New York Divorce Report - New York's Divorce and Family Law Blog

In a highly unusual move, a judge ordered a mother jailed for interfering with husband’s visitation with his children.

In Lauren R. v Ted R. Justice Robert Ross ordered to the mother to report to jail for repeatedly violating the terms of the court orders regarding the father’s parenting time. The mother’s imprisonment coincides with the father’s scheduled visitation with the children.

The Court’s opinion details instance after instance of the mothers deliberate and willful attempts to alienate the children from the father, including false reports of child abuse, bad-mouthing the father in the presence of the children, and deliberately scheduling theater tickets, family events and social activities for the girls during the father’s visitation.

The New York Post reported that as a result of the mother’s efforts the children now hate their father. "They tell me I'm strictly their biological father," Ted Rubin, the father said, "and their stepfather is their real father."

In the past, courts have ordered a change of custody when one parent interferes with the other’s parental rights. In this case, the mother apparently succeeded in destroying the father- daughter relationship. In doing so the mother violated repeated court orders regarding visitation. The mother has to be penalized in a way that she is forced to learn that Court orders have teeth and can be enforced. Jail time for her contempt of court may be the only punishment she understands.

On the other hand, the mother’s imprisonment is not going to endear the father to his daughters. It seems inevitable that the girls will continue to blame the father for putting the mother in jail.

New York’s highest court, the Court of Appeals, granted a non-adoptive or biological parent visitation with her former same sex partners’ child. In a very narrow ruling, the Court in the case Debra H. v. Janice R., held that only biological or adoptive parents can seek visitation or custody of children.

The parties, Debra H. and Janice R., entered into a Vermont civil union in 2003. A month later, Janice R., who was artificially inseminated, gave birth to M.R. Janice denied Debra’s requests to adopt M.R. and their relationship soured. When Janice refused Debra’s efforts to have visitation with M.R., Debra commenced an action seeking visitation.

Applying New York law established in the case Alison D. v. Virginia M., the Court declined to extend parental rights to persons who are not the biological or adoptive parents of the children.

In doing so, the court expressly declined to establish criteria for parenthood in relationships in which one partner or spouse is not the biological parent, saying a more flexible standard could invite claims of parental rights by people who have no business raising them.

Parents could not possibly know when another adult’s level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party. . .

In sum, Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of "disruptive . . . battle[s]" (Jacob, 86 NY2d at 659) over parentage as a prelude to further potential combat over custody and visitation.

Though neither the biological or adoptive parent, Debra H. was granted parental rights because the parties had entered into a civil union. The Vermont civil union law requires that “all the same benefits, protections and responsibilities under law” of marriages be accorded in civil unions.

This decision, in effect, established two sets of standards for children of same-sex couples: one set for those born to couples with a legally recognized relationship, and another for those born to couples without legal recognition. In the absence of a legally cognizable relationship, the party must be either the adoptive or biological parent to acquire parental rights. A non biological or adoptive parent in a civil union or, perhaps, marriage, may acquire rights by virtue of the relationship.

As difficult as divorce is for the parties, it is far more traumatic for the children. When parents divorce, every aspect of the children’s life is up-ended as they watch their parents prepare to go to war against each other.

Children, who should enjoy the unconditional love and affection of both parents, may be drawn into the battle as their loyalty is tested. A showing or expression of affection for one parent could be taken as a sign of betrayal to the other. Children must stagger through an emotional minefield while their parents battle.

Although it seems like common sense, in order to minimize the children’s battle scars, parents need be mindful of the messages they are sending to the children. In particular, they need be cognizant of not only what they are saying, but how they are saying it. Of course, some subjects are just off limits.

The Texas Family Law Blog offers an instructive guide of things not to say to children and I have interposed my thoughts.

1. Do not say “Nothing is going to change.”

Be honest with you children and don’t lie. The truth is probably everything that matters to the children is going to change- the children’s relationship with each of their parents is going to be different. The family will no longer be intact and the children may even have to move and change schools. The economics of the family may change.

Perhaps offer that change offers new opportunities and that change does not have to be bad.

2. Do not talk negatively about the other parent to the children.

Though you may be tempted to vent your frustration to your children, don’t!
If your spouse is unloving, cheap or selfish, in time your kids will figure it out on their own. In the interim, the children should be directed to love and respect both parents

3. Do not blame the divorce on the children or your spouse.

Divorce is never just one person’s fault and it is certainly not the fault of the children.

4. Do not discuss the details of the case with the children.

There is no reason for the children to know the details of the divorce. Court documents should not be left on the kitchen counter for children to pick up and casually read.

5. Do not use the children to spy on your ex.

When the children come back from visiting your ex, don’t interrogate them on what the ex said about you or what they did. They children should not be your messenger or your spies.

6. Do not  argue with your ex in front of the children.

Children have two parents. They are entitled to share the love and affection of both. In the end, parents should not do anything to prevent that from happening.

 

A non-custodial parent is not stripped of his parental authority simply because he is not empowered to make decisions regarding the health, education and welfare of his children ruled an Albany County Family Court judge.

Judge W. Dennis Duggan dismissed a contempt proceeding, against a non-custodial father who had changed the dosage of his fifteen-year-old daughter's medication during his parenting time. The father, a doctor, believed that his daughter’s prescription was inappropriate.

Judge Duggan stated that "While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant."

. . . .Furthermore, he stated that the parent who is caring for a child, whether or not he has sole custody, "has a residual authority to make decisions in the child's best interest that are called for by the immediate circumstances--even if those decisions might overlap with or intrude upon the other parent's 'sole custody' authority.

Rather than unilaterally taking it on himself to change the prescription, the father, with the benefit of hindsight, probably would have been better off, at least demonstrating that he, at least, consulted with the mother and the child’s treating physician before unilaterally acting. That said, over-medicating a child is an exigent circumstance, requiring immediate action.

Regardless, it is still refreshing to see a court recognize that a non custodial parent’s voice and opinions must be heard in connection with important decisions regarding his children’s health and safety. Though not legally empowered to make decisions, the non custodial parent still possesses the duty to protect his children’s best interests.
 

Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself.

In the age of social networking, new rules of apply to couples going through divorce.
The rules, as compiled by Time, can succinctly be boiled to one- “Discretion is the better of valor.”

1. Don’t brag.

Your claims of poverty will ring hollow if you brag on Facebook about your purchases of expensive items or post photographs of lavish vacations.

2. Keep the party off-line

Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

3. Guilt by association.

You are who you hang out with. See Rule No 2.

4. Keep the details of the divorce private.

Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

5. Don’t Defriend.

As Time points out, unless it is high conflict, “Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.”
 

The rights of unmarried fathers of children were in the news with the recent reports about Sarah Palin’s daughter’s break up with her boyfriend. I was, in fact, quoted in one such article that appeared in the New York Daily News.

Like their married counterparts, unwed fathers have the right to custody and visitation of the children. That the parties did not wed does not in any way limit the father’s parental rights As in all cases, the standard of visitation/custody is “best interests of the children.”

The flip side of parenting is the financial responsibilities. The unwed non-custodial parent, whether it be the mother or the father, has the responsibility of paying child support for child. In New York, child support is calculated by applying statutory percentages (17% for one child, 25% for two children, 29% for three children) to the parent’s gross income, with limited deductions.
Click to see the a child support worksheet.
 

Today was Veteran’s Day. From my window on Fifth Avenue, it seemed like the biggest loudest parade in years. In view of this holiday designed to give recognition to those who served this country, it seems appropriate to note a new law which was enacted with little or no fanfare.

While protecting the countries’ interests, members of the military unselfishly make great sacrifices and put all aspects of their life on hold. The tragedy of war would be greatly compounded if permanent changes of custody of children were granted while a child's parent was serving the country and was deployed overseas. Recently, a law was enacted to prevent this unjust result.

As provided in the law's  memorandum:

This new bill prohibits a court from making a permanent change in an existing custody order when a custodial parent has been activated, deployed or temporarily assigned to military service and cannot care for his or her children for that reason. The bill protects the best interests of the child, who will clearly be affected by the absence of the parent, by allowing the court to make temporary modifications to the existing custody order while the military parent is so deployed.

While the Court is empowered to make temporary changes, if necessary, to protected the best interests of the children, when the military deployments ends, there is to be a hearing on the issue of the change in custody. 
 

This is a wise piece of legislation, designed to protect the interests of children and their military parents from opportunistic parents, seeking to permanently change custody only because the other parent deployed in the military.    While a temporary change in custody may be justified during a deployment, the deployment should not  be the sole basis for a permanent change in custody. 

The study enrolled 1,619 children between ages 4 and 6 who were entering Rochester City School District kindergarten classrooms in the fall of 2003. Parents or caregivers were asked if their child had ever been away from a parent for more than a month, and if so, if the separation occurred once, twice, or more than three times. These adults also completed the Parent's Appraisal of Children's Experiences (PACE) survey to measure their children's developmental skills by various observable behaviors (e.g., if the child can cut with scissors; if he or she can tie their shoes") The results were then analyzed to produce four 4-point scales, each measuring different dimensions of healthy. development, including: how well a child learns new tasks; how well he or she uses language to express ideas; how literate he or she is (e.g., can he or she read his own written name"); and the quality of his or her speech (e.g., do other people often have difficulty understanding the child")


Children who have been separated at any point scored significantly worse both on the 4-point scales measuring their ability to learn new tasks and their pre-literacy skills. Of note, their expressive language and speech scores fared better-- they were comparable to those of their non-separated peers

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

. . . .the mother had interfered with the father's visitation rights by demonstrating a "relentless determination . . . to have the father characterized as an abuser" and thereby preclude his access to the child. The court's finding is supported by substantial evidence, including several unfounded reports of abuse made by the mother to the police and to Child Protective Services, as well as the opinion of a psychologist that the young child may have been coached to say that her father had hit her.

UCCJEA and governs virtually every custody proceeding. It is designed to eliminate jurisdictional competition between courts in matters of child custody and the substantial confusion that arose under its predecessor, the UCCJA. Thus, under New York's UCCJEA, a New York court has jurisdiction to modify a child custody determination made by a court of another state if this state is the "home state" of the child. Moreover, the New York court continues to maintain exclusive jurisdiction until a determination is made that neither the child, nor the child and one parent have a significant connection with this state, or where the court determines that neither the child, and neither of the child's parents reside in the state.

Further, a state is considered to be the child's "home state" pursuant to DRL 75-a(7), where the child has been wrongfully removed to another jurisdiction. In such instances, the child's stay outside of New York is considered as nothing more than a period of temporary absence and as part of the six-month period. . . .The fact that a custodial parent flees in the middle of a custody litigation commenced properly in New York simply does not deprive the New York courts of subject matter jurisdiction to issue an order concerning custody, visitation, and related issues.

Here, there is uncontroverted evidence that the parties, mother, father and child were living in New York since January 2005, a period of 19 months prior to the mother's petition for a modification of the initial custody order, and 22 months prior to the father's cross petition for sole custody. Thus, the record establishes that New York has jurisdiction in this custody modification proceeding. Moreover, the mother's flight to Italy cannot deprive New York of continuing jurisdiction in this proceeding so long as the father resides here.

1.Each parent’s reason for either seeking or opposing the relocation;


2.the current state of the relationship between each parent and the child;

3.the impact that the relocation will have on the quality and of the child’s relationship with the non-custodial parent;

4.the emotional, economic and educational effects that the move will have on the child; and

5.the feasibility of maintaining the relationship between the child and non-custodial parent.

A bankruptcy filing does not discharge an obligation to pay child support.   To the contrary, since other debts are discharged, funds that might have been paid toward other debts can be freed up to pay child support.

The Child Support Blog cites the recent case of  former NFL wide receiver André Rison to illustrate this point.  A bankruptcy court  ordered Rison into involuntary bankruptcy so that  $105,000 in child support arrears can be paid.

While some unsecured debts can be wiped out or reduced in a bankruptcy, other obligations, like child support, are "nondischargeable." This means that the bankruptcy filing does not wipe them out or reduce them. These debts must be paid regardless of the bankruptcy.

In fact, the 2005 revisions to the Bankruptcy Code made “domestic  support obligations” like alimony and child support a top priority. In order to obtain a discharge under Chapter 13, the debtor must provide for full payment of priority debts, including arrearages in domestic support obligations and certify that all post-petition domestic support obligations have been met.

Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.

Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems then if they divorce.

            There is probably no easy or correct way to tell your children that you and your spouse are separating or divorcing.  It would be an understatement to say that divorce will have a devastating impact on their emotional and psychological well-being.   But, how parents inform their children and negotiate future parenting responsibilities affect how children will react to the news.

            Dr. Marshall Colt gives parents several common sense tips to addressing the issue with their children:

• It’s best to tell your children together, simply, honestly and directly.
• Don’t go into detail about why or bash your spouse.
• It’s okay to reveal your sadness, while allowing them to also show their feelings.
• If you’re separating and not sure about divorce, don’t make predictions or promises you can’t keep.
• Try to keep things as consistent as possible.

            Going forward, encourage the relationship with the other parent. Though you and your spouse are separating, neither of you are divorcing the children.  Children should be encouraged to maintain their relationship with both parents.   If your spouse is a “bum” let the children find this out for themselves. Do not indoctrinate or impose your views on them. Do not attempt to alienate your children from your spouse. Not only can this have a negative financial impact, it may be you that the children end-up resenting.

Police officers who have to work on Christmas are faced with a double whammy.

Not only do they have to be away from their own families, they inevitably wind up spending time with someone else's.

Lansing Police Chief Dan McDevitt said veteran officers know what to expect when working the holidays -- a spike in domestic calls ranging from violent fights between family members to child custody disputes.

"If they've been around awhile, they know it's a full moon syndrome," he said. "It's going to get crazy."

McDevitt has taught at colleges, universities and police academies in the United States, Europe and the Middle East for both civilian and military law enforcement personnel.

He teaches his students that domestic calls are the worst they'll encounter.

"There's no more dangerous call for a cop," McDevitt said. "They're completely unpredictable. No matter how badly the parties involved have been battling, when you show up, you're the bad guy and they turn on you."

While working one Christmas, McDevitt was called to a homicide in Robbins involving a man who killed his cousin in a fight over a pork chop.

"We arrested the guy and were going to drop him off at the lock up and as I was getting him out of the squad, I said, 'So, was it good?'

"He said, 'What?' I said, 'The pork chop, was it good?' and he goes, 'It was delicious.' It drove me nuts."

Sgt. Keith Hughes of the Portage Police Department was working as a supervisor last Christmas and took some time to go home to watch his children open their gifts.

"I no sooner get there and we get a call of a physical disturbance with a knife involving a father and two sons and one attacked another one with a frying pan," Hughes said.

Sgt. Tim Emmons of the Porter County Sheriff's Department said domestic problems around the holidays are all but inevitable.

"You've got people thrown into family situations that aren't always family-oriented," Emmons said. "People often drink during the holidays or take drugs to try to deal with the stress and that makes things more volatile. People also do it to excess who aren't used to it, and that creates problems, too."

Police calls regarding child custody issues also tend to rise during the holidays, McDevitt said, and are some of the calls that upset him the most.

"It's terrible," McDevitt said. "Don't these people have any idea what this is doing to these kids?"

McDevitt and Emmons both said families often are advised by their attorneys to transfer custody at a neutral location and choose the Police Station, meaning children often spend part of their Christmas there.

Emmons said the custody situations sometimes escalate when police tell them they can't get involved.

"Sometimes the best we can do is take a report and turn it over to the courts," Emmons said. "We often aren't the custody police. If Dad's two hours late returning the kids, Mom thinks we'll make an arrest and, oftentimes, that's just not the case."

As tough as working the holidays can be, McDevitt said he has a simple coping mechanism he stresses to his officers and students when handling domestic calls:

"Treat people like you'd like to have your family treated."

"I also tell them to treat people with some compassion," McDevitt said. "You probably have a nice family to come home to at the end of your shift, which is more than these people have, so try to be compassionate."

If your ex-spouse is supposed to have visitation with the children over Christmas, allow him/her  to see the children. The children are not pawns to be used to seek revenge for past wrongs or slights.. 

In two recently decided cases, custodial parents were penalized for interfering with visitation and attempting to alienate children from the non custodial parents. In one of the two cases, a mother lost custody of her child; in the other case, the mother was found in contempt and risked further consequences if the conduct continues.

In Chase v, Chase,  a mother’s continued false accusations that the father was a pedophile, compelled the Appellate Division reverse a Family Court finding that granted custody to the mother. 

The Appeals Court’s finding that the mother failed to produce the child for visitation, made repeated false and unsubstantiated claims that the father sexually abused the child, and repeatedly disobeyed various court orders warranted a change of custody. As a consequence of the mother’s conduct, the Court granted the father custody of the child.

In another case recently decided by the Suffolk County Family Court (Frank G. v. Carol G.), a mother was found to be in contempt of court for her failure to abide by the visitation provisions incorporated in a judgment of divorce. 

In both cases, the courts were particularly upset by the fact that the mothers, by their own admission, acted as the sole arbiters of what was the best course of conduct for their children.  Both mothers knowingly and intentionally disregarded court orders providing for the fathers’ visitation. 

Both courts reiterated the axiom that interference with the relationship between a child and the non-custodial parent by the custodial parent has said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.

While the holdings of these two cases evidence a judicial hostility to the custodial parent’s attempts to alienate a child from the non-custodial parent, the facts unfortunately show that the non-custodial parent has a long and difficult course to enforce their visitation rights.  

Since requests for a change in custody  are, quite properly, closely scrutinized, a custodial parent accused of interfering with the non custodial parent’s visitation is frequently given gentle slaps on his/her wrists before facing the consequence of being held in contempt or losing custody.

I

Memorial Day is the unofficial beginning of summer. But, from a family law attorney’s perspective, summer began a long time ago.

Some time before they purchase the sun screen, parents need  to make arrangements to plan for their children’s school vacation, summer camp and extended vacations away from home. However when the parents divorce and get to spend only a part of the summer with their kids, things can heat up real fast.

In order to facilitate a peaceful  summer, divorced parents will need to cooperate with each other. Unfortunately, as the temperature rises, so does the acrimony as the parents fight over who will be with the children for the month of July and who will be with the children in August.   If the parents cannot cooperate, rather than having fun under the sun with their children, they will spend the summer in a courtroom with their lawyers and a judge.