Close up of hebrew and english Bible.

Absent agreement of both parents, neither parent sharing joint legal custody nay cause or allow the children to receive any religious sacrament or education. So held Supreme Court Nassau County Justice Jeffrey A. Goodstein in his January 13, 2017 decision in DK v. AK.

The parties had two children together (currently ages 6 and 5). The parties were divorced in 2016 by a judgment which incorporated, but did not merge, the terms of their 2015 Stipulation of Settlement. Pursuant to the Stipulation, the parties shared joint legal custody of the children, with the mother having residential custody. Here, the father had brought this post-judgment motion for an order prohibiting the mother from causing or allowing the children to be baptized, or to receive any religious sacrament, or a religious education in any faith other than Judaism, without his written consent.

The father argued that there had been no issue with regard to the parties’ joint custodial relationship until the mother’s decision to baptize the children. The father further argued that the children were raised in the Jewish faith, as was allegedly agreed upon by the parties prior to their engagement. The mother acknowledged that the parties’ son had a traditional Bris, performed by a Mohel (performer of ritual circumcisions). The mother also acknowledged that the parties had a naming ceremony for their daughter although she contended that it was the paternal grandfather who wanted the baby naming and scheduled it, so she took over planning it.

The father further alleged that prior to their separation, the parties “actively” raised the children in the Jewish faith by celebrating the Jewish holidays. He contended that the children now accompany him to synagogue when he attends. Further, he set forth that a few months ago, the children started attending Hebrew school, with the mother’s consent.

The parties recently attended a mediation session when the mother wanted to bring the children to Catholic events. As reported by the parties, the mediator took the position that the children could be raised as both Jewish and Catholic, to which the father strongly disagreed. Shortly after the mediation session, the mother notified the father of her intent to baptize the children and invited him to attend the ceremony. The father further argued that a baptism is tantamount to changing the children’s religion without his consent.

Continue Reading No Religious Sacraments To Be Administered To Children, Absent Consent of Both Joint Custodial Parents

Ketuba- is a special type of Jewish prenuptial agreement. It is considered an integral part of a traditional Jewish marriage, and outlines the rights and responsibilities of the groom, in relation to the bride. Nevertheless, there is no agreement in modern times as to the monetary worth of the ketubah, and in practice it is never enforced

Imposing a higher maintenance obligation on an Orthodox Jewish husband who refused to give his wife a religious divorce (“Get”) would violate constitutional protections. So held Orange County Acting Supreme Court Justice Catherine M. Bartlett in the January 13, 2017 decision in Masri v. Masri.

The parties married in 2002, separated in 2007 and have lived separate and apart since that time. They have 14 and 11 year-old children, the older one being disabled. The wife commenced the present action for a no-fault divorce March 8, 2016.

Since the separation, the wife has attempted without success to secure from the husband a “Get”, which she requires under Jewish law in order for her to remarry. The husband refused to participate in proceedings in 2012 before a Rabbinical Court, asserting that the wife had waived her right to rabbinical arbitration by previously going to a secular court (the divorce judgment in which had been vacated). The Rabbinical Court advised the husband that he had no power to decide the issue of the wife’s alleged waiver on his own, and was required to arbitrate that issue before the Rabbinical Court. The husband refused to comply, whereupon the Rabbinical Court declared him to be a “Rabbinical Court evader.”

Continue Reading Unconstitutional to Consider Husband’s Refusal to Give Religious Divorce (Get) When Granting Support

We are not moving croppedFor the second time this month, the Second Department prevented a wife from relocating with the children “locally” when the move would have limited the husband’s substantial involvement in the children’s daily lives. In its January 18, 2017 decision in Lipari v. Lipari, the appellate court affirmed the prohibition of a mother’s proposed relocation from Valley Cottage, in Rockland County, to Rye, in Westchester County, a distance of 17 miles. Only a week earlier, in DeFilippis v. DeFilippis, the Second Department prevented a wife from relocating from Floral Park to East Hampton [last week’s blog post].

In Lipari, under the parties’ divorce settlement the parties shared joint legal custody of their two children, with the mother having primary residential custody. The father had overnight visitation on alternating weekends and certain overnight visitation with the children during each week and during certain school breaks and holidays. With the mother remaining in the Valley Cottage marital residence, the father rented a two-bedroom condominium approximately five minutes away.

Continue Reading Mother Cannot Relocate With Children 17 Miles From Valley Cottage to Rye

We are not moving croppedIn its January 11, 2017 decision in DeFilippis v. DeFilippis, the Appellate Division, Second Department, prevented a wife from relocating with the children from Floral Park to East Hampton, a move that would have curtailed the husband’s involvement in the children’s daily lives, school, and extracurricular activities.

The wife commenced this action for divorce. While the action was pending, the wife sought to relocate. The wife claimed that the move would enhance the children’s lives economically, emotionally, and educationally.

The husband opposed the relocation, contending that if the children moved to East Hampton he would be unable to remain involved in their daily lives, school, or extracurricular activities, as he would see them only on the weekends.

Nassau County Supreme Court Justice Hope Schwartz Zimmerman granted the wife’s relocation motion, and the husband appealed. The Second Department reversed (the appellate court had stayed the relocation order pending the appeal).

Continue Reading Mother Denied Relocation With Children From Floral Park to East Hampton

Frustrated Father trying to appease daughter

The parties, who were never married, have two children together, the younger of whom is now 17 years old. The parents have been litigating custody and visitation issues for almost the entire lives of their children.

In its December 28, 2016 decision in Matter of Sullivan v. Plotnick, the Appellate Division, Second Department, addressed a family’s relationships, concluding (?) more than a decade of litigation. By consent orders in 2004 and 2005, the mother had physical custody of the children. In 2007, the mother petitioned to modify the earlier-agreed visitation schedule. Without a hearing., the Family Court granted the father’s motion to dismiss the mother’s petition. On a prior appeal, the Second Department reversed that order and remitted the matter for a hearing. In 2010, the father filed a petition to modify the custody and visitation orders so as to award him sole custody of the children, alleging that the mother interfered with his parenting time.

In July 2010, while these proceedings were pending, the children’s paternal uncle contacted the children and revealed that the father had been previously married, and that they had two older siblings. The children were upset that the father had withheld this information and refused to visit or communicate with the father.

In an attempt to rehabilitate the relationship between the father and the children, in 2010 the Family Court directed therapeutic visitation. The father subsequently filed two motions alleging that the mother had violated that direction. He also filed petitions to vacate a 2007 support order, and sought sole physical and legal custody on the basis of the mother’s alienation. After a hearing, by order dated September 6, 2011, the Family Court found that the mother willfully violated the orders directing therapeutic visitation.

Continue Reading Children Refuse to See Father; Child Support Suspended

In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

  • awarded the plaintiff custody of the parties’ child;
  • directed the defendant to pay child support in the sum of $293.20 per month;
  • awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and
  • awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

Continue Reading The Burden At Trial to Change Temporary Custody Award; Counsel Fees Where Rules Not Followed

In its November 23, 2016 decision in Gardella v. Remizov, the Second Department upheld an improperly-executed 2002 postnuptial agreement on the basis of ratification, and a 2006 postnuptial agreement alleged to be unconscionable, but sent the matter back to the trial court for financial disclosure and an inquiry to consider the parties’ 2010 separation agreement.

The parties to this matrimonial action were married in 2000. In October 2002, the parties entered into a postnuptial agreement which provided, among other things, that the marital residence and the wife’s private medical practice were the wife’s separate property. In 2006, the parties entered into a second postnuptial agreement which provided that four parcels of real property in Florida acquired by the parties during the marriage had been purchased with the wife’s separate property, and further addressed the distribution of those four parcels in the event of a divorce.

In 2010, the parties entered into a separation agreement, which addressed, inter alia, issues of maintenance and equitable distribution of the parties’ respective assets. At the time, the wife, a neurologist, was earning approximately $600,000 per year, and the husband, a wine salesman, was earning approximately $40,000. The separation agreement provided, among other things, that the husband would have no interest in any of the assets acquired during the parties’ marriage, including six parcels of real property, the wife’s partnership interest in a neurological practice, and the wife’s bank and brokerage accounts. The husband also waived his right to spousal maintenance. The husband was not represented by counsel when he executed the separation agreement.

Continue Reading Upholding Marital Agreements: 2+ out of 3

Under Family Court Act §413-a, a party receiving public assistance, or making use of the State’s Child Support Enforcement Services, may request that the Support Collection Unit (“SCU”) review the order for an adjustment of a child support order in the event that there is a 10% change in the cost of living. The SCU, calculates the new order and mails it to the parties. If there is no objection, the adjusted order becomes final without further review by a court.

Either party, however, may object to the cost-of-living adjustment by making an application to the court. Where an objection is timely filed, the cost of living adjustment does not take effect, and after a hearing, the court may issue a new order of support determined in accordance with the Child Support Standards Act, or make a determination that no adjustment is appropriate. Notably, “Any order of support made by the court under this section shall occur without the requirement for proof or showing of a change in circumstances.” F.C.A. §413-a(c)

In Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115, 786 N.E.2d 14 (2003), the Court of Appeals determined that F.C.A. §413-a authorizes the Family Court to review and adjust the underlying support order in accordance with the C.S.S.A., and not merely to decide whether or not the COLA amount should be applied.

Continue Reading Reconciling SCU COLA Adjustments With Modification Cases

Social Security CardTwo decisions this month of the Appellate Division, Second Department, tied the termination of post-divorce spousal support (“maintenance”) to a specific ages: 65 in Duval v. Duval; and 62 in Sansone v. Sansone.

In Duval, after 20 years of marriage, the wife commenced her action for divorce. The decision reports that “both parties are 56 years old.” During the course of their marriage, the parties had two children, one of whom was emancipated. In 1992, shortly before the birth of their first child, the husband became the sole source of financial support for the family. The wife was a stay-at-home mother prior to the commencement of the action. In approximately 1999, the wife’s father, an insurance agent, retired, and the husband took over his father-in-law’s insurance agency [how important is this fact to the decision?].

Continue Reading Tying Maintenance to Social Security

Calulator on 100s 6 redUntil the amendment of the Child Support Standards Act effective January 24, 2016 (D.R.L. §240[1-b][b][5][iii][I]; Laws of 2015, c. 387, §3), the rule had been that when a divorce court awards maintenance to a spouse, the amount of annual maintenance is to be deducted from the payor’s income when calculating parental income. However, for those same C.S.S.A. calculations, maintenance was not to be added to the recipient’s income. Thus, for example if in its award, a divorce court awarded a wife (the custodial parent) who had no other income $60,000 per year in maintenance from a husband earning $250,000 per year, the husband’s income for C.S.S.A. purposes would equal $250,000 less FICA, Medicare, and the $60,000 in maintenance, but the wife’s income would still be $0.

The recent amendment changed that anomaly. Effective January 24, 2016 , the alimony or maintenance actually paid or to be paid to a spouse is to be added to the income of the recipient when calculating parental income.

Although it does not expressly so state, it has been held that this amendment is to be applied to cases commenced on or after January 24, 2016, and not to cases commenced before that date. R.I. v. T.I., 2016 NY Slip Op 50664(U), 51 Misc. 3d 1215(A) (Sup. Ct. Kings 2016); C.G. v. F.G., 2016 NY Slip Op 26220, 53 Misc. 3d 229, 235-36, 34 N.Y.S.3d 882, 887-88 (Sup. Ct. Richmond 2016).

Until the amendment, the rule had been that it was error to include maintenance awards as income to the recipient when computing the child support obligation. Krukenkamp v. Krukenkamp, 54 A.D.3d 345 (2nd Dept. 2008); Wallach v. Wallach, 37 A.D.3d 707, (2nd Dept. 2007); Shapiro v. Shapiro, 35 A.D.3d 585 (2nd Dept. 2006); Lee v Lee, 18 A.D.3D 508 (2nd Dept. 2005).

In its November 9, 2016 decision in Castello v. Castello, the Second Department ruled differently. In that case, the court modified a 2013 divorce judgment by changing the child support calculation.

Continue Reading The Effect of Spousal Support on Child Support: Did the Second Department Jump the Gun?