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What Happens When Parents Behave Like Children

In a recent decision in Westchester Family court, the Honorable Colleen Duffy was faced with a difficult situation where two parents seemed determined to undermine the other's relationship with the child. With some colorful language the Judge found that the court was in a difficult position and could not split the baby. In an attempt to stop the fighting the court issued an extremely detailed order in order to to stave off future problems. Anyone that is involved in a custody proceeding should take note of this ruling because it shows that when the parties are not willing to listen to the court or act amicably with each other, then the court will step in and set out every minute detail of a custody arrangement. This is a step that everyone involved in custody litigation would want to avoid.

D.G., Petitioner/Respondent,
against
S.G., Respondent/Petitioner.

Judge Colleen Duffy,

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters -- specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters -- in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record -- which is more than 900 pages of trial transcripts and numerous exhibits -- the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court -- two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that -- notwithstanding this decision and order -- litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each -- through their inability to communicate and compromise -- has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives -- that is, without consideration of the best interests of the Subject Child --with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed -- and continues to fail -- to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations -- such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort -- also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other -- all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent -- after a full hearing on the issue -- should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that -- on this issue which he views as paramount -- he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas -- [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation -- including vacation access by Ms. G --from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation -- including vacation visitation -- from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that 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.

The concept of custody is unsettled in New York family law. Those who maintain custody of a child have significant powers controlling how they raise that child. In many cases, these rights come at the expense of the non-custodial parent.

In Fuentes v. Board of Education of the City of New York, New York Law Journal, Sept. 2, 2008, pp 23-24, the U.S. Court of Appeals for the Second Circuit certified a question as to whether a noncustodial parent has the right to participate in educational decisions relating to a child where the divorce decree and custody order do no more than grant sole custody to the other parent.

In an intact family, there is no presumption that either parent has custody but rather there is a de facto joint custody arrangement, with either parent having the right to make decisions. Upon divorce, the custody setup must be replaced. Generally, it is in the children's best interests to have both parents involved in their lives, except in the most extreme cases.

Custody generally has two aspects: residential custody (where a child spends time) and legal custody (which parent has the responsibility for decision making).  To avoid excluding one parent unjustifiably, courts in New York have been breaking down legal custody into "zones of responsibility" (or "spheres of influence"). While having custody may not give a parent the right to make every important decision, it does give certain legal entitlements that are significant. It has been long known that "(c)ustody carries the implications of personal power. Visitation implies the acquiescence to that power."

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.

D.G., Petitioner/Respondent,
against
S.G., Respondent/Petitioner.

Judge Colleen Duffy,

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters -- specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters -- in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record -- which is more than 900 pages of trial transcripts and numerous exhibits -- the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court -- two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that -- notwithstanding this decision and order -- litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each -- through their inability to communicate and compromise -- has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives -- that is, without consideration of the best interests of the Subject Child --with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed -- and continues to fail -- to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations -- such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort -- also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other -- all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent -- after a full hearing on the issue -- should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that -- on this issue which he views as paramount -- he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas -- [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation -- including vacation access by Ms. G --from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation -- including vacation visitation -- from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that date.

This constitutes the Decision and Order of this Court.

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New Rule In Divorce Actions

Recently a new rule has gone into effect for matrimonial cases. Starting September 1, 2009 automatic orders will now go into effect whenever someone is served with both a summons and a copy of the automatic orders. These automatic orders are largely concerned with preserving the status quo of the parties' finances. The orders are both relatively simple and at the same time encompass much of what could be done by one party to financially harm the other.

The orders are broken down into five sections; the first restricts a party from disposing of property in any way without the court's or parties' consent. The second restricts any funds, stocks or other assets from being disposed or altered. The third section prevents unreasonable debts from being incurred against the parties' interests or property. The fourth section mandates that all health insurance policies be maintained and unaltered for the parties and their families. The fifth section mandates that all life, home and auto insurance policies will be maintained and unaltered.

These automatic orders should lower the need for early motions to restrict such funds and property in divorce actions. They may also change the calculus for when a lawyer seeks to serve the summons and automatic orders. Below is the full text of the Amendment of the Rule.

AMENDMENT OF RULE

Uniform Civil Rules for the Supreme and County Courts

Pursuant to the authority vested in me, and with the advice and consent of the Administrative Board of the Courts, I hereby promulgate, effective September 1, 2009, new section 202.16-a of the Uniform Civil Rules for the Supreme and County Courts, relating to automatic orders in matrimonial actions, to read as follows:

§ 202.16-a Matrimonial Actions; Automatic Orders

(a) Applicability. This section shall be applicable to all matrimonial actions and proceedings in the Supreme Court authorized by section 236(2) of the Domestic Relations Law.

(b) Service. The plaintiff in a matrimonial action shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this section in a notice that substantially conforms to the notice contained in Appendix F. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons.

(c) Automatic Orders. The automatic orders served with the summons
shall provide as follows:

(1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in
connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or
upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing
life insurance policies, and each party shall maintain the existing life
insurance, automobile insurance, homeowners and renters insurance
policies in full force and effect.

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.

The evolution of Same-Sex Marriage has been a complicated process. Same-Sex Marriage is now legal in some of New York's closest neighbors:  Massachusetts, Vermont and New Hampshire as well as throughout Canada. This has lead to a situation where New York now recognizes Same-Sex marriages from other jurisdictions, albeit not allowing such marriages within the state. The expansion of Same-Sex marriage has brought with it all of the other issues that have always been a part of marriage. These issues involve the law in a number of practice areas, but mainly in matrimonial and familial practice. The article below describes the development of the law in this area, and gives some insight into how a practitioner should handle a client involved in a Same-Sex marriage.

New York Law Journal
As the Same-Sex Landscape Evolves
Prepare to serve this new group of clients.

By Arlene G. Dubin and Sheila Agnew

August 10, 2009

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.

With such a limited number of Judges involved in Matrimonial law, Judge shopping is a serious concern. In a recent Suffolk County Court Decision, Justice Donald Blydenburg held that when it appeared a party to a matrimonial action switched attorneys only to cause the presiding judge to recuse himself, that the Judge did not have to recuse himself. Instead Judge Blydenburg ordered the party to hire a new attorney. This decision gives fair warning to those who would try to attempt similar types of Judge shopping. A New York Law Journal article below outlines the decision.

New York Law Journal
Court Calls Bid for New Lawyer 'Impermissible Judge Shopping'

By Vesselin Mitev

A state judge has rejected a Long Island man's attempt to hire a new attorney as "impermissible judge shopping" because the judge had previously reported the attorney to the grievance committee for an alleged disciplinary violation.

In a strongly worded ruling in response to the attorney's request for the judge's recusal in the matrimonial action, Suffolk County Supreme Court Justice Donald R. Blydenburgh (See Profile) said, "The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant's right to this specific counsel."

The judge ordered the defendant, Salvatore Romanello to hire a different attorney in Gaffney-Romanello v. Romanello, 21508/07.

The Suffolk County Supreme Court decision appears on page 39 of the print edition of today's Law Journal.

Erin Gaffney-Romanello had sued her husband for divorce in 2007 but by 2009 the parties appeared on the verge of settling.

Starting in January 2009, several scheduled conferences were postponed, as the parties told the court they had "reached a settlement" and requested additional time to finalize the deal, according to the decision.

In April 2009, Mr. Romanello fired Schlissel Ostrow Karabatos, the Garden City firm that had been representing him, and retained James F. Hagney, a partner in Reynolds, Caronia, Gianelli, Hagney & La Pinta in Hauppauge.

Mr. Hagney had previously appeared before Justice Blydenburgh in an unrelated matter, where a litigant alleged that Mr. Hagney had violated the attorney disciplinary rules. The decision did not elaborate on the alleged violation.

As a result, Justice Blydenburgh "was compelled to forward the allegation to the Grievance Committee" and had to recuse himself from cases handled by Mr. Hagney while the grievance is pending.

"This recusal has been limited to Mr. Hagney personally, and the Court inquires of Mr. Hagney on the record each time he appears if he intends to represent that particular client, as opposed to his partners," the judge wrote.

Representing Mr. Romanello in April, Mr. Hagney and one of his partners, Peter Caronia, appeared before Justice Blydenburgh and sought his recusal.

The judge declined, writing that doing so would "constitute, in this Court's opinion, impermissible Judge shopping by Defendant of a case that is ready for trial, but represented to have already been settled by the parties."

Ms. Gaffney-Romanello's attorney, Michael P. Vessa, objected to the recusal as well, arguing that he believed the matter was settled based on his prior dealings with Mr. Romanello's former counsel.

Acknowledging that the "right to counsel is absolute," the judge refused to step aside, and cited People v. Mackey, 572 NYS 2d 424, for the proposition that there is no right to specific counsel of one's choice.

In Mackey, the Appellate Division, Third Department, held that an attorney who had "longstanding difficulties" before the judge assigned to the case was properly disqualified and recusal of the judge was inappropriate, given the judge's "intimate involvement in the matter almost from its inception and [the new attorney's] status as a newcomer to the proceedings."

The judge also pointed to a federal ruling, In re FCC v. Nextwave Personal Communications Inc., 308 F3d 137, where the U.S. Court of Appeals for the Second Circuit held that "we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a Judge assigned to the case."

To avoid disqualification, Justice Blydenburgh asked whether Mr. Hagney's partners or associates could handle the case, noting that Mr. Caronia is a "well respected matrimonial attorney" and pointing to two other lawyers, Catherine Miller and Dawn Hargraves, who are affiliated with the firm and handle matrimonial matters.

Mr. Hagney replied that only he would be working on the case, prompting his disqualification, the judge wrote.

"Clearly the Defendant, who had previous counsel...hired Mr. James Hagney solely to forum shop," Justice Blydenburgh held, in staying the case until September so Mr. Romanello can find a new attorney and get ready for trial, now set for Feb. 1, 2010.

In an interview, Mr. Vessa, of Vessa & Wilensky in Garden City, said the judge "did the right thing in view of the circumstances."

Mr. Hagney could not be reached for comment.

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.

When legislators and Judges craft laws and orders they often seek to make rules that are permanent and unchanging. The problem is that life is predictably unpredictable. So many divorce cases that were ended when the economy was strong and people were making a large amount of money are no longer equitable in a world where salaries have dropped precipitously, but expenses have remained high. Many agreements that once made sense, are now overly burdensome for the payer. Due to changes in income the courts have become flooded with requests for modifications of agreements. The article below from the New York Law Journal outlines these problems and gives some insight onto how these requests for modifications are being handled by the courts.

Is our law equal to the challenge of today?

By Harriet Newman Cohen and Tim James

The past year has been a time of drastic economic decline, with millions losing jobs, real estate and stock values plunging, businesses performing far below accustomed levels, investment funds exposed as Ponzi schemes and the reduction or elimination of year-end bonuses in fields where such bonuses are typically the major part of total compensation. One result has been an increased number of applications for downward modification of support obligations.

A March 28, 2009, New York Times article captured the zeitgeist in describing the alarming number of new modification cases, both among the marginal earners and the wealthy, that are overwhelming the Family Court calendars.

This article explores the statutory and case law governing applications for downward modifications of established maintenance and child support. It also asks the question, "Is our law as promulgated and defined through case law equal to the challenge of these economically troubled times?"

The Governing Law

Domestic Relations Law (DRL) §236(B)(9)(b) provides that a court "may annul or modify any prior order or judgment as to maintenance or child support upon...a substantial change in circumstances." But a stronger showing is required to obtain a modification of child support or maintenance when the amounts to be paid have been set by the parties themselves, in an agreement, incorporated in, but not merged with, a judgment of divorce, or resolving a support proceeding.

In Boden v. Boden, the New York Court of Appeals established the preferred status of agreements between the parties on such matters, declaring:

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as [contracts] between the parties and the stipulated allocation of financial responsibility should not be freely disregarded....Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed.

DRL 236(B)(9)(b) ratchets the standard up even higher with respect to modifications of maintenance established by agreement of the parties, specifying that "no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party[.]" (Emphasis added.) Where the requisite showing is made, the court may modify the maintenance provision "for such period of time and under such circumstances as the court determines."

Five years after Boden, in Brescia v. Fitts, the Court of Appeals made it clear that the requirement of showing an "unreasonable and unanticipated change of circumstances" to obtain a modification of child support applies only "when the dispute is directed solely to readjusting the respective obligations of the parents to support their child," and not where "the child's right to receive adequate support is at issue."

In the latter case, a court is free to exercise its discretion in determining how much child support is required to ensure that the child has adequate support and order an upward modification consistent with that determination. It is applications for downward modifications, however, that are the focus of this article.

Malingerers Beware

In the decades since Brescia and Boden, the courts have established demanding standards for downward modifications of spousal and/or child support.

Regardless of whether relief is sought from the mandate of a court alone or from the provisions of an agreement between the parties, the courts, wary of malingerers, have looked to the payor's "capacity to generate income" (Michelle F.F. v. Edward J.F., Jr., O'Brien v. McCann) or, more broadly, his or her "ability to provide support" (Freedman v. Hornike).

Thus, the courts require that a payor seeking a downward modification based on the loss of a job or decreased income demonstrate that his unemployment or underemployment was not of his/her own doing, and that he/she has made diligent efforts to find appropriate alternative employment. Movants who fail to do so typically see their motions denied.

In the recently decided Krup v. Fehr, however, Justice Jeffrey S. Sunshine gave the movant father a second bite of the apple. (See also Lonsdale v. McEwen, discussed below.) At issue was the $2,000 per month in child support that the father had agreed to pay for one child under a stipulation entered into when he was earning $170,000 a year. There was no dispute that his income had decreased to $90,000 at the time he made the downward modification motion.

The judge granted the father's application to the extent of ordering an evidentiary hearing based, among other things, on the father's failure "to offer any evidentiary support for his assertion that this decrease in earnings was not of his own making." The judge also directed that there be pre-hearing discovery. The decision provides a virtual primer on the case law governing downward modifications.

Although the court's focus is typically on changes in the payor's financial circumstances, changes in the financial circumstances of the payee may also be relevant on a motion for downward modification of maintenance or child support. For example, the wife's having gained employment was cited as a factor, or the factor, warranting a reduction in the maintenance amounts awarded in the judgment of divorce in Cross v. Cross, Bofford v. Bofford and Lipow v. Lipow.

The courts have emphasized repeatedly that, on any motion for downward modification of maintenance or child support based on the finances of the payor, a determination as to whether the requisite "change in circumstances" has been shown requires "comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."

In making that comparison, the courts are concerned not just with the payor's income but with his or her overall financial circumstances (including assets and ability to maintain his/her own lifestyle in the face of alleged financial hardship) as indicia of the payor's ability to continue paying maintenance or child support at the same level.

'Unanticipated' Is a Must

Case law dating back to Boden establishes that where a party seeks modification of child support provisions contractually agreed to by the parties, the "change of circumstances" sufficient to satisfy the modification standard must have been "unanticipated" at the time of the agreement.

The courts have typically treated loss of employment as "unanticipated" without much discussion of the point. However, there have been cases in which the courts have held that the loss of employment was not an unanticipated change of circumstances.

For example, in Ellenbogen, the movant's business "had already experienced a precipitous decline in profitability and the loss of a major client at the time he entered into the stipulation," and in Commissioner of Social Services, the movant was on notice for eight years that he would lose his teaching license if he failed to obtain a master's degree; accordingly, his loss of his license for failing to obtain that degree was not unanticipated.

Showing, however, how fact-specific these cases are is Lonsdale v. McEwen. There, the separation agreement incorporated into the judgment of divorce specifically provided for a reduction in basic child support from $48,000 per year to $33,600 per year in the event that the father's income ($1.3 million per year at the time of the separation agreement in late 2001) should fall to $600,000 or less. The majority held that the father was entitled to a hearing on his motion, where "the parties to the agreement anticipated the loss of defendant's lucrative position but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary."

In late 2002, less than a year after the agreement was made, the father had lost his job. He was unemployed for most of 2003 and 2004. He had total income during those two years of only about $150,000, including the payments he received in 2004 from the job he got towards the end of that year which would pay him $200,000 a year prospectively.

The two dissenters, agreeing with the court below, would have denied the downward on the papers and without a hearing, as the father's loss of his job and the drastic reduction in income he suffered was far from "unanticipated" in that the parties had expressly contemplated that possibility and provided for it.

Successful Motions

If a downward modification movant has cleared all of the hurdles discussed above, the outcome of the motion will turn on whether the court views the change in circumstances as sufficiently "substantial," "unreasonable" or "extreme-hardship"-inducing (depending on which standard applies) to warrant a modification. Sometimes the court will grant but time-limit the relief.

This happened in A.R. v. N.R., where the court found that the husband had made a showing of "extreme hardship" in support of his motion for downward modification of both his maintenance and child support obligations (totaling $84,000 per year) under a separation agreement. The husband had suffered a "drastic reduction in income, from $300,000 per year at the time of the divorce to $66,000 per year (a 78 percent drop), through no fault of his own."

The court rejected the wife's contentions that the husband was living a "high lifestyle" and had "undisclosed cash," or more income than he claimed. But finding that the husband's prospects for the future were good, the court fashioned a creative decision, opting to grant a 13 1/2 month suspension of maintenance payments and a short (1/2 month) reduction of his child support obligation instead of a permanent modification.

Similarly, in Sheila C. v. Donald C., the court affirmed a one-year reduction in the movant's maintenance payments, holding that: "Respondent satisfied the extreme hardship standard. However, because he did not prove that his income will never recover, his request for a permanent reduction of his maintenance obligation was properly denied."

Applicant Beware

But if the downward circumstances are of the payor's own making, the court will not grant relief. So where an orthopedic surgeon decided to take an academic position in place of his former private practice, the court would not grant relief, finding that the reduction in his income was of his own doing.

But even apart from that issue, the court found the 31 percent decrease in the surgeon/former husband's income from $134,000 a year to $91,000 insufficient to establish the "extreme hardship" required to warrant a downward modification of the agreed-upon maintenance in light of, inter alia, his "comfortable, even luxurious lifestyle," his recent purchase of a house for $220,000 and his "not insubstantial" $91,000 income.

And job losses alone will not make an "involuntary, unreasonable change in financial circumstances" sufficient to warrant a downward modification, as the former husband learned in Cox v. Cox. He sought to be relieved of his $1,650-per-month child support obligation under a stipulation of settlement, pointing to the loss of his job with Verizon in late 2008, his new wife's loss of her job with Verizon at the same time and the fact that the $1,650 per month he was paying in child support now constituted 95 percent of his $1,741 per month in unemployment benefits. The court denied the relief, on the reasoning that:

• The payee wife, with whom the parties' daughter was residing in Florida, earned about $31,000 per year at her job.

• The husband had earned $318,000 in 2007 from his employment with Verizon, almost $200,000 more than his income of $123,000 for 2004, as stated in the stipulation of settlement the parties signed in December of that year.

• The husband and his new wife had earned a combined $414,000 from their employment with Verizon in 2007, and in that same year had received $498,000 for the sale of Verizon stock, bringing their gross income for the year to $912,000.

• The husband alone had been paid $476,000 by Verizon in 2007, leading the court to conclude that he had probably received a severance payment of approximately $150,000.

The Catch-22

Because of the requirement that a movant for downward modification based on the loss of a job demonstrate that he or she has made diligent efforts to find new employment, some delay in moving is probably necessary in order to make a facially sufficient motion.

But such a delay can be costly where child support is concerned, because, statutorily, child support continues to accrue until the date on which an ultimately successful motion for downward modification is made, and once that obligation has been incurred, the courts can provide no relief from it.

DRL 236(B)(9)(b) provides that "[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support" (emphasis added). As the Court of Appeals explained in Dox v. Tynan.

Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law §244, at 752).

In May of this year, the Court of Appeals stressed the "strong public policy against restitution or recoupment of [child] support payments." Thus, every day of delay before moving for modification is another day to which any downward modification ultimately granted will not apply. And yet, to file before having established a record of diligent pursuit of new employment is to invite dismissal of the motion as facially defective.

So, Set Your Own Standards

Looking forward, divorcing parties (payors and payees) can achieve far greater flexibility with respect to the availability of modifications that take into account the ups and downs of life by agreeing, in a separation agreement or stipulation of settlement, to standards of their own choosing for modification.

In Vincent Z. v. Dominique K., the First Department reversed the Family Court and gave the father a downward modification based on the standards the parties had set for themselves, citing its earlier reasoning in Colyer v. Colyer that "parties to a separation agreement may contractually provide for a support modification on a lesser standard than legally required."

Law Is Malleable, Pragmatic

Wary of opening the floodgates too wide and thereby inviting constant litigation over the reasonableness of maintenance and child support obligations that have already been fixed, the Legislature and the courts set high standards that make successful applications for downward modifications the exception, rather than the rule.

But the law as defined over the years has within it all of the elements necessary to meet the economic crisis facing us today: hardship, unforeseeability, being in extremis. The challenge for our courts is, as always, to weed out the malingerers and to provide relief where appropriate. The law, as written and interpreted, is sufficiently malleable and pragmatic, not dogmatic, to mete out justice, even in these economically troubled times.

Harriet Newman Cohen is a member and Tim James an associate in Cohen Hennessey Bienstock & Rabin. Ms. Cohen is the co-author of 'The Divorce Book' (Avon Publishers, 1994).

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 a decision posted today, the Appellate Division, Second Department asserted jurisdiction over a child custody matter that extended from New York to Kentucky. This decision provides guidance for those who are planning to seek custody in the near future. Importantly, it allows a parent to vacation with their child for a long period, six weeks in this case, without affecting residency for jurisdictional purposes. In an era when many people are forced to relocate for a host of different reasons, this decision will help prevent forum shopping in cases that cross numerous state and jurisdictional lines.

Matter of Felty, appellant v. Felty, respondent
APPELLATE DIVISION
SECOND DEPARTMENT
Family Law

July 21, 2009

Decided July 14, 2009
Before Mastro, J.P., Dickerson, Belen, Chambers, JJ.

APPEAL by the mother in a child custody proceeding pursuant to Family Court Act article 6, as limited by her brief, from so much of an order of the Family Court (Debra J. Kiedaisch, J.), entered in Orange County on May 29, 2008, as granted the father's motion to dismiss the petition for lack of subject matter jurisdiction and dismissed the proceeding.

OPINION & ORDER

ARIEL E. BELEN, J.--The principal issue on this appeal is whether, in this child custody proceeding, New York should exercise home-state jurisdiction. Although the mother in this case had moved the parties' two children from the Commonwealth of Kentucky to the State of New York six months prior to the commencement of this custody proceeding, she allowed the children to vacation with their father in Kentucky for six weeks during this same period. Under the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA) (28 USC §1738A, as added by Pub L 96-111, 94 US Stat 3569, and amended in various sections of titles 22 and 28 of the United States Code; Domestic Relations Law article 5-A), both a parent and his or her children must reside in a state for at least six months before the commencement of a child custody proceeding in order for that state to be deemed the "home state" within the meaning of the UCCJEA. We find that New York has home-state jurisdiction pursuant to Family Court Act article 6 and the UCCJEA since the children's six-week vacation with their father in Kentucky did not constitute a change in their residency.

The petitioner, Carla Ann Felty (hereinafter the mother), seeks review of a determination of the Family Court, Orange County, entered May 29, 2008, granting the motion of the respondent, James R. Felty (hereinafter the father), to dismiss the proceeding for, inter alia, lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2). The court held that neither Kentucky nor New York was the subject children's home state, but concluded that Kentucky was the more convenient forum, and consequently transferred the custody proceeding to the Commonwealth of Kentucky, where a trial has been scheduled.

The parties met through the Internet in 2003, when the mother was studying veterinary medicine at Mississippi State University and the father was a teacher studying for a Master of Education degree from the University of Western Kentucky. The parties married on June 5, 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

On September 2, 2005, the mother gave birth, in New York, to twin daughters, Jessica Mae Felty and Jamie Elaine Felty. On October 31, 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court. On January 11, 2007, while the Kentucky divorce action was pending, the Kentucky Family Court issued a pendente lite visitation order, which directed equal visitation time between both parties, and directed the parties to participate in mediation. As a consequence of the mediation, the parties reached an agreement regarding the distribution of most of their property, but could not reach a custody agreement.

In April 2007 the mother forwarded a proposed settlement order to the father, which would have held the divorce action in abeyance for one year, allowed the mother to return to New York for at least one year to pursue her career as a veterinarian, and outlined a living arrangement and schedule for residential custody, which provided that the parties and children would, over the next two years, alternate between Kentucky and New York. However, neither the parties nor the Kentucky Family Court signed the proposed settlement order.

On April 20, 2007, the mother and children moved to New York to live with the mother's parents. Thereafter, the parties sold the house they had purchased together in Kentucky and the father moved in with his parents in Kentucky. On June 7, 2007, both parties signed an "agreed order" to dismiss the Kentucky divorce action without prejudice to reinstatement of the action. From June 9, 2007, through July 14, 2007, the father resided with the mother and the children in the maternal grandparents' home in New York.

The children visited their father in Kentucky at his parents' home from July 15, 2007, until August 27, 2007, an approximately six-week period that figures importantly in this custody litigation. While in Kentucky, the children did not have their own bedrooms but, rather, slept on a mattress on the floor of the father's bedroom, during which time they contracted scabies. However, they were not diagnosed or treated for scabies until they returned to New York.

On November 1, 2007, the mother filed the instant petition for custody in the Family Court, Orange County. In the petition, the mother requested sole custody of the children and that visitation with the father occur only within New York State. In support of this request, the mother asserted, among other things, that she had been the children's primary caregiver since birth; there were no pediatricians or hospitals in Butler County, Kentucky, where the father resided; the nearest hospital to the father's residence was 45 minutes away by car; and the home where the father resided was unsanitary. According to the mother's petition, the father's residence was infested with mice and did not have a functioning sewer line. Further, the petition alleged that the paternal grandparents' property, where the father's trailer was located, was infested with ticks and cockroaches. The mother further alleged that the father was verbally and physically abusive to her on multiple occasions, including, for example, one occasion on which the father threatened to kill her before he would let her take the children to New York. According to the mother, on the same night as the father made that threat, he forced her out of their car, requiring her to walk alone on a desolate road for miles before she reached home.

On December 5, 2007, while the mother's petition for custody was pending in New York, the Kentucky Family Court granted the father's motion for reinstatement of the previously-dismissed divorce action, but thereafter stayed that action on the mother's motion.

Meanwhile, before the Family Court, Orange County, the mother asserted, inter alia, that New York was the children's home state within the meaning of the UCCJEA since the children had lived in this state continuously since April 2007, i.e., for at least six months prior to her commencement of the instant proceeding (see Domestic Relations Law §75-a[7]).

On February 12, 2008, the father moved to dismiss the petition in the instant proceeding based on, inter alia, lack of subject matter jurisdiction. The father argued, among other things, that the divorce and custody proceedings should both be litigated in Kentucky since the children had not lived in New York for the requisite six consecutive months prior to the mother's commencement of this proceeding and, thus, New York was not their home state within the meaning of the UCCJEA. Rather, he contended, the mother commenced the proceeding less than four months after the children returned from Kentucky, after residing with him for six weeks during the summer of 2007. He argued that the children's six-week absence from New York was not temporary and, thus, the children had not lived in New York for the requisite six consecutive months prior to the commencement of this proceeding.

In opposition, the mother submitted an affidavit in which she averred that the father had been physically and verbally abusive toward her while she was pregnant. She explained that, after giving birth to the twins in New York, she agreed to move to Kentucky, with the understanding that she could return to New York at any time. The mother averred that, upon the father's commencement of the divorce action in Kentucky, she agreed to reconcile the marriage only in a desperate attempt to return to New York. The mother contended that she and the children moved to New York with the knowledge of both the Kentucky Family Court and the father, and that she filed the instant custody petition only after she and the children had lived in New York for six consecutive months.

The mother also asserted that her residence in Kentucky had always been temporary, as evidenced by the fact that her driver's license, voter registration, and veterinary license remained in New York. She asserted that, even while she was physically in Kentucky, she continued to use her parents' address in New York as her permanent address. Moreover, she noted that the children's six-week visit to Kentucky was not undertaken pursuant to any stipulated living arrangement, but only as an ad hoc arrangement between the parties.

The mother further contended that returning the children to Kentucky would place them in imminent and substantial danger. On this issue, the mother noted that, since reinstatement of the divorce action in Kentucky, doctors in New York had diagnosed Jamie with microcephaly1. Because of Jamie's need for medical attention and the Kentucky doctor's failure initially to diagnose that condition, the mother averred that she did not trust the health care system in Kentucky and expressed fear that it could compromise Jamie's health2. In addition to Jamie's medical condition, Jessica has also been directed to meet with an occupational therapist to improve her delayed fine motor skills.

The Family Court granted the father's motion and dismissed the proceeding for lack of subject matter jurisdiction. The court held that neither New York nor Kentucky was the children's home state since their six-week stay with the father in Kentucky was not a temporary absence from New York, but constituted a change of residence. Similarly, the court held that the mother's relocation with the children from Kentucky to New York in April 2007 was not a temporary absence from Kentucky; hence, it determined that Kentucky was not the home state either. The Family Court then determined that Kentucky was the more convenient forum for the custody proceeding since the children resided most of their lives in Kentucky. We reverse.

New York's adoption of the UCCJEA was intended to accomplish three principal goals. First, it was designed "to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected" (Domestic Relations Law §75[2]; see Legislative Mem, Bill Jacket, L 2001, ch 386). Second, it was designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings (see Matter of Michael McC. v. Manuela A., 48 AD3d 91, 95; Stocker v. Sheehan, 13 AD3d 1, 4; EB v. EFB, 7 Misc 3d 423, 432, affd Bjornson v. Bjornson, 20 AD3d 497). Third, it was designed to resolve any inconsistencies and conflict between its predecessors, the Uniform Child Custody Jurisdiction Act (hereinafter the UCCJA) and the Federal Parental Kidnaping Prevention Act (28 USC §1738A; hereinafter the PKPA) (see Handschu, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 1; Ilvento, The Application of Kinney Systems, Inc. v. Continental Insurance Company to Modification of Child Custody Proceedings, 83 Fla BJ 41 [May 2009]). In addition to resolving the conflicts between the UCCJA and the PKPA, the UCCJEA also conforms to the Violence Against Women Act (18 USC §2265 et seq.; hereinafter the VAWA), and the VAWA's goal of protecting victims of domestic violence who flee from one state to another state with their children to escape abuse (see Domestic Relations Law §76-g[4]; Handschu, Uniform Child Custody Jurisdiction and Enforcement Act, NYLJ, Oct. 4, 1999, at 1, col 1).

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the "state is the home state of the child" (Domestic Relations Law §76[1][a]; see Matter of Ciccone v. Pugh, 42 AD3d 767). A "[h]ome [s]tate" is defined as "the state in which a child lived with a parent...for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law §75-a[7]). The definition of home state also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (see id.; Arnold v. Harari, 4 AD3d 644).

Here, the facts support the mother's contention that she intended to remain permanently in New York and that the children's six-week visit to Kentucky during the summer of 2007 was a temporary absence which did not interrupt the six-month pre-petition residency period required by the UCCJEA. Although the mother may have expressed to the father that she would return to Kentucky, her actions indicated otherwise. For instance, the mother never changed her permanent address from New York to Kentucky, and her driver's license, veterinary license, and voter registration all remained in New York. Furthermore, in New York, the children received special education services, had a pediatrician, and resided in their own home with the mother, who was the children's primary care giver since birth. Considering these facts, it is evident that the mother intended New York to be the permanent residence and home state for both herself and the children. Her conduct could not be construed to evince an intent to have the children stay permanently in Kentucky.

We are further persuaded that Kentucky is not the children's home state by virtue of the fact that the father took no affirmative steps prior to the commencement of this proceeding to establish any permanent residence for the children in Kentucky. Considering the children's health and developmental concerns, health care was and is highly important to the children's well-being. Despite these health issues, the father did not retain a pediatrician or a therapist when the children resided in Kentucky. Moreover, the children did not have bedrooms but, rather, slept on the floor of the father's room in the grandparent's home. In sum, the mother's decision to seek medical and psychological care for the children in New York demonstrated a level of permanency that was never achieved in Kentucky, and is indicative of a home-state residency for the children.

If a parent wrongfully removes a child from a state, the time following the removal is considered a temporary absence (see Matter of Michael McC. v. Manuela A., 48 AD3d at 96; Matter of Krymko v. Krymko, 32 AD3d 941; Arnold v. Harari, 4 AD3d 644). The father argues that the mother left Kentucky under false pretenses, and that Kentucky thus retained home-state jurisdiction through the wrongful removal exception. Citing Matter of Krymko v. Krymko (32 AD3d 941), the father contends that the mother wrongfully removed the children from Kentucky and participated in forum shopping and gamesmanship, thus violating the intent and purpose of the UCCJEA. The record, however, does not support these contentions. Although the parties and children previously resided as a family unit in Kentucky, and the children lived most of their lives in Kentucky, the father failed to show how the children's move to New York constituted a temporary absence from Kentucky or was effected through a wrongful removal.

In any event, a wrongful removal will not be treated as a temporary absence "if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence" (Domestic Relations Law §76-g[4]; see Hector G. v. Josefina P., 2 Misc 3d 801, 820-821; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Uniform Child Custody Jurisdiction and Enforcement Act §76-g, at 211). Other states have also applied the UCCJEA to protect victims of domestic violence who flee from one state to another with their children to escape abuse and seek custody in a different jurisdiction (see e.g. Bissell v. Baumgardner, 236 SW3d 24 [Ky App 2007]; Stoneman v. Drollinger, 64 P3d 997 [Mont 2003]; In re Parentage, Parenting, and Support of A.R.K.-K., 174 P3d 160, 165 [Wash App 2007]). Although one goal of the UCCJEA is to prevent forum shopping (see Matter of Michael McC. v. Manuela A., 48 AD3d at 95; EB v. EFB, 7 Misc 3d at 429), another crucial purpose of the UCCJEA is to protect victims of domestic violence who, on their face, may be perceived as forum shoppers, but in reality are fleeing from one state to another to escape abuse (see Legislative Mem, Bill Jacket, L 2001, ch 386; Hector G. v. Josefina P., 2 Misc 3d at 820-821). Here, the mother admittedly misled the father about agreeing to reconcile their marriage. However, the mother averred that the father would not permit her to return to New York if she refused to attempt reconciliation. She thus asserts that, although she lied to the father, she did so with the intent to return to New York to protect herself and the children from the threat of domestic violence (see generally Matter of Machado v. Del Villar, 299 AD2d 361, 361). Pursuant to Domestic Relations Law §76-g(4), a party's conduct may not be construed against him or her if he or she engaged in such conduct to protect against domestic violence (see Hector G. v. Josefina P., 2 Misc 3d at 821-822; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Uniform Child Custody Jurisdiction and Enforcement Act §76-g, at 211). Accordingly, we do not construe the mother's conduct as a wrongful removal, since her concededly false statement of intent was made to escape an allegedly abusive relationship which included threats of domestic violence.

In sum, the record reveals that the children's six-week summer visit to Kentucky was merely a temporary stay similar to a summer vacation. The mother agreed to the six-week visit so that the children could have the opportunity to spend time with their family in Kentucky, with the understanding that the children would return to New York to resume their therapy and schooling. As a result, the children's visit to Kentucky was not a change of residency, but was merely a temporary absence from New York. As such, under Domestic Relations Law §75-a(7), the children's temporary absence from New York is considered to be part of the requisite six-month period. New York is thus the children's home state and its courts have jurisdiction to hear the instant custody proceeding.

In addition to furthering the UCCJEA's goals of protecting a party who has made allegations of domestic abuse and attending to the health and educational needs of the subject children, New York's exercise of jurisdiction here furthers the statutory goal of strengthening jurisdictional certainty in child custody proceedings. In the interest of protecting children and parents who travel frequently between states, our recognition of the children's six-week visit as a temporary absence permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status. Thus, the Family Court's determination that neither New York nor Kentucky was the children's home state is incorrect.

Since New York is the children's home state within the meaning of the UCCJEA, the courts of New York have jurisdiction over this custody proceeding unless jurisdiction is declined (see Domestic Relations Law §76-f[1]; Matter of Navarette v. Wyatt, 52 AD3d 836; Matter of Michael McC. v. Manuela A., 48 AD3d at 97). We find no ground to decline such jurisdiction and, thus, we need not analyze whether New York or Kentucky is the more convenient forum.

The order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, the motion to dismiss the petition for lack of subject matter jurisdiction is denied, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings on the petition. MASTRO, J.P., DICKERSON and CHAMBERS, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the motion to dismiss the petition for lack of subject matter jurisdiction is denied, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings on the petition.

1. Microcephaly is "associated with mental retardation" and is characterized by an "abnormal smallness of the head." (Physicians' Desk Reference Medical Dictionary 1112 [2d ed 2000]).

2. According to the mother and the attorney for the children, in September 2008, both of the subject children began receiving special education services, including speech, occupational, and physical therapy in New York, and are attending preschool in New York.

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.

Times are tough, our financial markets are in shambles, the auto industry is emerging from a historic bankruptcy, unemployment is high and home prices have collapsed. These tough times has also created an anomaly in the world of divorce, where people who want to get divorced are being forced by their financial situation to stay together. The below article, which recently appeared in the Wall Street Journal, relates the story of several couples who either plan on getting divorced or are in divorce proceedings. These couples have decided that though they no longer want to be together, that they are better off cohabiting until the housing and job markets both turn around. It will be interesting to see how the ongoing economic downturn will continue to effect divorces.

Wall Street Journal

What God Has Joined Together, Recession Makes Hard to Put Asunder
For Some, the Downturn Keeps Divorce on Ice; Ms. Brewster, Husband Share a House Divided

July 13, 2009
By JENNIFER LEVITZ

Rhonda Brewster and her husband have decided they don't want to be married to each other anymore. But while they're ready to move on, they still can't move out.

They don't want to sell their home, in Huntsville, Ala., in a down market. They can't afford two households until Ms. Brewster finds steady work. So for now, they are living under the same roof but on separate floors.

The "kids are OK with it." says Ms. Brewster, a 39-year-old freelance writer and stay-at-home mother. "They just know that mommy lives upstairs and daddy lives in the basement."

Unwinding the ties of matrimony is rarely simple or inexpensive, but for many couples, the sour economy is complicating the process further.

Divorce lawyers say many couples are delaying the decision to dissolve marriages and are staying in unpleasant situations for fear of being on their own at a time of economic uncertainty. Others are being forced to live together after the divorce is final for financial convenience. That can strain the emotions and result in awkward negotiations about subjects like dating.

In Nashville, Tenn., Randy and Lori Word jointly filed for divorce in February, after 10 years of marriage, and expect to get a court date this summer. Meanwhile, they continue to share a house while Ms. Word -- who had been a stay-at-home mother in recent years -- tries to find work in marketing. "I don't see jobs out there," she says.

Things are getting a little cramped in the house. Mr. Word, a 36-year-old construction-project manager, keeps his clothes in boxes in the study and sleeps in the living room. "Luckily, we bought a very nice couch two years ago," he says.

Ms. Word, who is 37, works part time as a waitress while she is searching for full-time work. Some nights she returns home from a shift to find Mr. Word in the bed complaining that his back can't take another night on the couch -- and asking her to please sleep in the living room, which she does.

Both say they are actually getting along better now that they are no longer in an emotional marital relationship.

"We're a lot kinder to each other," says Ms. Word, adding, "We're not so offended and bothered by each other." Mr. Word says, "We've actually developed or redeveloped a friendship that I think had gotten lost a little bit."

A May survey by the Institute for Divorce Financial Analysts, a national organization for financial professionals who work on divorce cases, found that the recession was delaying divorces, and inspiring "creative divorce solutions" in living arrangements.

"People are saying, 'I've put up with it for the last 10 years, I can put up with it for another year,'" says Gary Nickelson, president of the American Academy of Matrimonial Lawyers. In a poll of 1,600 of its members, the group says, respondents estimated that divorce cases in the six months through March were off 40% from normal levels.

It's still unclear how the recession is affecting divorce rates overall, because of lags in government data. But courts in some major population centers say fewer people have been filing for divorce since the downturn began in late 2007. In New York County 9,349 couples filed for divorce in the first four months of 2009, off 14% from 10,848 in the same period in prerecessionary 2007, according to records from New York State Unified Court System.

In Los Angeles County, divorce filings in the first four months of this year dropped 3%, to 9,048, from the same period last year and are down 9% from the comparable span in 2007, according to records from the Los Angeles Superior Court.

A lull in divorce could be a silver lining in the recession, says Steve Grissom, president of Church Initiative, a Wake Forest, N.C., organization that runs DivorceCare, a national support group. Mr. Grissom says couples who postpone splits may be able to work through problems and reconcile.

Bonnie Hughes, a 51-year-old financial planner, says she developed stomach problems when the real-estate slump turned her marital split into "the divorce that never ends."

She and her husband divorced in February 2007, but for financial reasons continued to live together in their house in Chattanooga, Tenn., until the following May. Ms. Hughes moved out, but the ordeal wasn't over. They put the house up for sale, with each planning to use the proceeds to finance the next stages of their lives, Ms. Hughes says, but "it just wasn't selling."

They finally sold in August 2008, after dropping the price by $100,000 to $324,000, which was less than they had paid for the place four years earlier. She used her proceeds to move to Atlanta.

In Alabama, Ms. Brewster and her husband say they are avoiding complications by sticking together even as they plan to part.

The couple decided in March to split after 16 years of marriage. Ms. Brewster has hired a divorce lawyer and says she has been advised to have as little interaction as possible with her husband. Both say reconciliation isn't in the cards.

But to afford two separate households, they either need to sell the house they bought four years ago -- which they don't want to do in a down market -- or wait until Ms. Brewster has steady income.

In the meantime, Ms. Brewster lives on two floors of the house, residing with the couple's two children, plus the family pets: a guinea pig, a squirrel, a dog, two rabbits, two gerbils, five cats and five lizards.

Her husband lives in the finished basement, formerly the family's game room. "We had to take down the pool table so he'd have a place to sleep," she says. He sleeps on an air mattress, and has his own entrance and a full bathroom, though his only cooking equipment is a microwave.

Each calls the other before entering their respective domains; they schedule use of the washer and dryer and negotiate evenings out, Ms. Brewster says.

"He still takes the garbage out and mows the lawn. Sometimes, I will call him and say, 'I know you're eating frozen dinners; I cooked extra, come up,'" Ms. Brewster says. "I try to take the high road in front of the kids. Goodness knows they've seen the bad side of marriage -- the arguing."

Both have resumed dating and have even given each other advice on how to get back into the singles world. Ms. Brewster took the photograph of her husband that he put on match.com, the online dating Web site. On some Saturday nights, she says, they hire a baby sitter so they can both go out, and they share their plans so they won't run into each other.

Their living situation has scared away some potential suitors. "It freaks a lot of them out," says Ms. Brewster. "I tell them upfront: Here's my situation. Eventually I will move on, but I'm not going to do something to mess myself up financially."

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.

From my experience, even the simplest divorce can easily turn into an extremely contentious proceeding. This can sometimes turn a couple who were once lovers into the bitterest of enemies. This may be acceptable in some divorce cases, but in many cases the former couple's children are the ones who bear the burnt of the hostility. This is certainly not in the children's best interest. As a result of this, several lawyers have created a collaborative process with different rules than the traditional adversarial process. This is a new area of Law and the below article goes through several of its aspects. If this type of process becomes more popular it can potentially take some of the acrimony out of divorce proceedings.

New York Law Journal
Law and Children
The Uniform Collaborative Law Act: a Milestone

By Andrew Schepard

Groups of divorce lawyers have developed collaborative law--a relatively new ADR process with many of the same peacemaking benefits for children of divorce and separation as mediation. While efforts are underway to expand collaborative law into other areas, it has its deepest roots in divorce and family law. Thousands of lawyers have been trained in collaborative law, and many parents have participated in it. Initial empirical evaluations of collaborative law indicate high levels of parent satisfaction. Many experienced divorce lawyers report that collaborative law increases their satisfaction with their practice because of the constructive role they play in helping parents reorganize their relationships with their children.

This column briefly describes what collaborative law is. It then focuses on the Uniform Collaborative Law Act (UCLA) developed by the Uniform Law Commission (ULC) (formerly the National Conference of Commissioners on Uniform State Laws). The UCLA is a milestone in the development of collaborative law, as it is a uniform statutory framework for its operation. Readers interested in more detail, including citations, about collaborative law and the UCLA can consult the current draft of the act (which has an extensive Preface and Commentary) and can be found at the Web site of the ULC, or at the Web site of Hofstra Law School. This author is the Reporter for the Drafting Committee on the act.

The Process and Features

The goal of collaborative law is to encourage parties to engage in "problem-solving" rather than "positional" negotiations. As described by Roger Fisher, William Ury and Bruce Patton in their famous book, "Getting to Yes," problem-solving negotiators focus on finding creative solutions to conflict that maximize benefits for all sides, while positional negotiators focus on arguing positions to "win" concessions. Collaborative lawyers emphasize that no threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue.

Parties in collaborative law disclose information voluntarily, without formal discovery requests. Parties also have the option to participate extensively in the planning for and conduct of negotiation sessions with their collaborative lawyers. Many models of collaborative law engage mental health and financial professionals in advisory and neutral roles--e.g., divorce coach, appraiser, and child's representative. Collaborative law negotiations are confidential.

Lawyers can and do, of course, engage in problem-solving negotiations and encourage active client involvement without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the enforcement mechanism that parties create to ensure that problem-solving negotiations actually occur. Parties and collaborative lawyers agree in advance in a written agreement ("collaborative law participation agreement") that a collaborative lawyer represents a party only for the purpose of negotiations and will not represent the party in court. The parties also agree that their lawyers are disqualified from further representing parties if the collaborative law process ends without agreement ("disqualification requirement"). Finally, parties agree they mutually have the right to terminate collaborative law at any time without giving a reason.

A collaborative law participation agreement is thus a strong mutual commitment for problem solving negotiations. It is also a method of addressing the age old dilemma for negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other's intentions and "where the pursuit of self interest by each leads to a poor outcome for all"--the famous "prisoner's dilemma" of game theory. In collaborative law "[e]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through settlement."

There are risks for parents who choose collaborative law---especially of incurring the economic and emotional cost of employing a new lawyer. But there are also benefits for them and their children. "[I]t would be a mistake to focus solely on the risk that [collaborative law] poses for clients. Other things being equal, spouses who choose court-based divorce presumably run the greater risk of harming themselves and their children in bitter litigation or rancorous negotiations. [Collaborative law] clients presumably bind themselves by a mutual commitment to good faith negotiations in hopes of reducing the risk that they will cause such harm, just as Ulysses had his crew tie him to the mast so he would not succumb to the Sirens' call and have his ship founder."

Numerous bar association ethics committees (including the American Bar Association's) have generally validated collaborative law as a permissible limited purpose representation. They have emphasized that parents can decide for themselves whether the benefits of collaborative law outweigh the risks if they do so with informed consent.

Collaborative law has thus far largely been practiced by lawyers in groups which draft their own model participation agreements, set their own membership qualifications and can include mental health and financial professionals. Collaborative practitioners have established their own professional association, the International Academy of Collaborative Professionals (IACP) and have worked diligently to articulate their own code of ethics within the broad framework created by the rules of professional responsibility.

The Uniform Law Commission

The ULC has worked for uniformity of state laws since 1892. It consists of more than 300 lawyer commissioners from every state. It has drafted more than 200 uniform laws on numerous subjects and in various fields of law where uniformity is desirable and practicable. The signature product of the ULC, the Uniform Commercial Code, is a prime example of how its work has simplified the legal life of businesses and individuals by providing rules and procedures that are consistent from state to state.

The ULC has taken the same approach to alternative dispute resolution and family law, developing, for example, the Uniform Mediation Act, the Uniform Arbitration Act and the Uniform Child Custody Jurisdiction and Enforcement Act.

The process of drafting a uniform act is transparent, and enlists expertise and key stakeholders. The ULC decides on a project, establishes a drafting committee of commissioners, and designates a reporter (usually a law professor), who produces multiple drafts for review in open meetings. Drafts are posted on the ULC Web site and observers from interested groups participate extensively in the drafting committee deliberations. Drafts are also reviewed by the ULC Style Committee for style and consistency. The entire ULC reviews the draft statute line by line twice. If approved, the act is then transmitted to the ABA House of Delegates for approval and then is transmitted to the states for adoption.

For the past two years a ULC Drafting Committee has been developing an act to codify collaborative law procedures into a uniform act. Peter K.Munson, the committee's chair, has wide experience with collaborative law and family law, and Harry L. Tindall, its vice chair, is a well known collaborative lawyer, active in many law reform efforts. The Drafting Committee includes several commissioners from the committee that drafted the Uniform Mediation Act. The committee has been advised by representatives of various ABA sections and the ABA Commission on Domestic Violence. Many collaborative lawyers from around the country served as observers of the drafting process and contributed their expertise to the Drafting Committee's deliberations.

The reasons that the ULC decided to undertake the drafting of the UCLA are similar to the reasons it undertakes any project--to promote the development of uniform law in an important and emerging area. A number of states have enacted statutes of varying length and complexity which recognize collaborative law, and a number of courts have taken similar action through the enactment of court rules. Participation agreements are crossing state lines as individuals and businesses utilize the collaborative process. As the use of collaborative law grows, the UCLA will provide consistency from state to state regarding enforceability of collaborative law agreements, confidentiality of communications in the process, a stay of court proceedings and the privilege against disclosure should the process not result in settlement.

The current draft of the UCLA will be submitted for final reading by the entire ULC at its Annual Meeting in July 2009. If adapted, the act will be then presented to the ABA House of Delegates in February 2010, and will be available for consideration by state legislatures during the 2010 legislative session.

Provisions of the Act

The UCLA aims to standardize the most important features of collaborative law participation agreements both to protect consumers and to facilitate party entry into collaborative law. It mandates essential elements of a process of disclosure and discussion between prospective collaborative lawyers and prospective parties to promote entry into collaborative law with informed consent.

The act also makes collaborative law's key features--the disqualification provision and voluntary disclosure of information--mandated provisions of participation agreements. Finally, the act creates an evidentiary privilege for collaborative law communications to facilitate candid discussions during the collaborative law process.

The key provisions of the UCLA are:

- Minimum requirements for collaborative law participation agreements, including written agreements, description of the matter submitted to a collaborative law process (a term not limited by subject), and designation of collaborative lawyers (section 4);

- A prohibition on tribunals from ordering a person to participate in collaborative law over that person's objection, thus insuring that party participation in a collaborative law process is entirely voluntary (section 4 (c));

- A stay of proceedings when parties to a pending proceeding sign a participation agreement, while allowing the tribunal to ask for periodic status reports (section 6);

- An exception to the stay for emergency orders to protect health, safety, welfare or interests of a party, a family member or a dependent (section 7);

- A definition of the scope of the disqualification requirement to both the matter specified in the collaborative law participation agreement ("collaborative matter") and to matters "related to the collaborative matter"--those involving the "same transaction or occurrence, nucleus of operative fact, claim, issue or dispute as a collaborative matter" (section 9 and 2(13));

- Extension of the disqualification requirement to lawyers in a law firm with which the collaborative lawyer is associated ("imputed disqualification") (section 9(b));

- An exception to imputed disqualification for legal aid offices, law school clinics and the like if the associated collaborative lawyer represents very low income parties for no fee, the parties agree to the exception in advance, and the collaborative lawyer is screened from further participation in the matter or related matters (section 10);

- A similar exception to imputed disqualification for collaborative lawyers for government agencies (section 11);

- A codification of the requirement that parties voluntarily disclose relevant information during the collaborative law process without formal discovery requests and to update information previously disclosed that has materially changed (section 12);

- An acknowledgment that standards of professional responsibility and child abuse reporting for lawyers and other professionals are not changed by their participation in a collaborative law process (section 13);

- A requirement that lawyers must disclose and discuss the material risks and benefits of collaborative law as compared to other dispute resolution processes such as litigation, mediation and arbitration as part of the process of informed consent to entry into collaborative law (section 14(a));

- An obligation on collaborative lawyers to screen clients for domestic violence (defined as a "coercive and violent relationship") and, if present, to participate in a collaborative law process only if the victim consents and the lawyer is reasonably confident that the victim will be safe (section 14(b));

- A privilege for collaborative law communications which are sought to be introduced into evidence before a tribunal (section 16);

- Provisions for waiver of and limited exceptions to the evidentiary privilege based on important countervailing public policies (such as the protection of bodily integrity and crime prevention) identical to those recognized for mediation communications in the Uniform Mediation Act (sections 16, 17, 18);

The Lawyer as Peacemaker

In this bicentennial year of his birth, it is helpful to remember Abraham Lincoln's advice in 1850 to young lawyers:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.

The UCLA should encourage more lawyers to fulfill Lincoln's vision of the lawyer as peacemaker through collaborative law. It should also encourage parents to consider whether peacemaker lawyers may have significant benefits for them and, most importantly, their children who are often the "real loser[s]" in litigation.

Andrew Schepard is professor of Law at Hofstra University School of Law and director of the Center for Children, Families and the Law. He is Reporter for the Drafting Committee on the Uniform Collaborative Law Act of the Uniform Law Commission. 

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 a new decision by the Appellate Division, Third Department, the court ruled that a mother could move her 12 year old daughter to Florida, despite all parties agreeing that the father was a good father. This decision by the Appellate Division could potentially make it easier any parent with custody that is facing tough financial circumstances to relocate. In today's difficult financial climate this decision could have ramifications for many divorced New Yorker's.

New York Law Journal

Panel Upholds Decision to Move Child Away From Father to Florida

By Joel Stashenko
July 07, 2009

ALBANY - An appeals court has affirmed a Family Court determination that an upstate woman be allowed to move to Florida with her 12-year-old daughter over the objections of the girl's father, even though the appeals judges conceded the father demonstrated "unquestionable fitness" as a parent.

An Appellate Division, Third Department, panel ruled unanimously that Broome County Family Court Judge Peter P. Charnetsky (See Profile) properly exercised his discretion in the custody and visitation case, including weighing statements by Tami R. Winston's daughter that she would prefer to move away from New York with her mother.

"Notwithstanding the existence of evidence demonstrating that the father is a good parent, we conclude that a preponderance of the evidence exists to support Family Court's determination that relocation of the child with the mother was in the child's best interest," Justice Leslie E. Stein wrote for the panel in Winston v. Gates, 504284.

The Third Department decision appears on page 36 of the print edition of today's Law Journal.

Ms. Winston had petitioned Family Court starting in 2007 seeking to change the terms of the 2002 order of custody in which both she and Dennis L. Gates, who she never married, received joint legal custody of their daughter. The mother was the primary caregiver under the arrangement. According to the court, Ms. Winston had been subsequently diagnosed with a degenerative disc disease that forced her to stop working and to need help caring for her daughter.

Facing the exhaustion of her resources in New York, she asked Family Court for approval to move with her daughter to Florida, where her parents offered Ms. Winston free room and board and parenting help. She had only a boyfriend and a few relatives to depend on in Broome County.

Mr. Gates countered by seeking primary custody. He argued that he and his current wife could provide his daughter with a stable living arrangement in New York without the disruption of the move to Florida.

Judge Charnetsky ruled that the girl's primary residence should continue to be with her mother and that the father should get what the Third Department called "extensive" visitation rights of six weeks during the summer, one week at Christmas and one week during spring break. The judge required Ms. Winston to provide transportation for two of those visits as well as a cell phone to allow her daughter to have frequent direct conversations with Mr. Gates.

According to the appeals panel, both parents were "active participants" in raising their child and both had developed a strong relationship with her.

Still, the court found that the stronger bond had been developed between the mother and daughter.

"For example, the record reflected that the child generally turned to the mother for advice and when she wanted someone in whom to confide," Justice Stein wrote. "As Family Court observed, the mother, unlike the father, was knowledgeable with record to the child's medical diagnosis of attention deficit disorder and special educational needs and addressed concerns relating to those needs."

As far as the father was concerned, the panel noted that he had remarried and that his daughter would have had to share a room with another child had he been granted legal custody of the girl. Having as many as four other children to look after in New York, Mr. Gates would be left with "limited time" to spend exclusively with his daughter, the court decided.

The panel also noted that the girl's law guardian, Christopher A. Pogson of Binghamton, asked Judge Charnetsky to give substantial weight to the girl's stated preference to move with her mother rather than remain in New York with her father.

"Given her age, I thought the court should defer to her preference," Mr. Pogson said in an interview.

Mr. Pogson sa id the case was a difficult one because both parents were intimately involved in their daughter's upbringing and both were acting in the girl's best interests.

Mr. Gates' attorney, Richard J. Grace of Binghamton, said yesterday he was "very, very disappointed" with the ruling.

He said Judge Charnetsky and the Third Department judges both cited the familiar goal in custody and visitation decisions that the outcome should be in the "best interests of the child" without ever quite explaining how.

"The judge had never delineated why it was in the best interests of the child to relocate from everything she was familiar with to move to Florida, especially based on the fact that the father was so involved with her life," Mr. Grace said in an interview. "They [the Third Department judges] also simply use the catch phrase that is in the best interests of the child. One of our arguments was that it may be in the best interests of the mother to relocate, but it wasn't necessarily in the best interests of the child."

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.

There are generally two ways to start a divorce action, one is by Complaint and the other is by serving a Summons with Notice. One of the benefits of starting an action by serving a Summons with Notice is that according to CPLR Rule 3217(a)(1) a Summons with Notice can be discontinued at any time, without cause or judicial involvement. The case below affirms that notion and adds to it that even where their has been a stipulation that the divorce would be uncontested, that does not constitute ones waiver of their right to dismiss such an action at their discretion.

Ressa v. Ressa, 350291/06
Decided: November 8, 2007
Justice Jacqueline W. Silbermann

NEW YORK COUNTY
Supreme Court

Defendant brings two applications by Order to Show Cause: (1) to vacate the Notice of Discontinuance filed by the Plaintiff in this matrimonial action and for restoration of the case; and (2) for accountants, appraisers and counsel fees pursuant to DRL §237. The Plaintiff submitted papers opposing the motion to vacate the Notice of Discontinuance. In response to the fee application, the Plaintiff submitted a letter asserting that the motion for interim counsel and expert fees "should be marked as being disposed of as moot."1

The Motion to Vacate the Notice of Discontinuance

Defendant's motion to vacate the Notice of Discontinuance poses a novel question of first impression to this Court, that is: whether a stipulation made in a preliminary conference order, to the effect that the issue of fault is resolved and that the Defendant was entitled to take a divorce against the Plaintiff on the grounds of constructive abandonment, constitutes a waiver of the Plaintiff's right to discontinue the action pursuant to CPLR Rule 3217(a)(1), prior to service of pleadings.

This action was commenced by the filing of a Summons with Notice for a Divorce on May 16, 2006. No complaint was served either with the Summons with Notice or at any subsequent time. During the preliminary conference held on December 5, 2006, a preliminary conference order was negotiated between the parties which includes a stipulation that: "the Parties agree that Defendant shall proceed with [an] uncontested divorce against Plaintiff on the grounds of constructive abandonment". The signatures of each of the parties and their attorneys immediately follow that stipulation, on the same page of the preliminary conference order.

Some months after the preliminary conference, the Defendant made an application for pendente lite relief seeking over $300,000 as interim counsel fees, real estate appraisal fees and forensic accounting fees. That application was withdrawn and is now resubmitted. Shortly after receiving Defendant's fee application, the Plaintiff filed a Notice of Discontinuance pursuant to CPLR Rule 3217(a)(1). The Defendant seeks to vacate the discontinuance and to have the case restored.

In support of her motion, Defendant asserts that Plaintiff's stipulation, in the preliminary conference order, that "Defendant shall proceed with an uncontested divorce on the grounds of constructive abandonment," constitutes a binding waiver by Plaintiff of his right to discontinue the action pursuant to CPLR Rule 3217(a)(1). There is precedent for the enforcement of such a stipulation in Pappas v. Pappas, 294 A.D.2d 121, 171 N.Y.S.23d 404 (1st Dept' 2002), where the Appellate Division, First Department held that a stipulation to the effect that the issue of fault was resolved, was binding on a record showing that the Plaintiff had been represented by counsel who had clear authority to sign open-court stipulations, that the Plaintiff was present and participated in discussions on the resolution of the issue of fault at time the stipulation was made. Similarly, in the present case, the Plaintiff was present in court, with counsel, during the preliminary conference and both Plaintiff and his lawyer signed the page containing the stipulation indicating that fault was resolved. However, the Pappas decision does not address the present circumstance where a notice of discontinuance was filed after the stipulation waiving grounds for the divorce was made but prior to the service of a complaint.

The Plaintiff relies upon his absolute and unconditional right to discontinue the action prior to service of a complaint without seeking judicial permission, pursuant to CPLR Rule 3217(a)(1), as recognized by the Court of Appeals in Battaglia v. Battaglia, 59 N.Y.2d 778, 451 N.E.2d 472, 464 N.Y.S.2d 725 (1983). See also, McMahon v. McMahon, 279 A.D.2d 346,348, 718 N.Y.S.2d 353 (1st Dep't 2001).

In Giambrone v. Giambrone, 140 A.D.2d 206, 208, 528 N.Y.S.2d 58 (1st Dep't 1998), the First Department held that the plaintiff's statutory right to discontinue the action, prior to service of a responsive pleading, is unconditional and that the court should not invoke its equitable powers absent special circumstances indicating deviousness, trickery or fundamentally unfair conduct. Here, Defendant offers no evidence of such special circumstances while Plaintiff explains his conduct in discontinuing the action as an attempt to promote a marital reconciliation with the Defendant.

Defendant asserts that Battaglia, McMahon, Giambrone and that line of cases are inapposite because they did not involve circumstances where resolution of the issue of fault, including how the parties would proceed, had been stipulated in a preliminary conference order. Defendant asserts that the stipulation as to grounds constitutes a waiver of the right to discontinue the action. "Waiver is an intentional relinquishment of a known right and should not be lightly presumed." Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793 (1988). See also, Silverman v. Silverman, 304 A.D.2d 41, 46, 756 N.Y.S.2d 14 (1st Dep't 2003); Ess & Vee Acoustical & Lathing Contractors, Inc. v. Prato Verde, Inc., 268 A.D.2d 332, 702 N.Y.S.2d 38 (1st Dep't 2000).

In this case, there is no evidence of a clear manifestation of an intent to waive a known right, i.e. the right to discontinue the action under CPLR 3217(a)(1). The stipulation was silent as to that rule. There is no evidence that the Plaintiff understood that his signature below the stipulation as to grounds would act as a waiver of his rights under CPLR Rule 3217(a)(1). Under the circumstances of this case, there is no basis to find that the Plaintiff intentionally and knowingly waived his right to discontinue the action prior to the filing of a responsive pleading. Therefore, the motion to vacate the Notice of Discontinuance must be denied.

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.

Sorry for the delay in between posts, I will be updating this blog more consistently in the future. Here is a recent article in the New York Law Journal where Judge Lebowitz of Queens County Court of Claims and Acting Judge of the Supreme Court comments on the confusion that landmark decision in O'Brien v. O'Brien has created. Judge Lebowitz also comments on how New York is the only state in the country that still requires grounds for a divorce, which in practice only causes people to tell lies on the stand. This article makes several interesting points, feel free to add what you think below.

New York Law Journal
Divorce, New York Style
By Jeffrey D. Lebowitz
June 29, 2009

(The following article is based on a speech delivered by Judge Jeffrey D. Lebowitz to the Family and Divorce Mediation Council of Greater New York on June 11.)

Congratulations on the 25th anniversary of the Family and Divorce Mediation Council of Greater New York. It is my feeling that this organization is more relevant, more meaningful today to the practice of Family Law than it was 25 years ago.

When this group started, equitable distribution had just been enacted, the courts and lawyers were feeling their way and the body of law that has since developed was in its nascent stage. Today, in my opinion, after almost six years in the Matrimonial Part and 16 years as a judge, the practice of Matrimonial and Family law is, not to mince words, a mess.

While New York is a glamorous place to get married, it is a tough place to get divorced. We have created such elaborate laws and concepts that only the most collegial of divorcing couples and attorneys can navigate the morass we now know as matrimonial practice. Unfortunately, if one or both sides insists on litigating, or one or both lawyers do not see the benefit of early mediation or settlement, we are off to the races.

The litigants. Divorcing couples are in a sensitive and stressful time in their lives. Research has shown that other than the death of a spouse or close family member, the most trying time in a person's life is when they are going through a dissolution of their marriage.

That can never change. Those emotions will always be in the case. That is where mediation can be of tremendous value. The ability to collaboratively resolve cases, the opportunity for the litigants to feel that they have a say in the dissolution of their marriage, that someone is listening to them about what has occurred at the hands of the other party, all go a long way toward prompt settlement and perhaps more importantly, a lasting resolution.

The courtroom is not a place for catharsis or open ended speeches by litigants. I have little time to hear out litigants in depth, not only because of time constraints, but because I believe they are inimical to the settlement of a case, opening up a so-called Pandora's box of ill will that can only be reciprocated by similar statements from the opposing side.

The state of the law. We have developed in New York theoretical concepts that no other state has seen fit to follow. When Equitable Distribution began in 1980, it was a concerted attempt to help the non-monied spouse, usually, the wife. It was well intentioned and necessary. As long as the distribution of marital property was awarded by title, the non-titled, non-monied spouse was at a severe disadvantage, but as with many things, when a wrong is righted, we often swing the pendulum too far the other way. This is where we are today in matrimonial practice.

Perhaps the most glaring example is the concept of enhanced earnings. Enhanced earnings is nothing more than a crap shoot based on facts and circumstances that may or may not occur, and unlike maintenance or child support, is not subject to modification if those circumstances do not bear out. Using a variety of discount rates and different methodologies to calculate enhanced earnings only add to the problem.

We are starting to see the courts rebelling against these concepts. The most recent cases seem to put a cap on enhanced earnings at around 20 percent, and often as little as 10 percent, unless it is a case similar to O'Brien, (O'Brien v. O'Brien, 66 NY2d 576, 498 NYS2d 743 (1985)), which started this whole fiasco, where the non-license holding spouse puts a license holding spouse through school, helps him or her study, brings in the money, feeds the kids, puts them to sleep. Then maybe 50 per cent is warranted.

The answer is simple, eliminate enhanced earnings and provide a stream of income that is not subject to termination just because the non-license holding spouse remarries or dies. A stream of income will take into account all the variables that enhanced earning evaluators can only guess at in reports and will reflect the real world value of the asset over a specified period of time.

Appreciation of separate property is a tempest in a teapot. We have to establish the value of the property at the commencement of the marriage and of the matrimonial action. Then we need to look at how much of the appreciation was subject to market forces, so-called "passive appreciation," which is not subject to distribution, and the amount of appreciation that is a result of the contributions of each side. We then have to decide how each contribution is valued in terms of equitable distribution.

I suggest that the concept of appreciation of separate property, which is statutory in nature, should be eliminated and replaced by either providing appreciation of separate property regardless of contribution, to be subject to equitable distribution, or let separate property remain separate property during a marriage regardless of appreciation. Take your pick, but a bright line rule will help avoid the confusion that now ensues between the appellate departments and the trial courts in dealing with the issue of appreciation of separate property.

Grounds. Then, of course, there is the issue of grounds, where again, we lag pitifully behind all 49 states. This great cosmopolitan State of New York still requires people to fib on the stand about establishing their grounds. The Assembly has held this bill captive and now is trying to barter guidelines for maintenance similar to that for child support in return for agreeing to establish no-fault divorce. Guidelines for maintenance will only complicate matters since, unlike child support, maintenance is not always awarded and, in fact, is becoming a vanishing issue in the era of two income earning families.

I feel I am in the company of similarly minded individuals, who believe the best interest of the litigants is served by a prompt resolution in a fair and reasonable manner. However, we still have many lawyers who look at a case and don't think about settlement first. If they are experienced, they understand the parameters of a fair settlement from the outset of the case. Unfortunately, there are still a significant number of lawyers who view litigation as a "cash cow" and as long as they litigate the more that they can milk that cow.

That's why, you and I, and others similarly situated have taken a step forward and concluded that the litigation process, the adversarial process, in many cases is inimical to the best interest of parties.

I am hopeful that over time, more judges and attorneys will understand that alternatives to litigation, such as mediation and arbitration, should become the vehicle of first resort, not the last, to resolve matrimonial matters. Only then can we begin to improve the harrowing experience of divorce in this state.

Mediation Pilot Program: Queens County is introducing a pilot mediation program. The administrative judge's office will be accepting applications for mediators until the end of June. We have rigorous standards that must be met before one is even eligible to apply. It is very important that we have the most experienced mediators available. If we do not and this program fails to get off to a successful start, we may be doomed to failure. Once all resumes are submitted, a relatively small number of mediators will be selected for the initial phase of the program.

We don't know how many cases will be sent to mediation. We don't know if it will be eventually used by the other matrimonial judges in Queens County. If more cases are sent to mediation and more judges become involved, there is a reasonable chance additional attorneys will be selected to join the panel.

Generally speaking, the program will allow a judge to send any case out to mediation at any point in the litigation. At the first mediation session, there will be no charge. At the conclusion of the initial session, if the litigants want to continue with mediation, financial arrangements will be worked out with the mediator, with a fee cap of $200 per hour. The pro rata obligations will be fixed by the parties or the court.

The matter will, thereafter, be adjourned for mediation. The content of the mediation is privileged and will not be brought to the attention of the court. However, within 75 days, the matter will be returned to the court where we will continue litigation or place a settlement on the record in keeping with the mediation agreement. Despite the 75 days set forth in our protocol, I will not concern myself with an arbitrary adherence to the protocol. If I am told that mediation is working but more time is needed, I will provide the parties with a reasonable period of time to work out their differences.

Any matter that is unresolved may be subject to mediation, whether it be financial, custodial or grounds.

We have taken steps to avoid situations where there is a gross imbalance in the respective positions of the parties, financial or emotional, to avoid the mediation process. It is also agreed that if there are real issues of domestic violence, then mediation may not be appropriate.

I believe that this pilot program is in keeping with your organization's mission statement, "to increase public awareness in the use of family and divorce mediation."

I look forward to all of us continuing to play a meaningful part in mediation throughout this city and state as we collaboratively attempt to clean up the mess I have come to think of as "Divorce, New York Style."

Jeffrey D. Lebowitz is a judge of the Court of Claims and Acting Supreme Court Justice in Queens County assigned to the matrimonial term. The opinions expressed in this article are his own.

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.