Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of  Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend.

New York’s cosmopolitan population often presents still another layer of law and fact through which our judges must navigate. Four decisions this month reveal the breadth and complexity of those international issues.

In a July 21, 2014 decision in J.R. v. E.M.New York County Supreme Court Justice Ellen Gesmer decided to apply New York law to set aside a marital agreement for its failure to meet New York formalities, although the procedure followed in the Spanish Consulate where it was signed may have been far better able to achieve the goals New York’s formalities were designed to achieve.

On March 3, 2004, the day after they were married in New York City, the parties signed a “Matrimonial Property Agreement” before the Spanish Consul at the Consulate in New York City.

The wife is a Peruvian citizen; her husband is a Spanish citizen. Justice Gesmer noted that both parties are well-educated and accomplished native Spanish-speaking professionals, both currently employed by the United Nations.

After commencing her divorce action in 2013, the wife moved to set aside the marital agreement. She claimed that although the Agreement had been drafted before the parties went to the Consulate, she did not first see it until arriving at the Consulate on March 3, 2004.

Continue Reading New York: The Divorce Melting Pot (Part 1 of 4)

Kings County Justice Matthew J. D’Emic, in his April 3, 2013 decision in E.S. v. S.S., blamed both parents for the stress upon their young daughters. As a result, no change was made to the custody and visitation provisions of the parents’ divorce judgment.

Both sides sought changes to the judgment’s visitation schedule. The mother asked to partially eliminate visitation; the father sought sole custody, as well as changes to the pick-up and drop-off location.

Reviewing the parties’ combative history, Justice D’Emic noted that before the divorce judgment, the parents had held onto their strident positions longer than they served a purpose. Therapy for the elder daughter was sought. The father was forced to endure a lengthy and humiliating term of supervised visitation with both of his children.

The long and contentious trial followed,which the father estimated cost the parties more than $1,000,000.00. Not surprisingly, the Court noted, neither parent has recovered, and motions for various relief are submitted on a regular basis.

Several months ago, at the mother’s request, and based on reports of the children’s stress over visitation with the father, the court allowed the mother to seek family therapy, encouraging the father to participate. Neither side was now satisfied with the way things were going.

Unfortunately, courts are never in an ideal position to make decisions for parents. More unfortunate is the fact that courts are too often asked to do so.

The children’s therapist recommended that the whole family, together with a parent coordinator “all meet together and work out a clear agreement specifying the parameters of visitation to provide the children with some sense of security and control over visitation with the father.”

To alleviate stress and to provide consistency and regularity to the children, the Court directed the parents to adhere literally to the visitation provisions of the divorce judgment.

Furthermore, the mother and the father are directed to exercise custody and visitation in a manner appropriate to their responsibilities to their daughters. Maturity must have a role here.

Justice D’Emic made no change to prior award of sole custody to the mother, or to the decision-making rights and visitation schedule for the father.

It is the court’s opinion that any stress to the daughters is being caused by their parents nit-picking, one-upmanship and lingering resentments. If the relationship between father and daughters is strained, it is up to the parents – both parents – to repair it.

The father was opposed to the family therapist. Nevertheless, Justice D’Emic encouraged him to cooperate and participate in the therapy as a step towards repairing his relationship with his daughters.

The Court concluded that the issues between the parents were not insurmountable.  “With a minimum of trust and accommodation these girls can have an enjoyable experience with both parents – an experience to which they are entitled.”

Aurora Cassirer, of Troutman Sanders LLP, of Manhattan, represented the father; Mark Holtzer, of Snitow, Kanfer, Holtzer & Millus, LLP, of Manhattan, represented the mother.