dept).37 N.Y.S.2d supra at 771. The stability and companionship to be gained from keeping children together is an important factor for the court to consider. Eschbach v. Eschbach 56 N.Y.S.2d supra, at 173. This policy is not absolute however, and splitting the siblings has been recognized as proper where the best interests of each child lie with a different parent. Wurm v. Wurm 87 A.D.2d 591 (2d Dep’t 1982; Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536 (2d Dep’t 1991); Matter Bilodeau v. Bilodeau,61 A.D.2d 906, 557 N.Y.S.2d 471 (3d Dept).

Further, it is axiomatic and well settled that where siblings are involved, the Court should order that they remain together, absent overwhelming circumstances. (See, Matter of Ebert v Ebert, 38 NY2d700, 704; see also, Obey v Degling, 37 NY2d 768.)

The Impact of Psychological Evaluations on Custody Cases
December 18, 2011

Manhattan Divorce Lawyer Lisa Beth Older and Brooklyn Appellate attorney discusses the impact Psychological evaluations have on custody cases and the importance on making objections to the contents before allowing them into evidence.

It has been repeatedly held in this and other appellate division Departments that in custody proceedings, professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent. Wilson v. Wilson, 641 N.Y.S.2d 703, 704 (2d Dept. 1996). In Wilson, this estimable Court reversed the trial court, holding that "...it was an improvident exercise of discretion for the court to admit into evidence the report prepared by the court-appointed psychologist without the consent of the parties (see, Tacconi v. Tacconi, 197 A.D.2d 929, 604 N.Y.S.2d 852 ; Matter of Brice v. Mitchell, 184 A.D.2d 1008, 584 N.Y.S.2d 246). In a custody proceeding, “professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties’ consent” (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273, 299 N.Y.S.2d 842, 247 N.E.2d 659)." Also see Brice v. Mitchell, 184 A.D.2d 1008, 584 N.Y.S.2d 246 (4th Dep't 1992). Failure to properly submit expert reports into evidence constitutes reversible error. Bauer v. Bauer, 88 A.D.2d 737, 451 N.Y.S.2d 865 N.Y.A.D.,1982. May 27, 1982.

Thus, if a litigant does not like what a psychological report says, then they shouldbe sure to request that their New York attorney call the expert to cross examine them at trial. If they do like their forensic evaluation then the litigant should encourage their attorney to admit said report in evidence at trial or use the Report to encourage settlement of their custody case.

New York Divorce Lawyer Lisa Beth Older Summarizes Breaking News Allowing Gay Couples to Dissolve Civil Unions
August 8, 2011

New York Divorce Lawyer Lisa Beth Older points out that as of July 21, 2011 the New York Supreme Court, Third Department, held that with the imminent emergence of same sex marriage in New York, New York gay residents may dissolve a Vermont civil Union in New York. (Dickerson v. Thompson the Appellate Division (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 06009).

A gay couple may secure dissolution of a civil union in most counties throughout New York. In the case of Dickerson v. Thompson, the Supreme Court in New York, Third Department held that same sex parties that entered into a civil union in Vermont may now dissolve their civil union in New York. The Court further noted that a trend has already started wherein other lower Supreme Courts located throughout New York are also granting relief to parties of gay civil unions in a manner similar to granting a New York divorce.

In a stunningly brave decision, this Supreme Court held that a New York Court may provide such equity to aggrieved gay couples as justice requires. It also held that the New York Supreme Court may exercise equitable powers, not just legal powers, if a New York resident is in need of a judicial remedy where none other exists elsewhere. Other New York Divorce courts have followed the lead of this higher Court in Monroe County, Erie County, New York County, Tompkins County and Onondaga County and Westchester.

"It is about time that gay couples are finally being provided equal justice under the law," says New York divorce lawyer Lisa Beth Older. "This case will provide a sigh of relief for all New York gay couples that rushed to marry in Vermont, only to return to New York to find that their civil unions could not be dissolved.”

This same case holding will give New York City divorce lawyers some guidance as to how to dissolve a gay Civil Union without first advising them to live in Vermont for a year. (Supra, N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 06009).