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Articles on New York Divorce Law
Oct 2023See Lisa's comments contained in an article on divorce and covid published by CNBC and written by HOLLY ELLYATT
Oct 2023What is a Postnuptual Agreement?
Jun 2023Fathers' Rights in New York
Jun 2023The 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
Jan 2023Family Law and Estate Planning
Nov 2022NEW CHILD SUPPORT LAW POSSIBLY PROVIDING ADDITIONAL SUPPORT FOR ADULT CHILDREN THROUGH AGE TWENTY SIX
Dec 2021Can I withdraw my Divorce?
DO SAME SEX PARENTS HAVE EQUAL RIGHTS TO CHILD VISITATION AND CHILD CUSTODY?
November 27, 2023
DO SAME SEX PARENTS HAVE EQUAL RIGHTS TO CHILD VISITATION AND CHILD CUSTODY?
Same sex parents who adopt the children of the marriage have equal rights to child visitation and child custody but what about if they are not married? Here there is a different standard of proof.
It has been held that a nonbiological and non-adoptive parent has standing to sue for custody or visitation as long as they can prove that the biological parent and the other party had a previous agreement in place to have the child and raise the child together as equal parents. The Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 28, 39 N.Y.S.3d 89, 61 N.E.3d 488  is a case that demonstrates this point of law. However, the evidentiary showing consists of a high standard of proof of clear and convincing evidence.
You can try to meet that burden of proof in a variety of ways, but it would then be up to the Court to see if you satisfied that burden of proof.
Let us say that you did not formally write up an agreement to coparent a child conceived of the relationship. You can meet that burden of proof by a variety of ways so long as you can prove that the parties really intended for this to happen. Social media, letters and internet postings can show this intention to raise child ren together as can the types of events both parties attended, such as a bris, baby showers, engagement parties, and other such family gatherings attended in anticipation of raising children together in the future. What the parties say to others can also be considered. For instance, if the biological parent refers to the nonbiological parent as the child’s “mother” or “father” an argument can be made that the parties are both parents withing the meaning of a New York Custody Article Six proceeding. Nevertheless, it is still up to th Court to decide whether the burden of proof has been met and the nonadoptive parent has a big burden, as the Appellate Division gives great importance to the credibility of the lower court’s findings in reviewing an unfavorable family court decision. See Matter of Muldavin v. Muldavin, 248 A.D.2d 209, 209, 670 N.Y.S.2d 24 [1st Dept. 1998].
What is the takeaway here if you are the non-biological parent? Try to adopt the child as soon as possible or else, at the very least, enter into a written contract setting forth both of your intentions to raise the child together regardless of the biological status. After the child is born, make other writings and keep track of other items of evidence that will help you make the argument that you are a parent in the event that you become estranged from the biological parent and still wish to see the child.
By: Your New York Divorce Attorney
Lisa Beth Older, Esq.
See Lisa's comments contained in an article on divorce and covid published by CNBC and written by HOLLY ELLYATT
October 26, 2023
What is a Postnuptual Agreement?
October 7, 2023
Many people do not know what a postnuptial agreement is and whether or not they should sign one. As a New York Divorce Lawyer located in Manhattan I must say that although I am capable of litigating divorces I find that the parties benefit from a more amicable approach to settling their marital issues. This is where a postnuptial agreement, collaborative divorce or mediation comes in handy. Many of my cases settle along these lines.
Postnuptial agreement differ from Stipulations of Settlement because they must be executed during the marriage but before a divorce action is commenced. In essence they are the same as a Separation Agreement but do not feel as final and hence the parties might prefer them to a separation agreement. But they are just as binding. They are also similar to separation Agreements, so long as they meet the legal criteria set forth by the statute. As a Manhattan divorce lawyer, I do my best to draft Separation Agreements that are fair so that they will withstand judicial scrutiny. That said, the Agreement should satisfy the goals of the client.
In New York couples are allowed to decide how to divide their property between themselves when the law might otherwise not provide for what they are hoping to achieve so long as certain requirements are met to the satisfaction of the court. The Agreements will be enforceable if they are executed and recorded in a manner prescribed for the filing of a deed in New York. An agreement cannot be made based on fraud or duress. Lastly, the agreement should disclose all assets debt and income of the parties and the parties should obtain independent counsel who have the best interests of each party at heart. It is not advisable to have one attorney review it for both of you.
A post nuptial agreement may come in handy for many reasons. First, if you married without a prenuptial agreement this agreement could cure any financial misunderstandings or expectation the parties might have had going into the marriage. Other reasons for a postnuptial agreement is if the parties are opening up a business and one of them wishes to protect their rights in the business in the event of a divorce.
When parties marriages are faltering, postnuptial agreements have the benefit of preserving the assets of the marriage while the parties are deciding on whether or not to divorce. The agreement can also address expected inheritances, especially where comingling can be a problem. It can also address spousal support and child support so long as the rights that you would otherwise have had absent an agreement is set forth in the Agreement and that you are honest and transparent about your income assets and debts. DRL §236, Part B (5-a) requires the parties to know what they are giving up in a postnuptial agreement, so it is wise to set forth in your agreement the proper guidelines that control spousal support and child support.
In this way a postnup can differ from a prenup since a prenup typically cannot address child support and child custody especially if no children are yet born of th parties.
Pursuant to DRL Section 236 B 3 any martial agreement made before or during the marriage in a formal writing which is “subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded” is enforceable. You can address many things in an agreement of this sort such as contracting for provisions in a will, ownership and division of property, amount and duration of temporary and final spousal maintenance or other terms and conditions of the marriage relationship so long as it follows Section 5-311 of the General Obligations Law. The parties can do this without the necessity of involving judicial intervention. They can also agree in a postnuptial agreement as to how they will characterize their property acquired during the marriage as being “separate or “marital.”
Postnuptial Agreements are particularly important when it comes to children of the marriage. Please note that although it is relevant to set forth the parties agreement as to child support and child custody the Court always has the last word on such issues. That said, it is helpful to have those issues included in a postnuptial so the Court can glean and consider the intention of the parties.
That said the parties can always agree on how the children will be raised, such as choice of religion even though this is not governed by statute rather than case law. See the case of Jabri v. Jabri, 193 A.D.2d 782, 598 N.Y.S.2d 739 (2d Dep’t 1993))
Do not, however, include terms that inherently shocking to moral conscious or these provisions will likely be struck down by the Court. .
Many of the items you wish to explore and treat in your postnuptial agreement are not found in forms you find online. Your attorneys should thus be creative in arriving at the terms they which to include. When it comes to custody, however, before sure you are focused on what is in the children’s best interests since that is paramount to the Court’s interest in enforcing your agreement.
You should also consider the fact that circumstances change. You can provide for that as well in your agreement by allowing the parties to move the Court for modification of the terms of the Agreement.
Providing for Arbitration as to property and spousal support in the event of a New York Divorce is also a good way to resolve the issues without going to court and the Court will favor this and usually enforce arbitration decisions made with just cause. See the cases of In re Lauren S. v. Ira S., 25 A.D.3d 526, 811 NYS2d 1 (1st Dep’t 2006); Stillman v. Stillman, 55 NY2d 653, 446 NYS2d 942 (1981). But do not expect the Court to allow you to make arbitration decision over children and child support.
Postnuptial agreement differ from Stipulations of Settlement because they must be executed during the marriage but before a divorce action is commenced. In essence they are the same as a Separation Agreement but do not feel as final and hence the parties might prefer them to a separation agreement. But they are just as binding. Postnuptial agreements often entail less acrimony so they should be considered as a tool for parties that have not made up their mind as to divorce but rather want to delineate their rights in a formal document “just in case.”
There is another important distinction which must be made between the prenuptial agreement and the postnuptial agreement. Agreements made prior to the marriage entail no fiduciary right to one another because they have no right or reason to rely upon the representations of the other party. However, once married, this changes. Another reason they are different is that of course the parties have not yet accrued marital assets subject to equitable distribution.
Prenuptial Agreements and Postnuptial Agreements: What you should know
October 5, 2023
What are things that should be included in a prenuptial or postnuptial agreement?
The first thing that a prenuptial agreement (or “prenup”) should address is the protection of the pre-existing assets of the bride and groom. But there is so much more that can be and should be addressed in a prenuptial agreement which can protect against misunderstandings between the parties down the road as to who owns what asset. It can also make your case so much easier to resolve in the event of the failure of the marriage, especially if both parties have been concise and clear as to the intentions when they married.
New York State has a very broad rule governing marital assets called Equitable Distribution Law. Under this law it is all about fairness and voluntary financial disclosure. Further, if you intend to live in New York, and be governed by New York law be aware that the courts will routinely consider businesses and trusts as marital property. As such, if you are intending marriage, it is extremely important that your agreement address all of the assets that a New York court might consider in dissolving a marriage.
New York law will also designate certain property as being your own separate property. As such, it is very important to designate and define in your agreement what the parties will consider to be separate property and what the parties will consider to be marital property.
Prenuptial agreements were designed initially to protect property that was acquired prior to the marriage. More recently, however, prenuptial agreements are becoming more expansive and are also addressing how marital property will be treated during the marriage itself, but prior to a separation event.
Prenuptial agreements are made and intended to supersede the equitable distribution laws of New York. Equitable distribution of property is a right that each party has to have property acquired during the marriage distributed properly and justly in the unfortunate event of a dissolution of marriage.
As such, in entering into a prenuptial agreement and to ensure superseding the rules of equitable distribution, the language should provide an express waiver of these rights under equitable distribution. This waiver language is especially important given that a prenuptial agreement that provides for distribution of marital property should, if drafted properly state that it is the parties’ intent that there be a deviation from the rules of equitable distribution, such that the parties intend that there agreement should control distribution of property in the event of an ambiguity of interpretation.
Thus, it is important to have strong language and clear definitions in a prenuptial agreement because the legal construct of equitable distribution law gives the New York Supreme Court broad extreme discretionary power over the marital estate as to how property will be divided between the parties in the event of a divorce proceeding. If you want your prenuptial agreement to prevail against any challenges in a divorce proceeding, then it is important that the document be drafted properly, executed properly, and contain the proper definitions and waivers.
In my opinion, as a New York Divorce Lawyer, it is also very important for each of the parties to have independent counsel to read and go over the agreement with them, so that they are fully knowledgeable of what they are signing.
Additionally, one should also consider past and prospective gifts from your parents while drafting a prenuptial agreement. When parents are expected to provide significant financial contributions to a couple, if you wish to protect these gifts, these gifts should be described in your prenuptial agreement as a separate property gift to that respective child, however titled. If the gifts of third parties are not expressly treated in your prenuptial agreement and if the gift is commingled with other of your marital property it might be considered a gift to the relationship, and then the property loses its separate property characteristics, and a court could consider that gift as marital property when it comes to the division of the estate.
Another consideration of import which should be addressed in a prenup is the instance when the parents of a couple loan money to the marriage. It is important that in any prenuptial agreement you address what is intended by the loan proceeds money by parents or by third parties in the context of a marriage. Sometimes parents will loan money to their child, in an effort to assist them in covering their living expenses and expect that loan to be repaid. In essence, then, the loan was never intended as a gift to the marriage. This is particularly important to address in your prenup because if you do not address this issue your spouse could argue that the loan was a gift to the marriage and hence was marital property.
During the marriage, it is often the case that parties contribute to their respective 401(k) or pension plans. It is important that you prenuptial agreement addresses these retirement plans. If the parties had retirement plans prior to the marriage, and they wish to protect that portion of the retirement plans, which accrued value prior to the marriage, then that must be stated in the agreement. However, if contributions to those plans will continue throughout the marriage if the parties do not intend to share those contributions in the event of a divorce, this language can be included in a prenuptial agreement as well.
To conclude, the prenuptial agreement is a very formal agreement that should protect all of your property rights in the event of a divorce so long as it is properly executed, there are attorneys involved in the review process, the terms of the agreement are concise and capable of enforcement, the terms are fair and there has been an adequate exchange of financial disclosure.
There are also agreements called postnuptial agreements whcih I will deal with in a separate article. These agreements can be a bit more complicated because they can address several issues of import that cannot be addressed in Prenuptial agreement, such as child custody, support, and visitation.
Often times a postnuptial agreement can be considered as synonymous with or as a basis for a separation agreement and can be effective if executed properly to avoid a costly litigated divorce action.
Postnuptial agreements are entered into between parties who are not quite sure whether they are ready for a divorce or whether they are willing to give the marriage another shot. These agreements also provide an avenue of recourse to a prenuptial agreement if certain issues arise during the marriage which were not addressed in a prenuptial agreement, or if no prenuptial agreement ever existed at all.
I hope this information has been helpful to you. That should not be considered legal advice, and you should consult with a Lawyer before acting upon anything contained in this article.
By: Lisa Beth Older, Esq.
Your Manhattan divorce, prenuptial, and postnuptial lawyer
Can I appeal a Child Custody Decision?
October 3, 2023
Can I appeal a Child Custody Decision?
I am often asked whether my client should appeal their New York child custody decision. If you are in Family Court, or in Supreme Court, and if you have undergone an evidentiary custody trial, or fact-finding, the court will render a Final Decision which will later be settled as a Final Order. You are bound to comply with that Order. However, if the court arrived at the decision in error, whether in law or in fact, you may file an appeal.
Usually, appeals are filed against final orders. However, temporary orders may also be appealed if there was judicial error, but you cannot appeal them as a matter of right. Rather, you must make a motion to the Appellate Court which governs your geographical area, for permission to appeal, which is often times called a motion for leave to appeal.
There is a specific procedure in place to initiate and perfect an appeal. These rules must be adhered to or else you risk having your appeal dismissed. After you have received the Final Order or Judgment which you wish to appeal be sure it was done upon Notice of Entry. You want to appeal from a Final Decision and Order within thirty days from the date it was entered with the Court Clerk. Usually, your thirty days will start to run from the date you were actually served with the Final Order or Judgment with the Notice of Entry.
An appeal will lie when a judge has made a substantial mistake in your case, which resulted in harm to your position taken at trial. The mistake can either be legal or factual.
In New York, we have four Appellate Divisions that hear cases throughout the state of New York. The four judicial departments that hear appeals are the First department, which hears cases from Manhattan and the Bronx, the Second department which governs cases that arise from Queens, Staten Island, Long Island, and Westchester. We also have the Third Department and the Fourth department which hears cases in upstate New York depending on the geographical area.
Each Appellate Division has its own set of court rules. Each appellate division also lists all of its rules on their respective webpage, and I find that their webpages are very user-friendly. However, it is best to seek an appellate attorney to consult with before you attempt to appeal a decision or defend one on your own.
In my legal experience and opinion, as a New York divorce lawyer and New York child custody attorney it is very difficult to get an Appellate Division court to overturn a prior custody decision made by the lower trial court. In fact, it is often more difficult to file a successful appeal in a child custody case than any other kind of case because the trial judges in Family Court are given great respect and deference in the way that they heard the case, managed the trial, and handled the litigants. In Family Court or in Supreme Court, the trial judges often are the same judges that preside over the entire case so that these judges have a unique perspective and first-hand observational knowledge of what occurred between the parties, and this is given great weight by the Appellate Division.
In an appeal involving children, the attorney for the child will often appear in the appeal as well to file a brief. Often times their position is identical to that taken at trial, although this may vary, depending upon the facts of the case.
The filing of the Notice of Appeal in the Court where the decision was made is just the start of this sort of litigation. Do not think that filing a Notice of appeal means that you have successfully appealed your case decision. This would be a fatal assumption. Once the Notice of Appeal was filed, you must still perfect your appeal by filing a brief within the timeframe imposed by the appellate division court order. The appellate division will provide a scheduling order for the parties to follow. Often times it is within 3 to 6 months from the date of the filing of the notice of appeal but again, this depends on whether or not a motion to stay has been filed or there are other factual considerations to be made. I have seen appellate Divisions give as little as sixty days to perfect an appeal, it all depends on the facts of your case. Adhere to the Appellate Division Scheduling Order. But if you cannot perfect your appeal on time you are allowed to make an application to enlarge the time in which you must protect the appeal and these enlargements are sometimes granted on good cause shown.
The filing of an appeal is hyper technical. As you can see from the courts website, there are particular rules that control which limit anything from the number of words you can use, the type of font you can use, and the way your appellate brief will be presented to the court. The rules governing the formatting of the brief, the way your points are laid out, your Table of Contents and the Index requirements are extensive, and you must take particular actions in this regard so as not to fall short. The printing of the transcripts and the brief is also complicated and often times requires retaining a printing company to assist in the preparation of the settlement of the transcripts and the filing and service of the Brief. In short, appeals are very expensive, and should not be considered lightly.
If you are appealing in Family Court it is important to note that appeals from a family court decision are a tad bit easier than an appeal from a Supreme Court decision. In Family Court, the parties have the right to appeal from what is called the original record. Generally speaking, the Appellate Division will assign a case worker who will manage the file. Still, it is better practice to subpoena the Family Court file and follow up to make sure the file makes its way to the courthouse file manager.
Lastly, the Appellate Division normally requires that the appealing party serve and file multiple sets of transcripts of the lower court’s trial proceedings. As such it is always a good idea to start ordering and gathering all the transcripts of the trial and even those transcripts of earlier pretrial proceedings which you think might support your case.
If you have clear judicial error, and if you can prove it, then you can file an appeal. But in my opinion make sure you have consulted with a New York child custody appellate attorney or New York custody appeals attorney and that you have fully familiarized yourself with the Appellate Division rules. I find the Court Clerks to be extremely helpful. However, know in advance how complex, expensive, and time-consuming it is to appeal and be sure that your decision to appeal is based upon your review of viable judicial error or mistakes made as to facts and law. That said, you cannot just appeal from a lower court decision because you did not like the fact that you lost the case. In fact, is not enough to file an appeal where there is no merit to it as that could lead to the imposition of attorney’s fees or sanctions if the appeal is deemed frivolous. Toward that end, interview lawyers who have your best interests at heart and good luck. I hope this helped explain a rather complex area of law. This is for informational purposes only and is not intended as legal advice and so consult with the best divorce or child custody attorney of your choice before taking action on anything stated in this article.
Dated: October 3, 2023
By: Lisa Beth Older, Esq.
Your child custody appeal lawyer
PRENUPTIAL AGREEMENTS ACROSS BORDERS
August 23, 2023
INTERNATIONAL PRENUPTIAL AGREEMENTS ACROSS BORDERS
Here are some factors to consider while entering into a prenuptial agreement if you are negotiating the agreement out of the United States or abroad but wish to eventually enforce it in New York State.
Many people ask whether a foreign prenuptial agreement will hold up in other states. A particular concern here is what type of prenuptial agreement will hold up in New York. In general, and this is not legal advice, New York will enforce foreign prenuptial agreement if it is acknowledged in a manner prescribed for the filing of a deed, if it was enforceable in the country where it was entered, if due process is not violated, if it was without overreaching, if it was not made under duress, or if any other public policy is not violated. That said, it is discretionary within the courts to determine what contracts or what divorce judgements they will enforce, and what they will not enforce, so it is not a guarantee that a foreign divorce judgment, or a foreign prenuptial agreement will be automatically enforced in New York.
In that regard, the New York courts, in general, will uphold prenuptial agreements for the most part if they are executed in the manner described above and like fairness as defined above.
A very important New York case to consider in this context, or in any context involving a prenuptial agreement, is Gottlieb versus Gottlieb, published in the NY Law Journal (NYLG January 29, 2016, First Department, State of New York which upheld an Agreement that looked one sided. In the case of Gottlieb the court discussed the New York law contained in DRL section 236 b(3) as it applies to prenuptial agreements and the court held that prenuptial agreements executed properly will be deemed binding as to equitable distribution of property even if the agreement may not be deemed fair by ordinary measures, so long as the parties knowingly entered into the prenuptial agreement, had legal advice, and was not obtained by duress and overreaching. However, this might vary from Judge to Judge.
As to the provisions of the prenuptial agreement as to spousal support (alimony) or maintenance, a slightly different standard applies since maintenance in spousal support and child support or more closely scrutinized by the courts. The rule of law, as to maintenance and support, is that the award must be fair and reasonable at the time that it was made, and not unconscionable upon the entry of a final divorce judgment. What is important to note here is that the Gottlieb court in New York county said that with respect to unconscionability, that even though the prospective bride and groom owe a fiduciary duty to the other side not to be overreaching, nevertheless the agreement is effective even if it is a one-sided agreement so long as there was no duress, overreaching and was knowingly executed. This was not a unanimous decision and some of the judges concurred but with the exception that they found that couples that are not yet married do not owe each other a fiduciary relationship.
That said, there are other Counties and judicial Departments that more strongly adhere to the notion that fairness of the agreement is important. For instance, in the Second Department, in the case of Petracca v Petracca, 101 AD2nd 695, the court took the position that the Prenuptial Agreement was not enforceable in that situation, where they excepted the wife’s position that she was bullied into signing the agreement.
The existence of multiple residences of the parties to the prenuptial agreement springs an interesting inquiry as to whether all the multiple states at issue will enforce an otherwise enforceable prenuptial agreement entered in just one of the multiple states of residence.
This is where the Uniform Prenuptial Agreement Act comes into play, if at all. This Act deals with the interplay between the laws on prenuptial Agreements across the United States. New York has not adopted this Act, but 29 other States have. Though many states have adopted this set of laws, New York has departures from it that will impact parties to a prenuptial agreement if the parties travel from state to state so it is important to consult with attorneys in all the states of residence prior to deciding where to enforce your agreement.
By: Lisa Beth Older, Esq.
Your New York Divorce Lawyer located in Manhattan.
This is not legal advice and is informational only. Always consult with an independent counsel of your choice before engaging in the drafting of any legal document.
PRENUP OR PAY OUT: CONSIDER A PRENUPTIAL AGREEMENT BEFORE MARRYING
August 23, 2023
PRENUP OR PAYUP
How does one take the financial risk out of marriage while maintaining a strong and loving relationship? Risk mitigation is a term most commonly used in business practices, which is also referred to as hedging your bets. For instance, when you are about to buy your forever home, you make sure that we do our due diligence before signing the purchase agreement. We hire an appraiser and an inspector to go over every nook and cranny of that property to make sure we're making a sound investment.
Yet when we fall head over heels in love, and romance blossoms between two parties, it is as if all logic goes out the window. All we can see is that wonderful, intelligent, funny, and caring person in front of us and we tend to forget that marriage is a business partnership and contract between two parties, so why should we treat that any relationship differently than any other contract? You're looking to make a lifelong commitment towards your spouse to be, to build a future together, and to invest in your marriage. As much as you like to think that you know everything about this person, and that you have the same ideas about your future together, statistics show a divorce rate of anywhere from 30-70% depending on numerous factors. These factors could be age difference, educational background, income, respective assets, children, ambition levels, cultural differences, financial differences, political views, socio economic background, among others.
Based on statistics marriage, unfortunately, is considered a high risk "investment". With that in mind wouldn't it be wise to "hedge your bet" and protect yourself and your interests against potential liability, financial exposure, and the unknown, to avoid unnecessary damages when faced with a divorce?
If both of you are young and coming into this marriage with nothing, with no preexisting assets, and with smaller income expectancies maybe a prenuptial agreement is not for you. Nevertheless, it is highly recommended in New York since New York Court favor prenuptial agreements.
You might be coming into this marriage with preexisting assets, such as a house, an inheritance, a retirement fund, and significant savings. There might be a huge disparity in income. You might have children from a previous marriage. You might own a business. You might have spent years furthering your education to become a professional, an expert in your field, with speaking engagements, and book deals. You might have to sacrifice your high paying job to take time off to become a stay at home parent to raise your children, losing out on income, savings, retirement money, promotions.
In any of the above scenarios a prenup serves an important role in the event of a divorce. Without a Prenuptial Agreement you might have to pay up, perhaps giving away huge amounts of money that was derived from appreciation in value of preexisting assets, or enhanced earnings, that you or a previous generation worked so hard to gather to provide you with financial security.
A prenup is really an excellent opportunity to sit down before tying the knot to test the strength of your relationship. It's also an opportunity to set forth your expectations for this marital partnership and romantic union. If you can't work out your differences and come to an agreement at this early stage of your relationship, it's not going to be any easier 10-15 years from now.
My name is Lisa Beth Older and I'm a successful Family Law Attorney with over thirty years of experience in this field of law. I have appeared on several major news networks as a commentator on these sort of issues. If you're contemplating marriage and believe a prenuptial agreement is something that would benefit you, please contact my office to schedule a consultation to go over your specific situation and what would be most beneficial to you.
Your Manhattan Divorce and Child Custody lawyer
*This is not intneded as legal advice and is for informational purposes only.
Fathers' Rights in New York
June 19, 2023
Fathers' Rights in Custody Matters in the State of New York
Fathers have always faced a difficult challenge ahead of them but especially now as the law on father's rights evolves. Historical data suggests that mothers had a greater chance to prevail on a custody case then fathers, but in recent years, fathers' rights have become more recognized and protected by law.
For instance, the “tender years” doctrine has become outdated, and it is no longer [presumed that the Mother should have the children during infancy. In New York for instance, custody decisions are decided on what is in the best interests of the child. They are decided in the context of a divorce action in Supreme Court or in a Family Court action. You do not necessarily have to get a divorce to fight for your custodial rights because Family Court can hear your case.
However, once you file a New York divorce action you must alert the Family Court to your divorce filing and then move to consolidate the Family Court action with the Supreme Court divorce action. In either court, the Court uses the same standard in deciding who will be the custodial parent. In this regard, Courts consider a myriad of factors before deciding what is best for a child, such as the child's relationship with the parents, which parent has the superior ability to provide for the child's physical, psychological , educational, and emotional needs, and a potential history of abuse, arrest, or neglect.
If you go to a custody trial or fact-finding, and if you disagree with a lower court’s decision and are sure that the lower court made a legal error you can appeal your child custody case to a higher court. But in my opinion and experience the Appellate Courts do not customarily reverse trial court decisions since a trial court has the firsthand knowledge of the witnesses, the parties, and the proceedings.
Despite a nonbiased standard of best interests, fathers’ rights have been challenging as they have often faced bias as Courts used to assume somehow that mothers were better caregivers to children, and fathers were better financial providers. This has now changed dramatically and Fathers who sue for custody now stand a very good chance of obtaining custody if they can show that it is in furtherance of the best interests of the children that they be appointed the custodial parent. In many cases, the court looks at the bond that is established between the Father and child, and the nurturing of the child, in order to determine where the child should live. As such, if you are looking to secure custody make sure you have spent sufficient time and energy on the child so that you have established a good bond that would further the child’s best interests.
Many times, the Father might face false allegations of child abuse or neglect. Watch out for these allegations as a child can be coached by either parent to say things about the other parent. The Courts are very wary of such conduct and see it with a jaundiced eye. If a parent continues to make such false allegations, they are sometimes deemed “per se unfit” because in doing so they are not able to foster a good relationship between the child and the noncustodial parent. Another thing to do is join father rights groups who will share with you what they have gone through and what has helped them in their custody case.
To conclude, the Courts these days favor involvement of both parents in the lives of the children, as it should b. But if you feel you are being cut out from the life of your child seek a top New York divorce lawyer who can assist you in Court to secure your rights as a parent. It is key to have a lawyer help you navigate as child custody matter often involve day to day decisions that can impact your case. I hope this helps you in assessing what to do if you are a Father who is trying to secure legal or physical custody. This article is not deemed legal advice and is solely for informational purposes. Thank you.
By Lisa Beth Older
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  ); 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  )…..”
Article by New York Divorce Lawyer Lisa Beth Older
Geographical Relocation Cases involving Child Custody
April 29, 2023
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.