Proposed Amendments to Take Guesswork Out of Maintenance Awards

 

maintenance amendments

One major aspect of resolving any divorce is resolving support issues. While child support sometimes becomes complicated, there is a statutory formula that has been in place for decades which governs the calculation of basic child support, as well as contribution to add-ons such as medical expenses, child care and education expenses.

However, the same is not true for maintenance (more widely known as alimony). New York’s Domestic Relations law provides several factors that the Court must consider when determining an award of maintenance, but once these factors are considered, maintenance is largely left up to the discretion of the Court. When the Domestic Relations Law was amended in 2010, a formula was put in place to determine an award of temporary maintenance (i.e. maintenance while the divorce action was pending) but it was made clear that this formula would not be applied when determining post-divorce maintenance and no further guidelines were added to aid in this determination.

Without such a formula, cases in which maintenance is an issue become very hard to resolve, as it is very hard for lawyers to predict with reasonable certainty what a Court would award if the matter went to trial, in terms of both amount and duration of maintenance. Additionally, since temporary maintenance has virtually no bearing on an award of post-divorce maintenance, and there is no “cut-off” point for an award of temporary maintenance, a recipient of a sizeable award of temporary maintenance has no motivation to resolve the matter. In fact, recipients of such an award may be tempted to attempt to prolong the action so they may receive such temporary maintenance for as long as possible.

However, a new bill which was passed by the NY State Senate on June 24, 2015 may put an end to the uncertainty of post-divorce maintenance, as well as the indefinite nature of a temporary maintenance award. Bill number A7645 proposes several amendments to the Domestic Relations Law. The major highlights of the proposed amendment are as follows:

1. The income cap for determining temporary maintenance is reduced from $543,000 to $175,000. The same cap would apply when determining post-divorce maintenance. It will be in the court’s discretion to consider income above this amount when determining temporary maintenance.

2. Two different formulas for determining post-divorce maintenance, not unlike the one for determining temporary maintenance. Which formula is used depends upon whether child support is to be paid, and whether the recipient of such maintenance award is the custodial or non-custodial parent.

3. The Supreme Court has the power to limit the duration of temporary maintenance, and the length of the marriage is one factor that is to be considered when determining such duration.

4. An advisory formula for the duration of post-divorce maintenance would become part of the Domestic Relations Law. It is not required that the Court use this formula, but it is designed to guide the Court in determining duration, and provides ranges to afford the Court more discretion depending upon the circumstances of the case (for example: for a marriage lasting 0-15 years, the duration of maintenance would be 15% -30% of the marriage, or 2.5 – 4.5 years).

For complete details on the proposed bill, as well as to follow the actions taken on this bill, go to http://assembly.state.ny.us/leg/?default_fld=%0D%0A&bn=A7645&term=2015&Summary=Y&Actions=Y&Memo=Y

If this bill passes, it will take a lot of guesswork out of one of the major ancillary issues of a divorce, and I believe it will aid in settling many cases in which maintenance is an issue.

Any updates on the signing of this bill into law will be reported on this blog, so please stay tuned!

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Supreme Court Ruling on Same-Sex Marriage Necessitates Revision of Custody/Visitation Laws

same sex marriage

Several people are rejoicing today as the Supreme Court ruled in favor of same-sex marriages. This was a big, very important, and long overdue step towards equality in the LGBT community.

However, along with this ruling comes some very poignant questions as to how the children of these couples will be treated, and whether the laws regarding rights to children need to be revamped. A few weeks ago I wrote an article on rethinking the presumption of legitimacy. The recent Supreme Court ruling further supports the argument that it is time for a change in how custody rights are determined.

To sum up the current law in a nutshell: when a mother is married at the time of conception and/or birth of the child, it is presumed that the child is legitimate and the person the mother is married to is the father. This presumption is so strong, it could prevent another man from asserting paternity (or the mother claiming another man is the father) and being entitled to a DNA test.

How will this presumption come into play with same sex couples? New York courts have already dealt with the issue of custody, visitation and support in a few cases, but they don’t seem to be consistent and don’t deal with the fact that these rulings contradict the law and controlling precedent, without actually overruling said law.

Specifically, in 2010, two different cases went before the New York Court of Appeals; one pertaining to child support and one pertaining to visitation rights.  In one case, the Court of Appeals ruled that a woman who gave birth while in a committed same-sex relationship was entitled to child support from her former partner. In the other case, the Court of Appeals ruled that the former partner of a woman who had conceived a child by artificial insemination after the parties entered into a civil union was entitled to seek visitation of the child. However, four years later, the Nassau County Family Court ruled in the completely opposite direction and held that the non-biological parent in a same-sex relationship had no standing to seek custody and/or visitation of an almost two year old child despite the fact that the parties made the decision together to conceive the child, that for almost two years the child knew both parties as his parents, and the parties were married three weeks after the child was born.  Less than a year later, Suffolk County Family Court determined that a woman who was joined to her partner by civil union did have standing to seek visitation right to the child conceived by artificial insemination.

The Courts need direction as they try to determine how to handle these cases. An argument could be made that, now that same-sex marriage must be upheld in all fifty states, the presumption of legitimacy should remain in full force and effect, and, as long as the parties were married at the time of conception and/or birth, both parties would have rights to the child in the event of a break-up. However, the Court of Appeals has already ruled that only a “committed relationship” is required to have rights to a child. After all, it certainly does not seem to be in a child’s best interest to deny the non-biological parent rights to a child after being this child’s caretaker for several years simply because the parties were not married at the time of conception or birth. But this leads to further questions and confusion. What is the definition of committed relationship in this situation? How does this ruling apply to heterosexual couples? Would this confer rights to step-parents that don’t formally adopt children? What about heterosexual couples who are not married that conceive a child with donor sperm? What rights do the other biological parent have?

In the 21st century there is no longer any such thing as a “typical” family. Conferring rights to seek custody and visitation of children by using the presumption of legitimacy and DNA testing only would be a miscarriage of justice for many American families, not to mention the children caught in the middle. While these factors are still important, they only complete a small fraction of the puzzle. At some point Courts and Legislature will have to concede that the law needs to be updated, or the inconsistent rulings will continue and children will continue to be ripped from their parental figures. The remedy must include a best interest analysis for the child. Perhaps it is also time to consider that a child can have more than two legal parents. Only time, several appeals and, unfortunately, many broken families will tell.

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Relocation Issues: How Days of Our Lives Got It Wrong

Many of us watch soap operas, dramas centered around medical issues or dramas centered around legal issues, and we wonder how accurate they are and how much research the writers really did before they wrote about the particular issue. If you’ve ever watched these shows with people that actually work in the profession, you’ve most likely seen them get extremely frustrated while watching these shows. This happened to me while I was watching Days of Our Lives a couple of weeks ago, when one of the characters went to a lawyer for advice regarding a custody and relocation issue, one of the most complicated issues in Family Law.

For those of you that do not watch the show, I will give a very brief rundown of what happened: Brady and Teresa found out they had a son together. Brady and Teresa are not in a relationship. Brady is in love with Melanie. Teresa informed Melanie that if she did not get out of town, she will take her son and move to California. Brady went to a lawyer to find out if he could stop Teresa from doing this. The lawyer (who admitted this was not his area of expertise) informed him that given Brady’s history of drug abuse, his grandfather’s history of illegal activities and past actions towards Teresa’s mother, and notwithstanding Teresa’s history of drug abuse and her attempt to kill Brady’s Father (which was not on record), it was very unlikely a judge would keep Teresa from leaving town with the baby. Based upon this very wrong advice, Melanie left town and Brady, so Teresa would stay in town with the baby.

First, relocation is NEVER an easy issue to determine. A court is required to balance the desires of the custodial parent to move for whatever reason he or she presents, against the desires of the non-custodial parent to continue to be close with their child, parent them on a regular basis and be involved in their life. It is the parent requesting the move that has the burden of presenting the Court with evidence that this move is in the child’s best interests NOTWITHSTANDING the fact that the move would prevent the non-custodial parent from seeing the child on a regular basis. There are several factors that a Court considers when making this determination pursuant to the Court of Appeals case Tropea v. Tropea 87 NY2d (1996). These factors are included but not limited to:

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

2. The quality of the relationship between the child and the custodial and noncustodial parent;

3. The impact of the move on the quantity and quality of future contact with the noncustodial parent;

4. The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move;

5. The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

The first thing the court investigates is why the custodial parent wants to move, and why the other parent is opposing the move. There are only a few scenarios that are considered “valid” reasons for wanting to relocate away from the non-custodial parent. These are included but not limited to: financial reasons (such as being unable to support oneself in the current location and having better economic opportunities in the place where the parent wants to relocate), more emotional support from friends and family, and remarriage where the spouse is established in a different state/jurisdiction.

In the above scenario, Teresa’s true motive for wanting to move is because she does not want Brady with another woman. This would immediately be rejected by a Court. Even if this were not revealed, and she informed the Court that she wanted to move so she could have her parents’ help in raising the child, this motive would most likely not be enough to grant permission to move. First, Teresa has a large extended family surrounding her where she currently lives. The only family Teresa has in California are her parents. Any good lawyer would bring out the fact that Teresa’s relationship with her parents is not a close one and Teresa was all but estranged from her parents until this child was discovered, raising a question about the environment in which the baby would be raised. Moreover, the child would miss out on being surrounded by extended family who love him, on both Teresa’s and Brady’s side, which is contrary to his best interests.

As for financial reasons, Brady and his family are worth millions, and Brady has offered to support both Teresa and the baby and pay all of their living expenses. Moreover, Teresa has a steady, full time job (most likely with benefits) where she currently lives, and has no job waiting for her in California. Thus, she cannot claim that she does not have the means to stay and has better economic opportunities in California.

The move would not provide the child with an intact family (i.e. Teresa is not moving in order to marry someone established in California). Thus, the move would in no way enhance Teresa’s or the child’s life economically or emotionally (educationally is not yet a factor as the child is an infant). In fact, given Teresa’s relationship with her parents and her past troubles with the law when living in California, there is a good chance both Teresa and the child’s quality of life would be downgraded if the move were permitted!

As for prong number 2, 3 and 4, a Court is much more likely to permit a move when the non-custodial parent is not a big part of the child’s life and/or there is a reasonable proposal for alternative parenting time to make up for the fact that the parent and child can no longer be together on a regular basis. This usual includes the non-custodial parent having the child for all school breaks, vacations and the entire summer.

In this case, the child just came into the parents’ life about a week ago, and neither parent has even had an opportunity to bond with the child. It cannot be said that the quality of one parent’s relationship with the child is better than the other’s. In fact, the impact this move would have would be even more detrimental to the child given that the child has not yet had an opportunity to bond with Brady, and this would make it exceedingly more difficult for him to do so. Of course, no proposal for alternative parenting time or ways to keep in contact were even discussed.

As complicated as relocation cases tend to be, it seems this one is as close to a guarantee as one could get that relocation would not be permitted. The facts Brady was told would be considered are wholly irrelevant to the issue of relocation, and are not even that relevant to the issue of custody (an entirely different analysis).

The number one lesson to take away from this (other than “don’t take legal advice from TV shows) is, when it comes to an issue as intricate as relocation, it is imperative to have a lawyer that has extensive experience in this area of law. The second this lawyer told Brady that this is not his area of law, Brady should have found an experienced and competent family lawyer to advise him.

NOTE: This blog is a professional blog concerning issues relating to Matrimonial and Family Law. Please limit all comments to the legal issues discussed.

Rachel S. Silberstein is a Matrimonial and Family lawyer in New York City.  To learn more, please visit her website at www.rssfamilylaw.com

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What the Palm Beach Circumcision Case is really about

Circumcision Consent

Palm Beach Circumcision

http://www.sun-sentinel.com/local/palm-beach/fl-circumcision-mother-court-hearing-20150522-story.html#page=1

By now we’ve all seen this story in the news, and a lot of you may have even been outraged by it.  The Palm Beach Circumcision Case came to an end yesterday when the mother of the four and a half year old boy tearfully signed the consent form to have her son undergo a circumcision in order to get herself out of jail, as the Judge had made it clear she would stay in jail until she signed these forms.  Anti-circumcision activists protested outside.  People argued that this is not the Court’s/government’s decision, claiming that this woman’s constitutional rights were being infringed upon.

It’s easy to get caught up in the media outrage when it’s a controversial, hot topic that incites passion.  But what is this really about?  Why would a judge go so far as to throw a mother in jail for refusing to consent to have her son circumcised, especially at the age of four-and-a-half years old??

A careful examination of the facts shows that this is a simple case of a mother that violated a custody/parenting plan Order, and a Court holding the Mother in contempt for violation of said Order.  The crucial fact that so many people seem to gloss over is that this Mother agreed to the circumcision as part of the finalized parenting plan in 2012.  She signed her name to a legally binding document, stating that she would share joint custody of this child with his father, and that they would have this child circumcised.  This legally binding agreement was then incorporated into a court order, meaning that if she violated it, and the violation was found to be wilful, she could be held in contempt, which could include being jailed until the violation is cured.

For whatever reason, the mother then changed her mind about this circumcision.  But one cannot simply “change their mind” about something when it’s made into a court order.  What really got her into trouble though, is how she handled this decision.  I don’t know on what this decision was based.  Maybe she had a medical reason that was unknown at the time she signed the document.  Maybe she signed the original document under duress.  Whatever the reason, her solution got her into major trouble and led her to that moment in the photo above.  Rather than appealing to the Court for help, she took the child and hid out, violating not only the portion of the court order that calls for the child to be circumcised, but the portion that gives the father parenting time with the child.

This is a simple contempt/enforcement case.  Would people be so outraged if we took out the part about circumcision and just reported the fact that she signed a parenting plan and then absconded with the child, keeping him from his father, and violating the Court’s order?  I would wager that people would agree the Court did the right thing.  Why is it different when you add in the fact about circumcision?  It shouldn’t be, but circumcision is one of those topics that incites controversy, even to the point of organized protest.

However, the fact is that if a court were to consider this fact, our judicial system would be even more broken than it already is. The second a contract is executed, there is no going back.  Once the contract becomes a Court Order, there are even more significant legal consequences if it is violated.  At no point in this case have I read that the mother asked for modification or claimed that she signed the original contract under duress.  If she wanted half a chance in stopping the circumcision, she should have filed a petition explaining what the change in circumstance was and why it was in the child’s best interest to modify this provision of the agreement/order.  Instead she took matters into her own hands and then cried victim and moral outrage when the Court enforced the contract that she willingly signed.

The Court didn’t make this decision for her, infringing upon her constitutional rights to parent.  She made the decision three years ago, with the child’s father, to circumcise the child, and then put the agreement in writing.  The Court simply upheld the agreement and Order, as it is charged with doing in every case when a Court Order is wilfully violated.  The only person to blame for the way this ultimately ended is the Mother of this child, who violated a contract she signed and kidnapped her own son to keep him from his father.

Rachel S. Silberstein is a Matrimonial and Family lawyer in New York City.  To learn more, please visit her website at www.rssfamilylaw.com

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About the Author and this Blog

I am a matrimonial and family law attorney with offices in downtown Manhattan.  I have been exclusively handling matters pertaining matrimonial and family law for almost ten years.  The purpose of this blog is to discuss  issues and changes in the law (or laws that are due for a change) relevant to family law.  Such topics are included but not limited to Divorce, Custody, Child Support, Distribution of Assets, Paternity, Spousal Support and Same-Sex Divorce.

We welcome healthy debates and all opinions.  However, any comments that are discriminatory, defamatory or otherwise offensive in any way will  be deleted.  If there is a topic that you would like me to write about, please feel free to contact me and let me know.  Thank you for reading!

– Rachel S. Silberstein, Esq.

Please visit my website at www.rssfamilylaw.com to learn more .

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The Presumption of Legitimacy and Legal Rights to Children- time to revise the law

Paternity cases are usually pretty straight forward.  Either the mother of a child petitions the court to establish paternity of a purported father of her child, or the father petitions the court to establish his rights as a parent.  A DNA test is done, the father is either declared to be a match or not to be a match, and said test is usually determinative of the case.

However, when the mother of the child was married at the time the child was conceived and/or born, paternity cases become a little more complicated.  There is a presumption that goes into effect, known as the presumption of legitimacy.  To put it simply, it is presumed that the man married to the mother at the time of the conception and/or birth of the child is the father of the child.  Thus, unless and until this presumption is rebutted, no further inquiry as to the child’s paternity would be permitted.

This presumption was written into law well before the age of genetic testing, which can answer the question of paternity with 99.9% accuracy.  The reason for this presumption was because it was deemed to be in the child’s best interest to be considered legitimate.  Additionally, when there was no other potential father for the child, it prevented the presumed father from claiming he was not responsible for the child, thus leaving said child without a father at all.

However, in practice, the presumption can actually have the opposite effect than that of it’s intended purpose and hinder the best interests of the child involved.  For instance, I have seen mothers attempt to use the presumption to keep the fathers from asserting the rights to their children, even after years of the father being intricately involved in the child’s care, and when the mother’s husband had no involvement in the child’s life whatsoever.  I have seen fathers attempt to avoid having to submit to a DNA test and take responsibility for their child simply because the mother was married to someone else; notwithstanding the fact that the mother and husband were separated at the time, and possibly living in two separate states.

In both scenarios, it is clear that the child’s best interest is not served by hiding behind the presumption of legitimacy.  While it is true that the presumption is a rebuttable one, it seems that most magistrates have no idea what it takes to actually rebut it.  Some require proof that the mother and husband had no access to each other at the time of conception, a nearly impossible task unless mother and husband are willing to testify.  Some require that the presumption be overcome before genetic testing is ordered, despite the fact that genetic testing can be used as evidence to overcome the presumption.

The fact is that the law states that upon request, genetic testing should be ordered unless it is determined that such genetic testing is not in the best interests of the child as a result of the presumption of paternity.  This, in and of itself, is confusing and no one quite knows how to apply this.

It seems clear that the presumption needs to be revamped, if not completely discarded.  There is a principal in paternity cases called equitable estoppel.  That is, if a man has held himself out to be the father of a child, bonded with said child and supported said child, he will be estopped from asserting a claim that he is not the father, as this would be detrimental to the child.  The man would not be entitled to genetic testing in this case, and would be deemed the legal, responsible father to this child regardless of biology.  It seems, at this point in time, that this principal should apply equally to mothers who are attempting to deny fathers legal rights to their children simply because they were married to someone else at the time of the child’s conception and/or birth.  Namely, if a man has held himself out to be the father of a child, has built a relationship with this child and supported this child, the mother and Court should be estopped from denying this man legal rights to the child.  It seems that this principal would serve a child’s best interests more than the presumption of legitimacy does.

Additionally, in cases where a husband has no relationship with the child and another man is attempting to assert his rights to the child, what is the harm of automatically granting this man genetic testing? If the test is positive, this child now has a father who wants to build a relationship with them and be legally responsible for them. If it is negative, the mother’s husband would still be held legally responsible and the child is no worse off than before the test was done.

Maybe both the presumption and genetic testing need to be replaced with  a strict best interest analysis.  In this day and age families come in all different shapes and sizes, where one or both parents are not genetically related to a child.  There are same-sex couples, infertile couples that use donors, step-parents that never get around to formally adopting a child.  In these cases, where there is no biological second parent that is involved, wouldn’t it better serve the child to look at the situation and determine if it is in their best interests for this person to be given legal parental rights and responsibilities, rather than blanketly denying said rights after acting as a parent to this child for years, solely based upon the fact that they do not share the same DNA, or that the mother was married to someone else at the time of conception? This approach could have pitfalls and implications that I have not considered and would have to be carefully thought out before it was put into effect.  One thing seems clear though: the law regarding paternity and legal rights to children is severely outdated, and needs to be reworked to ensure it is serving the best interests of children, rather than hindering it.

Rachel S. Silberstein is a Matrimonial and Family lawyer in New York City.  To learn more, please visit her website at www.rssfamilylaw.com

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