It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

In child custody and visitation cases there are several factors the courts will use to determine what is in "the best interests of the child."  The parties are the primary source of information with regard to the weight the judge will give to each of these factors.  However, due to the highly charged nature, and thus, skewed view of the facts, the courts do not rely solely on the parties' account of details. Rather, the courts employ other entities and professionals to help them in this most delicate decision.  So, for instance, to gain insight into the home environment of each of the parties, the courts will employ the Dept. of Probation, or its equivalent, to conduct a homestudy.  A homestudy consists of an agency worker going out to each party's home to check for safety, habitability and adequacy of the home.  The worker will check their sleeping space, whether safe conditions exist, if there is adequate food, etc.  The worker will also interview each occupant who lives in the home in addition to the parent in an effort to get an insightful picture of how the child lives or would live if he or she were ordered to live or visit with that parent.

         Another major tool used  in child custody litigation is the forensics evaluation.  Forensics is the utilization of a psychologist, psychiatrist or social worker to make an assessment and give testimony with respect to custody and visitation.  The court will first determine if forensics is needed, which will be based on the particular circumstances of the case.  This is crucial because without an expert's opinion, the court can make a determination about custody and visitation on information provided mainly by the parties, and other sources that do not supplant the parties' accounts accurately.  Although the authority to order forensics examination is granted by Section 251 of the Family Court Act, caselaw indicates that that decision is within the sound discretion of the court.  For example, where the court believes that there is no issue with respect to the emotional health or mental state of either parent or the child, it may rely on other evidence provided by the parties and their witnesses to make its ruling.  So although either party may request that forensics be conducted, if the court is not convinced that this evidence is necessary in helping it to reach a custody or visitation determination,  they may deny such a request. On the other hand, it has been held to be "reversible error" by the appellate courts,  where the court refuses to order forensics where custody was changed/modified without a hearing, where there were patent issues of abuse, neglect, domestic violence or other  psychological and emotional concerns, where there was parental alienation or where the child resists visitation (without justification).  In any of these circumstances either party, by his or her attorney and the attorney for the child (the law guardian), may request forensics either orally or formally (by motion).  The latter method is preferred. This way, if the court still denies the request there is a record for appeal.

           Even in cases where an expert conducts an evaluation, his or her recommendation is not determinative of who will be awarded custody or if visitation will be granted.  The opinion of the expert is, in essence, but one factor of many to consider in the court's decision as to what is in the best interest of the child.  The court will typically use the information gathered by the expert to help it to get a more comprehensive picture of all of the circumstances in the case, and not to allow the expert to make the ultimate decision. The evaluation typically involves an interview with each party, an interview with the child, an observation of the child with each parent, contacting the school and physicians, along with treating mental health experts, family, friends and other relevant players in the child's life.  The expert will also administer psychological testing to either or both parents and, in some instances, the child. Furthermore, some will make home visits and other types of visits deemed necessary to make a more complete assessment.  The expert chosen to conduct the evaluation will be selected based on issues or concerns raised by either parent and/or the attorney for the child.  For instance, in a case where the attorney for the child believes that there are some alienation issues, a psychologist may be employed to do the evaluation.  If the custody or visitation case is more of just a "fit vs. fit" test, a social worker may be suitable to conduct the evaluation.

         The evaluation may take up to several weeks and, in some cases, several months to complete for a number of reasons. The interviews may need several sessions to accommodate all parties' schedules; the testing may need time to conduct and complete; and interviewing the collateral contacts ( i.e. family, friends, etc.) may be time consuming.  In fact, it is not uncommon for more than one evaluation to be conducted if the custody litigation takes several years, which does occasionally occur.  It is because of this reason that some courts wish to forgo forensics, with their rationale being that prolonging child custody or visitation cases only serves to perpetuate conflict within families.  However, some courts merely want to expedite the process in an effort to address more protracted cases.

          In any case, where either parent is insistent that some serious concerns be uncovered, confirmed, or explored it is advisable to implore the court to have forensics done.  Although the costs for these evaluations may be borne by either or both parties, it can be a deal closer for the parent who really wants to highlight the inability or instability of the other parent to be a nurturing or loving parent.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

The Court of Appeals recently ruled that the proper valuation date for all marital property is the date the summons for divorce is filed.  An older discontinued action shall not serve as the valuation date.
In Mesholam v Mesholam, 6/27/2008 NYLJ 30, (col. 1) the Court of Appeals, in an Opinion by Judge Pigott, held that the commencement of a prior, discontinued divorce action may not serve as the valuation date for marital property for purposes of equitable distribution in a later divorce action. Courts must use the commencement date of the later, successful action as the earliest valuation date for marital property. However, the circumstances surrounding the commencement of the earlier action can and should be considered as a factor by the trial court, among other relevant factors, as it attempts to calibrate the ultimate equitable distribution of marital economic partnership property acquired after the start of such an action by either spouse.
The parties were married in 1969. The wife commenced an action for divorce in 1994. The husband answered, but did not counterclaim for divorce. Five years later the Supreme Court granted the wife's motion to discontinue the action. Almost immediately, the husband commenced this action for divorce. After finding that the husband was entitled to a divorce Supreme Court held that the husband's pension must be valued as of the commencement date of the present action, rather than the commencement date of the wife's 1994 action, relying on Domestic Relations Law §236(B)(4)(b). Supreme Court determined that the marital property, including the marital portion of the pension, should be divided equally between the parties. The Appellate Division held Supreme Court improvidently exercised its discretion in valuing the pension as of the commencement date of the present action. It concluded that the 'appropriate valuation date was the commencement date of the 1994 action' because there was 'no evidence that the parties reconciled and continued to receive the benefits of the marital relationship after the prior action was commenced' (25 AD3d 670, 671 [2006]).
The Court of Appeals modified the order of the Appellate Division and remitted the matter to Supreme Court for further proceedings. It pointed out that Domestic Relations Law 236(B)(1)(c) defines marital property as all property acquired 'during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.' Thus, in the absence of a separation agreement, the commencement date of a matrimonial action demarcates 'the termination point for the further accrual of marital property ' (citing Anglin v. Anglin, 80 NY2d 553, 556 [1992]). The Court held that the valuation date must be between 'the date of commencement of the action and the date of trial ' (Domestic Relations Law 236 [B][4][b]). In determining whether the commencement of a particular 'matrimonial action' terminates the accrual of marital property, it looked to 'the overall legislative intent of the Domestic Relations Law and the particular application of the equitable distribution regime. In Anglin, the Court held that the commencement of a separation action does not cut off the accrual of marital property because such an action does not, ipso facto, terminate the marital economic partnership. Rather, the economic partnership should be considered dissolved when a matrimonial action is commenced which seeks divorce, or the dissolution, annulment or declaration of the nullity of a marriage, i.e., an action in which equitable distribution is available. It observed that this rule provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. For similar reasons, it concluded that the value of marital property generally should not be determined by the commencement of an action for divorce that does not ultimately culminate in divorce. Equitable distribution is available 'in an action wherein all or part of the relief granted is divorce. Where there is no divorce, there can be no equitable distribution. Consequently, permitting the commencement date of the prior, unsuccessful divorce action to govern the valuation date of marital property for the purposes of a later, successful action in which equitable distribution is available would be inconsistent with the statutory scheme. The Court found that, as Supreme Court concluded, the pension benefits were marital property to the extent that they were earned prior to the commencement of the present divorce action. As a result, the marital portion of the pension could not be valued at any time earlier than the commencement date.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

Supreme Court, Appellate Division, Second Department, New York.

Dawn HIGGINS, appellant,

v.

Davis HIGGINS, respondent.

Apr. 15, 2008

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from (1) stated portions of a judgment of divorce of the Supreme Court, Orange County (Horowitz, J .), dated July 28, 2006, which, after a nonjury trial, inter alia, awarded the defendant 30% of her enhanced earnings, and failed to direct the sale of the marital residence, and (2) stated portions of findings of facts and conclusions of law of the same court also dated July 28, 2006.

ORDERED that the appeal from the findings of fact and conclusions of law is dismissed, as findings of fact and conclusions of law are not separately appealable (see Matter of County of Westchester v. O'Neill, 191 A.D.2d 556); and it is further,

ORDERED that the judgment is modified, on the law, the facts, and in the exercise of discretion, by deleting the provisions thereof (1) awarding the defendant a 30% credit for his equitable share of the plaintiff's enhanced earnings resulting from her Bachelor's Degree and Master's Degree valued at $306,000 as credited against the plaintiff's share of the marital residence, (2) awarding the defendant a credit for one half of the payments he made on a loan against his Ford Motor Company Savings Plan, (3) awarding the defendant a credit for payments of the mortgage, taxes, homeowner's insurance, and other expenses connected with the marital residence, (4) awarding the plaintiff child support, (5) fixing child support arrears, and (6) awarding the plaintiff child care expenses; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for a determination of the husband's income, and a recalculation of child care expenses, child support, and child support arrears, taking into account any credit due for amounts paid by the husband pursuant to the pendente lite order.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

K. v. B., 13 A.D.3d 12, 784 N.Y.S.2d 76 (First Dept. 2004)(2004 WL 2525121)(2004 N.Y. Slip Op. 08003)(Nov 09, 2004):

Supreme Court, Appellate Division, First Department, New York.

K., Plaintiff-Respondent,

v.

B., Defendant-Appellant.

Nov. 9, 2004.

This appeal presents an unusual set of facts, whose most pertinent aspects are substantially set forth in the dissent. The parties' marriage was unconventional in certain ways, but that lack of convention does not, as the defendant-husband would have it, trump the settled equitable distribution principles which have evolved in New York since 1980. For that reason we most respectfully disagree with our dissenting colleague(s) and affirm the trial court.

CRUEL AND INHUMAN TREATMENT

Without citing any legal authority, the husband argues that the wife could not establish cruel and inhuman treatment as a ground for divorce since the parties did not cohabit, but rather maintained separate residences-the wife in Manhattan and the husband in Putnam County. However, in considering a cause of action for cruel and inhuman treatment, the fact-finder should focus primary attention on the nature of the interaction between a husband and wife, rather than on the type of living arrangement they have.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

 In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Falanga, J.), dated June 2, 2006, as granted that branch of the defendant's motion which was for summary judgment dismissing the amended complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

In April 2003, during a session of marriage counseling, the plaintiff revealed to the defendant that she was involved in a long-term extramarital affair. In January 2004, following a family vacation, the defendant moved out of the marital residence. More than one year later, the plaintiff commenced this action for a divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The Supreme Court subsequently granted that branch of the defendant's motion which was for summary judgment dismissing the amended complaint.

To establish entitlement to a divorce predicated on a cause of action for abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years ( see Domestic Relations Law § 170 [2]; Schine v Schine, 31 NY2d 113, 119 [1972]). Here, the defendant established, prima facie, his entitlement [*2]to summary judgment dismissing the plaintiff's abandonment cause of action as he submitted an affidavit alleging, inter alia, that he was justified in leaving the marital residence by the plaintiff's admission to the extramarital affair. In opposition to the defendant's prima facie showing, the plaintiff did not deny that she admitted to the affair in April 2003 and failed to raise a triable issue of fact as to whether the defendant was justified in leaving the marital home.

Further, the defendant was entitled to dismissal of the cause of action for a divorce on the ground of cruel and inhuman treatment. Domestic Relations Law § 170 (1) defines cruel and inhuman treatment as the treatment of the plaintiff by the defendant "such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant" ( Hessen v Hessen, 33 NY2d 406, 409 [1974]). Where, as here, the marriage is one of a long duration, a very high degree of proof is required for termination on the ground of cruel and inhuman treatment ( see Brady v Brady, 64 NY2d 339, 344 [1985]; Hessen v Hessen, 33 NY2d 406 [1974]; see also Jacob v Jacob, 8 AD3d 725 [2004]). While objective proof of physical or mental injury is not a prerequisite for obtaining a divorce on the ground of cruel and inhuman treatment ( see Levine v Levine, 2 AD3d 498, 499-500 [2003]), the defendant established, prima facie, his entitlement to summary judgment dismissing the cause of action for a divorce on the ground of cruel and inhuman treatment as the plaintiff's allegations of embarrassment and discomfort were insufficient ( see Lipset v Lipset, 150 AD2d 648, 649 [1989]). In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the amended complaint.

The plaintiff's remaining contentions are without merit. Schmidt, J.P., Skelos, Covello and Balkin, JJ., concur. [ See 12 Misc 3d 1167(A), 2006 NY Slip Op 51071(U).]

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

In Dunne v Dunne, 47 A.D.3d 1056, 850 N.Y.S.2d 659 (3d Dept. 2008) the parties were married in 1976. Around 1996 or 1997, plaintiff was diagnosed with a general anxiety disorder. He was prescribed medications, including Xanax (a Benzodiazepine medication) and Ambien.

Most divorces are settled by agreement.  A few go to trial.  The only certainty in a divorce trial is that nobody knows how a Judge will rule.  Read the following case that was decided by the appellate division.  Apparently the Judge got some things right and some things wrong.

67.2.12 - - - Johnson v. Chapin

Johnson v. Chapin, --- A.D.3d ---, --- N.Y.S.2d --- (First Dept. 2008)(2008 WL 664929)(2008 N.Y. Slip Op. 02203)(Mar. 13, 2008):

Supreme Court, Appellate Division, First Department, New York.

Janet M. JOHNSON, Plaintiff-Respondent,

v.

Allan M. CHAPIN, Defendant-Appellant.

Mar. 13, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, BUCKLEY, McGUIRE, JJ.

Judgment of divorce and money judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), entered May 17 and September 23, 2005, inter alia, distributing the parties' marital property and awarding plaintiff maintenance, child support and counsel fees, modified, on the law and the facts, (1) to reduce the wife's share of the enhanced value of the Claverack property to 25%; (2) to vacate the credit to the wife for 50% of the difference between the sum expended on the Claverack renovations and the property's appreciated value; and (3) to credit the husband (a) $548,460 for excess temporary maintenance payments and (b) $484,370.50, 50% of the mortgage and maintenance paid for the Fifth Avenue cooperative during the pendency of the divorce action, and otherwise affirmed, without costs.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.