Increasingly, courts have closely examined the specific decision-making roles of each parent, whether or not the parties share joint custody or one parent is awarded sole custody.

The general rule is that joint or shared custody, requiring both parents to agree on decisions, is inappropriate where parents have demonstrated an inability or unwillingness to cooperate in making decisions concerning their children.

In its April 23, 2014 decision in Thorpe v. Hamoet, the Second Department affirmed the determination of Kings County Family Court Judge Anthony Cannataro to award a mother sole medical and educational decision-making authority, and to otherwise award both parents joint decision-making authority with respect to all other custodial matters outside the spheres of medical and educational needs.

Although it was evident to the appellate court that there was some antagonism between the parties, it was also apparent that both parties generally behaved appropriately with their child and in a relatively civilized fashion toward each other. Furthermore, there was no evidence that the parents were so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child.

Sometimes defining sole or joint custody differently, courts have found ways to erode all-or-nothing awards even when parents are antagonistic towards each other. Judges seem comfortable splitting decision-making into distinct areas; giving parents separate “zones” or “spheres” of responsibility.

Thus, in addition to education and medical areas, Courts have granted one parent decision-making authority in the spheres of religion, hygiene, mental health, dentistry, summer activities, extra-curricular activities, weekend activities, social events and finances.

In this fashion, both parents may remain more actively involved in their children’s lives. Still further, if both parents must live within this balance of power, détente between the parents is encouraged. Indeed (continuing the political metaphor), each parent may develop a policy of openness (glasnost), promoting consultation, compromise, and more meaningful exchange of information.

In all events, it would seem that the parents, themselves, are in the best position to allocate the particular subjects as to which there will be required consultation, or required agreement, or specifically-allocated final authority.

Litigation would not seem the best-suited forum for reaching an agreement on these matters. Alternate Dispute Resolution (ADR), whether through mediation or the Collaborative Divorce Process, seems a far better choice.

In Thorpe, Meredith A. Lusthaus, Coffinas & Lusthaus, P.C., of Brooklyn, represented the mother. Francine Shraga, of Brooklyn, represented the father.

Absent a court order specifying which parent is entitled to make educational decisions, the New York City Department of Education will follow the instructions of the primary physical custodian.

The policy was upheld in the October 22, 2013 decision of the First Department in Jennings v. Walcott. The appellate court reversed  the determination of  Supreme Court, New York County Justice Alexander W. Hunter, Jr., which had declared arbitrary and capricious the Department’s policy of deferring in educational decisions to the parent with primary physical custody. Justice Hunter had ordered the Department to include the father as a joint legal guardian on his child’s school file.

The policy of the Department of Education is to take direction from the parent with primary physical custody where, as here:

the divorced parents of a student have joint legal custody of the student;

the parents are unable to agree on a decision as to the student’s education; and

there is no court order specifying who is entitled to make educational decisions.

The Department had adopted this policy to avoid becoming entangled in custody disputes.

In Jennings, the First Department held that given the options available to the Department for resolving such a disagreement, it could not be said that the policy was without a rational basis in the record. It was not, therefore, arbitrary and capricious.

The appellate court pointed out that this policy did not affect the father’s legal rights as a parent with joint legal, but not primary physical, custody. The father was free to pursue a modification of his judgment of divorce to provide for joint decision-making as to the child’s education.

The opinion did not recite whether or not any stipulation of settlement incorporated into the father’s divorce decree contained a decision-making clause, or whether such a stipulation or the judgment merely declared the parents would share joint legal custody. Similarly, it was not stated whether the Department was refusing to honor an agreement that was incorporated by reference into the divorce judgment.

However, to be prudent, all parental rights should be specifically set forth in the judgment of divorce.

Kathy H. Chang, of counsel to Michael A. Cardozo, New York City’s Corporation Counsel, represented the Department. Thomas D. Shanahan, P.C., represented the father.

Where the parties’ joint legal custody agreement only provided for each parent to have equal input on all major decisions, including education, but did not provide for conflict resolution, the mother, after a hearing, was awarded temporary decision-making authority. Such was the holding of the April 11, 2013 decision of the Appellate Division, First Department, in Sequeira v. Sequeira.

The appellate court held that on the motion for such relief, New York County Supreme Court Justice Lori Sattler properly exercised her discretion in determining that it was in the child’s best interest to award the mother that power.

The parties had agreed to joint legal custody, which their agreement defined as including equal input with respect to all major decisions, including education. They did not, however, provide for a situation, such as the one presented, where the parents could not agree on where their child should attend school. The failure of the parents to agree on this issue thus presented the change in circumstances necessary for the court to modify the parties’ arrangement to protect the best interests of the child.

The record supported the temporary award of educational decision-making to the mother. The father’s due process rights were honored by the fair hearing held by Justice Sattler. He was permitted to cross-examine the mother, testify on his own behalf, and argue his case. As to this argument to the appellate court that he was denied an opportunity to hire an attorney, he never made a request to do so.

Comment: “Joint custody” is a nebulous term. Thus, care should be taken to carefully define what the parties intend by the use of that term. If shared decision-making is intended, the particular subjects or criteria requiring the parents’ agreement should be specified. Moreover, the procedure  to resolve conflict must be detailed. The steps to be taken before asking a court to intervene should be made clear. Whether the parents are required to work with a therapist, consult an expert, or engage a mediator as a condition to making a judicial application should be set forth. Moreover, although in New York, the delegation of decision-making to a third party other than the court may be against public policy, providing some authority to an agreed-upon tie breaker may be determined to be in the best interests of the children.

On this appeal, the father represented himself. The mother was represented by Lara Ott of Stein & Ott, LLP, of Manhattan.

College Fund 4.jpgIn last week’s blog, I discussed the extraordinary analysis undertaken by Monroe County Supreme Court Justice Richard A. Dollinger in L.L. v. R.L. in order to apply the agreement made by parents at the time of their divorce to finance their children’s college education “according to their respective means at the time the child attends college.”

On October 18, 2012, the Appellate Division, Third Department in Cranston v. Horton, affirmed the determination of Ulster County Family Court Judge Marianne O. Mizel to uphold a Support Magistrate’s order that each parent contribute 33% towards the reasonable educational expenses of their unemancipated children.

The Family Court had applied the parties’ 2007 surviving divorce settlement agreement requirement that each party “shall assist with the children’s reasonable college educational expenses according to their relative means and abilities at the time of attendance.”

Contrary to the father’s suggestion, the equal contribution level fixed by Family Court does not conflict with this provision.

In another part of the lower court decision, the father’s application for a reduction in his child support obligation was granted based upon a reduction in his reduced adjusted gross income from $98,000 to $63,000.

Justice Dollinger’s analysis would look to a variety of factors to assess the “relative means” of the parties. With how much is each parent left after considering their obligations. Here, the father had a child support obligation (apparently reduced in Cranston to $21,000), the maintenance obligation (unspecified), and the unspecified cost of student and other loans of one of the parties’ four children.

The Appellate Division concluded that the father’s income still far exceeded that of the mother (more than $23,000 at the time of the parties’ 2007 agreement). Thus, the father was in no position to claim an injustice based upon equal contributions by the parties to their children’s educational expenses. The court gave no credence to the father’s contention that the Family Court impermissibly rewrote the parties’ agreement in affirming the Support Magistrate’s determination regarding educational expenses.

Cranston is just the most recent in a never-ending line of cases in which the court was asked to apply a standard the parties created, and could have defined for themselves but did not.

Justice Dollinger’s decision in L.L. v. R.L is remarkable, if not unique in providing the parties with a formula to resolve their issue as it will continue to arise in the future.

However, the parents in Cranston, have no such guidance, unless we are to assume that in all future years, each parent will pay one third of college expenses. Does that blanket holding reflect the “relative means” of the parties when they have two or more children in college at one time or if either of their incomes, or expenses, change.

It’s common, if not easy to settle a divorce by agreeing to determine the college expense responsibility at a later time. However, these recent cases suggest that divorcing parents would be wise to reach specific guidelines, if not a precise formula by which their future income and assets will be assessed to determine both the relative contrbutions of the parents as well as their share of the total cost.

Dana M. Loiacono, Esq., of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh, represented the father. Joshua N. Koplovitz, Esq., of the Pro Bono Appeals Program of Albany represented the mother.

College Fund 3.jpgIn my December 12, 2011 blog, I discussed the October 14, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper, directing a father to pay 40% of his child’s private college expenses. In its April 24, 2012 decision in Tishman v. Bogatin, the First Department affirmed. A parent’s contribution to a child’s college education would not necessarily be limited to a portion of the expense to attend a campus within the State University of New York system: the “SUNY cap.”

The First Department held that Justice Cooper properly rejected the father’s contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child’s college education. There was no burden placed on the mother to show that the child’s needs cannot be met adequately at a SUNY college.

Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties’ means and the child’s educational needs. A rule that, absent unusual circumstances, a parent’s obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic Relations Law § 240(1-b)(c)(7). Under that provision, a court may award educational expenses where it determines, “having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires,” that the education sought to be paid for is appropriate.

Here, the appellate court noted, he child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school (neither party was represented by counsel), and both parties have the resources to pay the tuition at the private college where the child is enrolled.

Boy with 20s.jpgAllowing a state of facts to exist for a period of time without objection will often lead a court to continue those facts. Here, the court required a father to contribute to the cost of his son’s private school education, where the child had been attending the school for some 10 years, even though a scholarship had been awarded in prior years.

In an April 24, 2012 decision, the Second Department reversed so much of the order of Westchester County Family Court Judge David Klein which denied a mother’s objections to the order of Support Magistrate Esther R. Furman. That order failed to direct the father to pay his pro rata share of the private school expenses of the parties’ child. The Second Department also reversed the sua sponte termination of the father’s obligation to contribute to trial care expenses.

In Amos-Richburg v. Richburg, the parties, divorced since 2003, are the parents of one child born in or about 1995. When the child was three years old, the parties had jointly enrolled him in a private pre-kindergarten, where he received a full scholarship. The divorce judgment incorporated and continued the terms of a Family Court order of support, entered December 8, 1999, which, in part, obligated the father to pay the mother $102 biweekly for child care. The judgment of divorce and the prior order of support were silent as to the parties’ respective responsibilities for the child’s private school expenses in the event that he ceased to receive a full scholarship.

In June, 2008, the mother filed a petition seeking an upward modification of the father’s child support obligations. She requested that the father be directed to pay his pro rata share of the child’s private school expenses. The child, then 13, was enrolled in the same school since pre-kindergarten. However, the child no longer received a full scholarship, and the mother alone had been paying his expenses. After a hearing, the Support Magistrate, among other things, denied the mother’s request to direct that the father pay his pro rata share of the child’s private school expenses. The Magistrate, on her own motion, terminated the father’s obligation to contribute to child care expenses. The mother’s objections to these rulings were ultimately denied by the assigned Family Court Judge.

The Second Department reversed, holding that the the Support Magistrate improvidently exercised her discretion in denying the mother’s request to direct the father to pay his pro rata share of the child’s private school expenses. Pursuant to Domestic Relations Law § 240(1-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised in that regard.

Here, the child had been enrolled in the private school with the father’s approval, and performed well in that school. Thus, the appellate court ruled:

It was in the child’s best interest to remain at that school, rather than having his academic and social life disrupted by a transfer to a different school.

Additionally, there was no evidence that the father’s ability to support himself and maintain his own household would be impaired if he were directed to pay his pro rata share of the child’s private school expenses.

Additionally, the Support Magistrate erroneously terminated the father’s obligation to contribute to child care. Where the custodial parent incurs child care expenses as a result of employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation> Such child care expenses shall be prorated in the same proportion as each parent’s income is to the combined parental income.

Here, the mother worked as a private banker, which often requires her to work until 11:00 P.M. or midnight during the week. She did not believe that the parties’ 13-year old son was old enough to be alone for such long periods of time after school. Indeed, she was paying a babysitter to watch him three or four times a week. Under these circumstances, it was error for the Support Magistrate to, sua sponte, terminate the father’s obligation to contribute to child care expenses. Accordingly, the father’s obligation to contribute to child care expenses must be reinstated.

The parties should have addressed that what-ifs either in their 1999 Family Court or 2003 divorce court proceedings. If the father was unwilling to pay if the child’s scholarship was terminated, at least that fact could have been memorialized. hindsight is easy.

Absent good cause, it is common for courts to act to minimize the disruption to the children of divorce. That may mean allowing the children to remain in the marital residence until graduation, or to remain in the same school, with the same friends. Here, the father provided no such good cause.

The mother was represented by Brett Kimmel of New York City.

College Fund 4.jpgA recent decision of the Appellate Division, Third Department, appears to unduly expand the basis upon which a parent may be obligated to contribute to the college education expenses of a child beyond age 21.

Generally, a parent’s obligation to support a child terminates when the child reaches age 21. That general rule, of course, may be varied by the parents themselves by agreement.

Indeed, it is quite common to extend by agreement a parent’s support obligation, beyond the date on which a child turns  21, in a written separation agreement or divorce action stipulation of settlement, whether written or entered in open court. Such agreements often have an “emancipation” clause which defines the circumstances under which a child will be deemed emancipated for the purposes of the parent’s support obligation to a time either before or after child reaches age 21. Again, it is common to delay emancipation until the child turns 22 or thereafter, if the child is enrolled on a full-time basis in an accredited college, university or other post-high school educational program. If properly entered, such agreements are routinely incorporated into divorce judgments or other support orders. They are enforceable in both Supreme and Family Courts.

In its January, 2012 decision in Shapiro v. Shapiro, the Third Department affirmed a divorce judgment which, in part, obligated a father to contribute his pro rata share of college expenses until each child reaches the age of 22.

The court acknowledged that absent an agreement extending the obligation, a parent is not legally obligated to pay college costs for a child that has reached the age of 21. However, the court found that such an agreement could be inferred from statements which did not expressly exclude post-21 expenses from a statement agreeing to contribute to college. The sole basis of the Third Department’s decision was as follows:

Plaintiff acknowledged in his testimony that he had, in fact, agreed to pay part of the children’s college education costs, there was no indication that he intended to limit his payments to the children’s first three years in college, and proof at trial established that funds had been previously set up to assist in such costs. Under these circumstances, it was not error for Supreme Court to direct plaintiff to pay a portion of the children’s college costs until they reach the age of 22.

Continue Reading Court Extends Parent's Obligation to Pay College Expenses Beyond Child's 21st Birthday

College Fund 3.jpgIt is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”

A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.

Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.

A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.

Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.

Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:

the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.

Continue Reading Divorced Parents may be Liable to Provide Children with a Private College Education

Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.

Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child

Mom with daughter homework.jpgThe November/December issue of Scientific American Mind magazine presents the article, What Makes a Good Parent? A growing body of research conducted over the past 50 years shows fairly clearly that some parenting practices produce better relationships between parent and child and happier, healthier, better functioning children.

A new study by the article’s author, Robert Epstein, conducted with Shannon L. Fox, a student at the University of California, San Diego, was presented at the annual meeting of the American Psychological Association this past August. Dr. Epstein, a longtime researcher and professor of psychology, is a contributing editor for Scientific American Mind and former editor-in-chief of Psychology Today.

The study compared the effectiveness of 10 parenting competencies recognized as predictors of good parenting outcomes. Although this blog article will leave the “Ten Competencies” for another discussion, the author concludes, not surprisingly, that the best thing parents can do for their children is to give them lots of love and affection.

Getting along with the other parent is necessary. Even in co-parenting situations where parents live apart, it is crucial to adhere to practices that do not hurt children, to resolve conflicts out of sight of the children, to apologize to one another and forgive each other (both can be done in front of the kids), to speak kindly about the other parent, and so on. Stress management is also important for good parenting.

The study also determined that all types of people are equally competent at child-rearing; that the characteristics that people often associate with good parenting are probably not very significant.

  • Women appear to be only a hair better than men at parenting (women scored 79.7 percent on the study’s test, compared with 78.5 percent for men).
  • Parents who were older or who had more children also did not produce significantly better parenting outcomes.
  • Parents seem to perform just as well whether or not they have ever been married.
  • Divorced parents appear to be every bit as competent as those who are still married, although their children are somewhat less happy than the children of parents who were never divorced.
  • Neither race, nor ethnicity seems to contribute much to parenting competence.
  • Gays and straights are just about equal in parenting ability (gays are a “hair” better).

One characteristic that did seem to make a difference was education: generally speaking, the more education, the better the parenting.

The bottom line was that when judging an individual’s competence as a parent, one should measure that competence directly rather than default to commonly held stereotypes and prejudices.

Finally, the study concluded that parents are trainable. Parents who have taken parenting classes produce happier, healthier and more successful children; and more training leads to better outcomes.

The playing-field in custody litigation is now supposed to be gender-neutral. One cannot help but believe, however, that remnants of prejudices and stereotypes remain.

This study may not only help to level the field, it should provide a focus for facts and issues when making decisions in custody litigation. Measured against the Ten Competencies, how does each parent stack up? What is each parent doing, under the circumstances, to maximize the opportunity to raise happier, healthier, better functioning children?