Robert G. Smith, PLLC

April 2016 Archives

Child support rules in New York

It is very common for children today to be raised by one parent. A quarter of children under the age of 18 are raised without a father, and 40 percent of children are born to mothers who at the time are single. This means that child support can be an essential part of ensuring that a parent is able to support their children, so it's important for many parents to know how the law handles child support.

No More "Uncle Daddy". Father's Rights Are Now Correctly Embraced At The New York Courthouse.

To a great and gratifying extent, Father's Rights have been embraced in New York City divorce. Officially, there has never been any preferential right to custody in either parent.  Nowadays, when properly represented by competent New York child custody counsel,  the father who has been the breadwinner does not have to be relegated to become "Uncle Daddy".   For New York City divorce, there are specialized matrimonial parts at the courthouse, staffed with well trained Justices who well understand New York divorce.  The allegation of domestic violence, which can become the weapon of choice to advance the agenda of the angry spouse or unscrupulous adversary, of course remains an ominous peril in New York City child custody cases.  One of the very first lectures I have with every child custody client of either gender is to inculcate the importance of perspective: the judge, the police department, each parent's family of origin, indeed everyone not involved in the New York child custody case, does not have the divorcing parent's intense perspective or interest in the child custody case.  No judge wants to see her or his picture plastered on the front page of a tabloid in the unfortunate event, as happened recently, of a profoundly disturbed parent who jumps of a roof top with a child, or, as happened back in the 80s, of an angry lover who makes bail, gets out of jail and murders a paramour.       Of course there is a stereotype that one of the parents in the New York City child custody might be driven by anger or sloth.  But nowadays the convention is for joint legal custody and at least one weekday sleep over, while splitting summers and other vacations.  Nowadays, the prevailing sentiment among the New York divorce courts and mental health professionals is to limit and isolate against the parent who denigrates the other parent.   It is also necessary to face facts in New York child custody cases:  Of course the parental access schedule should not give one parent all of the homework time and the other parent all of the weekends.  So a parental access schedule that affords each parent alternating weekends makes eminent good sense, and is virtually required. The New York divorce courts also understand that neither parent gets to control the information.  In the internet age school communication and even homework schedules are available online with a password.  So I remind all of my clients that they have to be proactive.  Many of the so called "information problems" that crop up during the New York divorce case have benign origins in the at-the-time sensible division of authority that prevailed in the pre-divorce, intact household.  In all likelihood one of the parents made the doctor's appointment and/or took the kids to the dentist.  But you are getting a divorce now.   Don't embarrass your child or humiliate the other parent with officious intrusions with third parties.  It is of course also sad and still true that you know in your heart that the other parent may well drag her feet or be less than responsible in the area of cooperation.  But as Justice Antonin Scalia admonished liberals who complained about Bush v. Gore: get over it.  Get over it because you have to.  Not because it is right.  The policy is best-interests-of-the-children, not best-interests-of-the parents.  That means that for the benefit of your child you are well advised to resist the temptation to curse the darkness and instead to always be ready to light a candle.  Your child requires and deserves that you turn the other cheek.  Who knows, you may feel differently about the situation later, especially when you get to pat yourself on the back for enabling your child's great success. 

More Mercy From The Appellate Division, First Department In The Gottlieb Case. Sanctions Award Slashed By $ 297,480.73

The other aspect  of the trial court's monetary sanctions awards in Gottlieb v. Gottlieb, was decided by the Appellate Division, First Department on April 21, 2016.  

Fathers still facing stereotypes in custody battles

Some fathers in New York who are going through a divorce may find that the stereotype that divorced fathers are lazy or even abusive still exists. Fathers might seek joint physical custody and find that courts still favor mothers, and mothers, concerned about losing control of their children, might fight to block fathers' access. As a result, some devoted fathers might find themselves facing a visitation schedule that permits only two weekends monthly with their children.

Frye Objection Overruled In Child Custody Case. Appellate Division Affirms Trial Court's Rejection Of Two Eschbach Factors: Primary Care Giver And Keeping Siblings Together.

    New York divorce lawyers should be aware of the child custody decision in the case Douglas H., v. C. Louise H., which was decided by the Appellate Division First Department on April 13, 2016.   Both an overruled objection to the trial court's rejection of the so-called Eschbach policy of keeping siblings together, and an overruled Frye objection to an expert report, were affirmed after an 18-day evidentiary hearing which awarded each parent custody of one child.      Although the trial court found that while both parties have "serious deficiencies as parents," the father was found to be the one more likely to make decisions that are appropriate for the son, who was diagnosed as being on the autism spectrum, to a therapeutic boarding school, which the mother opposed, and would use an appropriate educational consultant, in light of the child's need for intensive behavior modification." The Appellate Division affirmance did not disclose the precise analysis by the trial court beyond stating that  "the record supports the [trial] court's determination that the child and his sister should be separated.."     The trial court was also held to have properly denied the mother's motion to exclude the forensic report in the child custody trial based upon the absence of a reference to professional literature and reliance upon hearsay, holding that the former is not required and that the primary sources of the evaluator's conclusions are his interviews with the parties and his own observations.      In New York child custody cases the trial record is usually complemented by a forensic mental health evaluation of the parties and the children, by a court appointed expert who has interviewed each of the parents and the children in the case, as well as collateral contacts, such as grandparents, aunts, uncles, neighbors, and teachers.  Often, the collateral information that these individuals provide finds its way into the testimony and written report of the forensic mental health expert's report, presumably to support the expert's conclusion as to which spouse has better parenting skills or whether there are dangerous or negative behavioral or personality traits that the court should be made aware of.  If those collateral sources or third parties are not present in the courtroom to be scrutinized and to be cross-examined, the entire value of the expert's conclusions become arguably unreliable and unfair to the children and to one or both of the litigants.          Child custody lawyers in New York have observed the trend of robust challenges to certain aspects of the "science" of mental health and the dogma that surrounds it.  This is understandable.  The empirical evidence related to psychological testing is a relatively recent phenomenon in the mental health field.  Traditional Freudian analysis did not conduct surveys related to psychological testing, and strict Freudian analysis is not based upon such testing.  Indeed, we cannot conduct scientific experiments on human babies, nor do we conduct intrusive scientific experiments on human beings.  Much of what has heretofore been considered accepted wisdom or learning in that field was not previously the subject of empirical verification.  Courtroom challenges regarding the validity of certain types of psychological testing, including testing involving empirical evidence based upon samples and studies,  has seen a marked increase in the   reported cases.     New York child custody lawyers all know that in New York the evidentiary rule is that the opinion of an expert witness is admissible in evidence when the matter of inquiry requires special experience or special knowledge, which is beyond the within range of common experience or common knowledge.  New York follows the  Frye test, from the 1923 federal case, which essentially asks: "Is this particular testing methodology accepted by more experts than it is rejected by?"  The Federal Rules of Evidence, on the other hand, utilize the so-called  Daubert test, which has four parts: 1) whether the underlying methodology and principles of the testimony have been or can be tested; 2) whether the principles and methodology have been subjected to peer review and publication; 3) whether the known or potential error rate is acceptable; and 4) whether the underlying principles have obtained general acceptance in the scientific community.     New York has been moving towards a Daubert Test-type formulation when evaluating expert reports and opinion evidence, but not yet.  The opposing litigant must first request a Frye hearing before the court permits an expert to testify; and the proponent must meet the challenge to the methodology used by the expert. A Frye hearing is necessary when an expert seeks to introduce a novel theory.  Frye is less concerned with the reliability of the expert's conclusions, than establishing that the expert's deductions are based on principles that are sufficiently established to have gained general acceptance as reliable.     In the area of opinion evidence, experts have been permitted to base their opinions on facts which are not contained in the trial record.  Despite the asserted ability to rely on such  "professional credibility", the expert's opinion often rests upon hearsay: statements from people who are not in the courtroom and cannot be cross-examined.  Thus, while the expert's opinion is a necessary element of many cases, when it is built on data that cannot be subject to cross-examination, lawyers have increasingly succeeded in challenging the expert's opinion.      People v. Case, 114 A.D.3d 1308, holds that an expert's underlying data is subject to a hearsay objection.     In People v. Lin, 46 Misc.3d 20 (App. Term, 2014)  a criminal conviction for driving while impaired was reversed because the prosecution did not provide testimony by the person who administered the breathalizer test.  That defect was held by the Court to violate the defendant's constitutional rights under the confrontation clause .  Crawford v. Washington, 541 U.S. 36 [2004].     In People v. LeGrand, 8 NY3d 449 (2007), the New York Court of Appeals held that "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for the trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of the defendant; (2) based on principles that are generally accepted within the relevant scientific community; (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.     In People v. Mazariego, 117 A.D.3d 1082 (2nd Dept. 2014) the court approved an expert to report on the history of gangs and use of hand signals.      In People v. Qualress, 123 A.D.3d 1060 (2nd Dept. 2014) the Appellate Division held that it was proper for the trial court to admit into evidence expert testimony with respect to the quantity and packaging of crack cocaine carried by someone who sells drugs, as opposed to someone who merely uses them, since the expert testimony was beyond the ken of the average juror.          Against this backdrop of developing law, it is perhaps disappointing that Douglas  H. V. Louise H. provides so little guidance for New York child custody lawyers.  The undetailed announcement of the conclusion is akin to the home plate referee in a baseball game saying that the batter is out because he was called out.   The United States Supreme Court once observed that in the Courts, like baseball, there are no ties.  There can however, be situations in which less harm is done to family members in a child custody case because the expert's opinion is required to be objectively sound and reliable in a manner that is articulated in a more detailed way.

Amount Of Permanent Spousal Maintenance To Be Doubled Unless Husband Provides Religious Divorce Within Sixty Days. Constitutionally Permissable Intrusion On Religious Freedom Or Sui Generis S-O-B Rule ?

New York divorce lawyers should take heed of Mizrahi-Srour v. Srour, decided by the Appellate Division, Second Department on April 13, 2016.  It was an appeal after trial.  The wife granted sole custody of the parties' children, spousal maintenance of $100 per week for five years, which would be increased to $200 per week if the husband  did not provide a religious divorce ("Get")  to the wife within 60 days, child support of $401.21 per week, which would be reduced to $370 per week if the spousal maintenance increased to $200 per week,  support arrears of $47,324, distributed 70% of the marital assets to the wife and awarded a $ 70,000 counsel fee to the wife's attorneys.

Parental Access Schedules Are Not Fixed In Stone

In arriving at a parental access schedule the concept begins with the goal of protecting and nurturing the children.  The schedule should be fair to both parents and healthy for the child, who is not getting a divorce.  As the adage goes: future relationships must persist despite the exacerbation of the divorce. Cutting edge mental health science teaches us that the child's ability to accommodate competing loyalties  - - parents who do not like each other but who both love the child - - does not fall into place until the child is in her or his early 20s.   With that in mind, divorced and separated parents in New York divorces should be steadfast in their committment to minimizing the impact of their breakup on their children. This often requires creativity for both parents to maintain meaningful relationships with the children in different households.

Man ordered to pay child support for baby that is not his

New York couples who share a child but are no longer together will often face the reality of one of the parents having to pay child support. Some of these situations can be more complicated than others with unique issues coming to the forefront. Such is the case with an Iowa man who is being declared responsible for the financial needs of a child that is not his.

Child Support Obligations And Contract Interpretation

In Fleming v. Fleming, decided by the Appellate Division, Second Department on March 30, 2016, the parent's written settlement document stipulated that the father would pay child support until the children reach the age of 21, or the completion of "four (4) academic years of college," whichever occurred last, but in no event beyond the school year of the child's 23rd birthday. The child obtained a bachelor's degree in three years before the age of 23 and continued to attend college. The Appellate court held that the fair meaning of the language "four (4) academic years of college," expressed the parties' intent to describe a four-year undergraduate course of study leading to a bachelor's degree; and that there was "no evidence in the record to suggest that the parties intended this language to mean graduate school."  The fact that the child was able to obtain the bachelor's degree in three years instead of four years did not, in that court's opinion,  change the "plain meaning" of the contract language, or alter what the Court described as the parties' "reasonable expectations" as to the intent of the contract's terms.

Relocation From Manhattan To Katonah (45 Miles) Granted. Attachment Trumps Stability. Trial Court Reversed On The Law. Tropea Lives.

In the landmark case Matter of Tropea v Tropea, 87 NY2d 727 [1996]) the New York Court of Appeals held that in a custodial relocation case a court should give weight to all relevant factors, including: (1)  each parent's reasons for seeking or opposing the move; (2) the quality of the relationship between the child and the parents; (3)  the impact of the move on future contact with the noncustodial parent; and (4) the degree to which the custodial parent's life may be enhanced economically, emotionally and educationally by the move.  

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Robert G. Smith, PLLC
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