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	Long Island Divorce, Custody, and Family Law Attorneys

In order to provide our clients with the best legal services, the Law Offices of Russell I. Marnell, P.C. keeps abreast of all developments in the areas of divorce, custody, family and personal injury law. This information is provided as a courtesy to the friends and clients of the Law Offices of Russell I. Marnell, P.C.

News Bulletin - April 2008

Child Support Ruling

In a recent case, The New York State Court of Appeals ruled that a child support Order issued in another state cannot be modified in New York.

Background

A couple in Connecticut obtained a judgment of divorce that included provisions for the support of the couples’ three children. In Connecticut the age of majority is 18, i.e. child support would end for a child at the age of 18. Subsequent to the divorce, the mother moved to New York with the three children. When her oldest child turned 18 and child support ended, she petitioned the New York court for a new order of support and was awarded additional child support by a lower court.

Conclusion

The Court of Appeals reversed the decision, determining that not only had the Order issued in Connecticut been fulfilled and therefore could not be modified, but also that the New York courts had no jurisdiction in the matter.

News Bulletin - April 2007

Divorce Ruling on Hold for No-Fault bill

New York is the only state in the nation without a "no-fault" divorce law, in which a divorce can be granted if one party declares the marriage has broken down. Currently in New York, one party must blame the other on certain "fault" grounds, or else both parties must agree to a complicated separation agreement and live apart for at least one year. Fault trials significantly increase the cost, work, delay and trauma of divorces.

On April 16 in an unprecedented action, Judge Robert A. Ross refused to rule on a divorce trial saying that he is waiting for New York State to pass the "no-fault" bill. "I will hold my decision in abeyance for a reasonable time and retain jurisdiction, giving the Legislature the opportunity to consider, debate and act upon pending legislation, with all due speed," Justice Ross wrote in his decision.

The case involves a man seeking a divorce from his wife based on "constructive abandonment," or the refusal of one spouse to have sex with the other for at least a year. This couple would be granted a judgment of divorce in 49 other states.

News Bulletin - July 2006

New York Judges Can Now Order Parents To Attend Classes Designed to Ease Divorce Trauma on Children

Judges in New York State will have the authority to mandate parents involved in custody or visitation disputes to attend certified parent education programs, following a new court rule issued today. The programs, designed to give parents practical tools to reduce the stress of family break-up on their children and protect them from the negative effects of parental conflict, have been available for several years, but until now, judges have only been able to make referrals, not order participation. As a result, compliance with these program referrals has been lower than optimal.

The new rule, which goes into effect immediately, was adopted by the Administrative Board of the Courts and promulgated by Chief Administrative Judge Jonathan Lippman.

“Under the leadership of Chief Judge Judith Kaye, the benefits of parent education programs have been well established in New York,” said Judge Lippman. “They help reduce parental conflict and ease the trauma of family break-up on youngsters. However, without the authority to mandate participation in these valuable programs, judges are finding that litigants are not complying with their referrals. This new court rule will give teeth to a judge’s order, which ultimately serves the best interests of the children and families involved.”

In New York, there are 53 parent education programs certified by the court system operating in 47 counties. They provide information to divorcing, separating and never married parents about the impact of parental conflict on children, how children experience family change, and ways in which parents can help their children manage the family reorganization. Sensitivity is shown to domestic violence concerns, and a parent whose safety would be compromised by attending can opt out.

The court system’s statewide Parent Education and Awareness Program is chaired by Supreme Court Justice Evelyn Frazee of the Seventh Judicial District. Susan L. Pollet serves as the program’s counsel and director. More information on court-certified parent education programs in New York can be obtained from the website www.nycourts.gov/ip/parent-ed.

News Bulletin - October 2004

Father Awarded Custody When Wife Petitions to Relocate with Children

A father was awarded physical custody of his two children after the mother failed to prove relocating would be in the best interests of the children. The judgment of divorce had granted the parties joint legal custody with the mother being awarded physical custody and the father having mid-week overnight visitation with the children. The mother was living with the children and her new husband in Nassau County. When her husband obtained a job in Albany, she filed an application requesting that mid-week visitation by the father be eliminated. The court appointed a forensic evaluator and law guardian to determine the best interests of the children. The mother made it clear to the forensic evaluator that she would be relocating with or without her children. Based on interviews with the children, who expressed their desire to remain with their father, and the law guardian recommendation that strong consideration be given to awarding physical custody to the father, the court not only denied the mother's request to modify the father's visitation, but transferred physical custody of the children to their father.

Parents Found Educationally Negligent for Child's Unexcused School Absenses

Based on a complaint filed by the Nassau County Department of Social Services, a court found that the parents of a 13-year-old girl were educationally negligent in allowing their daughter to be absent in excess of 150 days during one school year without a valid excuse. The girl, who had always been below grade level in reading throughout her school years, was able to pass her classes and be promoted year after year. However, she failed several subjects in 6th and 7th grades and had to attend summer school before being promoted to 8th grade. Beginning with October of 8th grade the girl began her frequent unexplained absences from school.

The school contacted the girl's parents in an attempt to determine why the girl was not attending school. The mother claimed that her daughter was being mistreated by both teachers and students alike due to her learning disabilities, although she had never before made any type of accusation or complaint against the school. The father was unresponsive to the school's inquiries. In December the girl began seeing a psychiatrist who diagnosed her with an anxiety disorder and he recommended that the parents transfer her to another school. Instead of following through with finding another school, the parents just allowed the absences to continue through the end of the school year, after which the Department of Social Services filed their complaint. Upon facing judicial intervention, the parents began to ensure the daughter's attendance in school the following school year. Nonetheless, the court determined that the year-long absences from school were emotionally harmful to the girl and made an affirmative finding against the parents.

News Bulletin - August 2004

Common Law Marriage Not
Recognized in New York

A woman claiming to have had a "common law" marriage established in Pennsylvania filed a Summons and Complaint for a divorce in New York. The man asserted that the requirements of a common law marriage were never met during the entirety of their 6-year relationship. The "wife" stated the couple had lived together for the past six years, that they introduced themselves to others as husband and wife, and that the "husband" gave the "wife" credit cards to use by signing the surname of the "husband." Common law marriage is recognized in New York only if the statutory requirements of the jurisdiction in which it was entered into are met. The burden to prove a "marriage" was created absent a civil or religious ceremony is very heavy. Some indications that a "marriage" was entered into would be establishing joint bank accounts, credit cards, tax returns, life insurance policies naming the other as beneficiary, etc. A residence that could be deemed a marital home would also be an indication that a "marriage" was understood by both parties to have been created. In this case, the court held that the woman was unable to support her assertion that the couple was "married" and dismissed her complaint.

Dog Bite Liability

A court has tried to establish guidelines for when a dog owner can be held responsible for the vicious behavior of his pet. This stems from a case in which a 12-year-old boy was bitten on the face by a dog whose home he was visiting. The owners usually kept the dog behind a gate when guests would visit in order to prevent his excessive barking. However, the dog did not seem to act in an aggressive or threatening manner. This time, the owner suggested that the boy let the dog get acquainted with him by sniffing his hand while the owner restrained the dog. Without any provocation, the dog lunged at the boy and bit him on the face.

In general, dog's owners can be held responsible for their dog's vicious propensities when it has been established that the owner knew or should have known that the dog poses a threat to people, i.e. growling or baring its teeth. The court held that in this case, the owners were not "on notice" that their dog was a threat in that his only "crime" prior to the attack was to bark excessively at visitors to his home.

News Bulletin - April 2004

Appellate Court Permits Adoption by Lesbian Couple

A State Appellate Court has approved the adoption of a 5-year-old Cambodian girl by a lesbian couple in Rochester, New York. Although no one had opposed the adoption petition submitted by the couple, a family court judge dismissed it on the ground that they did not comply with a domestic relations law that says only an unmarried adult or a husband and his wife may adopt a child. The couple have lived together for 22 years, have registered as domestic partners and participated in a "commitment ceremony" recognized by the Episcopal Church. They had previously adopted another child in 1996. The Appellate Court noted that the domestic relations law "neither expressly prohibits petitioners, as an unmarried couple from adopting the child jointly...nor expressly permits them to do so" and reversed the family court decision in the best interests of the child, as her first adoptive parents returned her to the adoption agency.

DNA Paternity Testing

A woman and her 11-month-old son were run down and killed by an allegedly drug-impaired driver. The father, as administrator of the estate of the child and his mother, has sued the driver for wrongful death. However, the grandmother of the baby has challenged the paternity of the father alleging that he abandoned the child by failing to support him. In order for the father to sue the driver, it must be determined that he is the rightful heir to the child's estate. The parties have agreed to a DNA test to establish paternity and to be bound by the results. Also at issue is the timing of the deaths of the mother and child. If the mother died first, then the child's share of the estate will be larger. If the child died first, then the grandmother's share of the estate will be larger.

News Bulletin - February 2004

Out-of-State Divorce Issue

A woman who obtained a no-fault divorce in Vermont was barred from receiving equitable distribution of New York marital property valued at more than $186,000.00. The couple was married in 1959 and had eight children. The wife and children moved out in 1982 when the wife commenced a divorce action alleging cruel and inhuman treatment. The case was discontinued in 1986 for failure of proof. The wife moved to Vermont in 1993 and brought a divorce action there under the state's no-fault statute. The husband appeared in court in the Vermont action as the wife's attorney erroneously told the court that the only issue was the divorce because all of the couple's assets were in New York. The wife was granted the divorce. However, in 1995, the wife commenced an equitable distribution action in New York and was awarded $186,670.00. The Court of Appeals reversed the decision stating that even though the wife's attorney in the divorce action wrongly assumed Vermont didn't have jurisdiction to distribute the marital property, the Vermont court could and should have done so.

Psychologist Notes Are Not Discoverable in a Custody Dispute

In a highly contested divorce/custody matter, a Brooklyn judge ruled that a court-appointed psychologist did not have to submit his notes of interviews with a couple's children.

The wife contends that the forensic evaluator, who recommended joint custody, based his report on insufficient time spent with the couple's two children. However, the forensic report included a 58-page appendix which included direct quotes and statements from the interviews with the parties and their children.

The court based is denial of the application on the fact that forensic reports and law guardian recommendations do not determine custody. Rather, the Court uses the reports and recommendations as a factor in its determination of custody. A report is subject to cross examination by both parties and the Court makes the final decision based on all the evidence.

Divorce and Custody Law Firm - Law Offices of Russell I. Marnell, P.C.

Attorneys and lawyers concentrating in divorce, custody, paternity, child support, and all other family law
serving New York, Long Island, Queens, Nassau County, and Suffolk County.

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Long Island Divorce, Custody, and Family Law Attorneys