Collection of popular social media logosWith the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.

A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani [2014]; Elissa N. [2013]; B.M. [2011]). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).

Continue Reading May Your Spouse’s Attorney Ethically Access Your Facebook Page?

Service by Facebook of a father’s petition to terminate child support was directed by Richmond County Family Court Support Magistrate Gregory L. Gliedman in a September 12, 2014 decision in Matter of Noel B. v. Maria A. (NYLJ link).

The father filed that application to terminate child support based on the alleged emancipation of his son.

The father was unable to effect service of court papers upon the mother by normal means. He submitted an affidavit that the mother was unknown to the current occupant of the the mother’s last known address. The father called and sent text messages to his 22-year old daughter to ask the mother’s location, but that no one answered the call or replied to his texts and voicemail. He also called and sent a text message to his son (the subject child on the instant petition) requesting that information, but again there was no reply of any kind. The father also did a Google search, but was unable to find any location for the mother.

Magistrate Gliedman noted that the Support Collection Unit (“SCU”) to which the father mailed his support checks still had that same last known address on file for the mother, meaning that all correspondence and communication with respect to the funds she was receiving for child support were being  sent to that address. The magistrate further noted that the mother provided that same address to the court when she sent an electronic testimony application to the court in March, 2013 in connection with a prior matter between the parties.

The father told the court that the mother maintains an active social media account with Facebook. The mother’s current spouse maintains her own Facebook account, and has posted photos that have been “liked” by the mother as recently as July, 2014.

Magistrate Gliedman described Facebook as a social networking website that allows its users to interact with friends, relatives, acquaintances and individuals with common interests. Due to its online nature, there are no geographic limitations on Facebook — people with whom an individual interacts with on Facebook can be as close as the house next door or as far away as a continent on the other side of the world.

Continue Reading Court Authorizes Facebook Service Of Child Support Petition

In its February 14, 2013 decision in Melody M. v Robert M., the Third Department affirmed an order of now-retired St. Lawrence County Family Court Judge Barbara R. Potter which modified a prior joint custody order to award the father sole custody of the parties’ three children (ages 8, 9 and 12). The Third Department also affirmed Judge Potter’s imposition of an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site.

The parties had entered into a separation agreement in 2006 providing for joint custody of their children with alternating physical placement. In February 2009, they stipulated to continue joint custody, but with the father having primary physical custody. In July 2010, the mother commenced the first of the four proceedings determined by Judge Potter’s order, seeking to alter her parenting time so that she would have the two youngest children from Wednesday to Sunday of each week and the oldest child from Sunday to Tuesday of each week. The father opposed the proposed schedule change, filed violation petitions and filed a modification petition seeking, among other things, sole legal custody of the children.

After a hearing, Judge Potter found a change in circumstances sufficient to conclude that the joint custody arrangement was no longer viable and that an award of sole legal custody to the father would be in the best interests of the children.

Continue Reading Mom Ordered to Stop Posting about Her Children on Facebook

Is a divorce settlement agreement that mandates that the children attend school within a particular school district satisfied by the children being home schooled within that district? Maybe, held the Third Department in its June 17, 2021 decision in Matter of John U. v. Sara U.

The parties were the divorced parents of two children (born in 2010 and 2012). They entered a separation agreement in October 2017, which was modified in September 2019. The agreement provided for joint legal custody and shared physical custody of the children. As is here relevant, it contained a provision that:

[s]o long as the [father] maintains a residence in [a certain school district,] the children shall continue to attend school within [that school district] unless both parties expressly agree in writing to change the schools of the children.

Prior to the 2019-2020 school year, the children had attended a certain public elementary school in that school district. The children had a religious exemption from vaccination. After a June 2019 change in state law eliminated such religious exemptions for students (see Public Health Law § 2164), and after the district’s denial of the mother’s requests for medical exemptions, the unvaccinated children were removed from their school in September 2019 and the mother began home schooling instruction at her home.

Continue Reading Is Home-Schooling “Attending” School?

Family 2In his March 8, 2017 decision in Dawn M. v. Michael M., Suffolk County Supreme Court Justice H. Patrick Leis III granted a wife “tri-custody” of her husband’s ten-year-old biological son with the wife’s paramour.

Dawn and Michael M. were married in 1994. After unsuccessful attempts to have a child, the couple attempted artificially insemination. Those efforts also failed.

In 2001, the wife met Audria and they became close friends. Audria and her boyfriend moved into an apartment downstairs from Dawn and Michael. When Audria’s boyfriend moved out, Audria moved upstairs. In 2004, the wife, husband and Audria began to engage in intimate relations.

As time went on, Audria, Dawn and Michael began to consider themselves a “family” and decided to have a child together. After the fertility doctor refused to artificially inseminate Audria because she was not married to Michael, the trio decided to conceive a child naturally by Michael and Audria engaging in unprotected sexual relations, and then, to all raise the child together as parents.

A son, J.M., was born to Audria in January, 2007. For more than 18 months, the three “parents” continued to live together. The child was taught that he had two mothers. When the relationship between the husband and the wife became strained, Audria and the wife moved out of the marital residence with the child.

Continue Reading Wife Awarded “Tri-Custody” of Son of Her Husband and His and Her Paramour

K-1-cropped-wideIn its May 11, 2016 decision in Eifert v. Eifert, the Appellate Division, Second Department, appears to discuss the interrelationship between the calculation of child support and the “income” shown on a partnership K-1 tax form. In truth, it does not.

In their divorce settlement agreement, the parties agreed that the father would pay child support consisting of two components. The first component required the father to pay $4,400 per month. As summarized by the Second Department in its opinion, the second component required the father to pay “25% of the income he derived from his ownership of stock in Eifert French & Co.”

Years later, the mother sought to recover child support arrears in the sum of $63,283.25 arising from the second component of the father’s child support obligation. The mother arrived at this sum by performing calculations based on K-1 statements received by the father from Eifert French & Co.

In opposition, the father contended that the second component of his child support obligation should be calculated based only on distribution checks he received from Eifert French & Co, rather than the income reflected on his K-1 statements. Based on that limitation, the father calculated that the correct amount of arrears he owed for this second component of his child support obligation was $21,137.49.

Supreme Court, Westchester County Justice Colleen D. Duffy agreed with the father and found arrears to be $21,137.49. The mother appealed.

Continue Reading K-1 Income and the Calculation of Child Support

Alimony handedIn its June 4, 2015 decision in Orioli v. Orioli, the Appellate Division, Third Department, affirmed an award of lifetime maintenance (alimony).

The parties were married in 1989 and had two children. In 2009, the wife commenced this action for divorce. Chenango County Supreme Court Justice Kevin M. Dowd awarded the wife nondurational maintenance of $78,000 per year, to be decreased to $50,000 per year once she reached the age of 62. Maintenance would only terminate upon either party’s death or the wife’s remarriage.

The Third Department affirmed, holding that Justice Dowd did not abuse his discretion in his award of maintenance to the wife.

The amount and duration of a maintenance award is left to the sound discretion of a trial court that has considered the statutory factors and the parties’ predivorce standard of living.

A spouse’s ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance.

Indeed, Justice Dowd had addressed the numerous statutory factors and the predivorce standard of living when making the permanent award.

Among other things, he considered the evidence that the marriage was of a long duration (20 years). Justice Dowd further considered that one of the parties’ children resided with the wife, that maintenance would be taxable for the wife and tax deductible for the husband.

It was also noted that the wife had wastefully dissipated $120,000 of marital assets, and lacked candor in her statement of net worth.

Justice Dowd also considered that as of 2009, the husband had reported income of approximately $425,000, while the wife had no income that year. On the other hand, the wife was now capable of working and earning at least $32,000 a year. She did not require additional time or training to gain such employment. Her earning capacity was not affected by her choice not to work during portions of the marriage.

Finally, Justice Dowd recognized that the wife had enjoyed a comfortable standard of living that was commensurate with the husband’s income.

Given the totality of the evidence, we agree that it is unlikely that the wife will become self-supporting so as to attain the lifestyle to which she had been accustomed to during the course of the approximately two-decade marriage.

Accordingly, the appellate court concluded that nondurational maintenance in the amount awarded, which included a reduction in that award at a set future date, was not an abuse of discretion.

William H. Getman, of Woodman & Getman, of Waterville, represented the wife. Michael S. Sinicki, of Hinman, Howard & Kattell, LLP, of Binghamton, represented the husband.

In its January 28, 2015 decision in Carlin v. Carlin, the Appellate Division, Second Department, upheld the removal of the forensic evaluator previously court-appointed in the parties’ divorce action.

On the renewed motion for the removal made by the wife, she submitted a letter from the Mental Health Professionals Certification Committee for the First and Second Judicial Departments to the evaluator, informing him that he had been removed from the Mental Health Professionals Panel. On that basis, Suffolk County Supreme Court Justice Joseph Santorelli vacated the prior appointment.

In any case involving custody, visitation and other specified family matters, a judge is authorized to appoint a mental health professional to evaluate the family

The Mental Health Professionals Panel was established by the Appellate Division, First and Second Judicial Departments, to ensure that courts and parties have “access to qualified mental health professionals” who are available to evaluate the parties and to assist courts in reaching appropriate decisions as to, inter alia, custody and visitation (22 N.Y.C.R.R. 623). The Certification Committee is tasked with the responsibility of recommending eligible mental health professionals for appointment to the panel, investigating complaints against panel members, and recommending removal of panel members to the Presiding Justices of the First and Second Judicial Departments.

The panel is comprised of approximately 266 licensed psychiatrists, psychologists and social workers, whose names can be accessed in the MHP Resource Directory 2014.

The Departments publish a 2013 Mental Health Professionals Handbook which serves to familiarize the panel with the procedures and protocols for handling court ordered mental health evaluations. It includes relevant regulations and statutory provisions, administrative policies, court forms, and sample orders.

Peter Panaro of Massapequa represented the wife. Christopher J. Chimeri of counsel to Campagna Johnson, P.C., of Hauppauge represented the husband.

The non-biological spouse in a same-sex marriage is a parent of the child under New York law as much as the birth-mother. So held Monroe County Supreme Court Acting Justice Richard A. Dollinger, in his May 7, 2014 opinion in Wendy G-M v. Erin G-M.

The birth mother and her spouse were married in a civil ceremony in Connecticut, before New York enacted its Marriage Equality Act (“MEA”). The couple decided to have a child and in October 2011, they both signed a consent form agreeing to artificial insemination procedures. In the consent form, the birth-mother authorized the physician to perform artificial insemination on her, and the spouse requested the doctor to perform the procedure, declaring “any child or children born as a result of “ pregnancy following artificial insemination shall be accepted as the legal issue of our marriage.”

The document was signed by the birth-mother, the spouse, and the physician, but there was no acknowledgment to the signatures before a notary (as required by D.R.L. §73). Both parties underwent artificial insemination for almost two years, until the procedure succeeded on the birth-mother; the spouse then discontinued her treatments. Both the birth-mother and the spouse were both involved in appointments. The spouse attended the pre-birth classes, including breast feeding, baby care, and CPR classes. The spouse participated in the baby showers. The birth-mother celebrated the impending birth of “our” daughter through a Facebook posting.

The spouse was present at the birth of the child and the couple jointly decided the name of the child. When the hospital officials asked for information on the parents, both participated in the discussions and the birth mother acknowledged that the spouse was the parent of the child. The child was given a hyphenated surname of the two women, with the spouse’s name listed first. The birth certificate for the child lists both as the parents of the child.

After the birth of the child, citing marital trouble, the spouse left the household, in her words, to “not cause undue stress or potential other problems.” The child only lived in the same household with the two women for one week before they established separate households.

The action for divorce was commenced by the birth-mother in December 2013, less than then three months after the birth of the child. Before and after commencement, the birth-mother would not permit her spouse to visit with the child. The spouse then filed the instant request for a variety of relief, including access to the child, maintenance, and attorney fees.

Justice Dollinger was called upon to determine whether the spouse who did not give birth to the child (the non-biological spouse), is a parent of the child under New York’s longstanding presumption that a married couple are both parents of a child born during their marriage.

Continue Reading Both Same-Sex Spouses are the Parents of a Child Born During the Marriage

The husband’s willingness to lie was only exceeded by his arrogance, which apparently permits him to believe that the court might possibly buy the bridge he is selling. The world in which Mr. Medina lives, is at best in a parallel universe.

So noted Justice Charles D. Wood, Supervising Judge of the Matrimonial Part of the Westchester County Supreme Court, in his December 17, 2013 decision in Medina v. Medina, when awarding the wife $53,000 of the $63,000 in counsel fees she incurred in this divorce action.

The parties were married in 2001. They had one child, now five years old. Both parties were 38 years old. The wife attained the equivalent of a bachelor’s degree in Poland. During the marriage, she earned her real estate license. For the last two years, she had worked selling real estate directly for a developer. After having worked in a sales position for another developer for six years, the wife gave birth in 2008 to the parties’ son, and only worked half the year. She also stayed home with the child in 2009. In 2011, she earned $87,000, and in 2010, $58,936.

Prior to the marriage, the husband held licenses to sell insurance, securities, and a Series 7 certification. The day before the January, 2011 commencement of this divorce action, the husband was laid off as an investment advisor with the firm for whom he had been working since 2006. In 2011, the husband worked for a securities firm, and earned $87,911.47. He now works for another securities firm, where his income is based solely on commissions.

A six-day trial was conducted on the issues of parental access, equitable distribution, allocation of marital debt and tax arrears, child support and maintenance (and arrears of both). Following a decision on these issues, a hearing was held on the wife’s application for counsel fees.

The wife had incurred counsel fees of over $63,000,based upon her counsel’s fee at $400 per hour. Of that sum, the wife had already paid $25,000.

Continue Reading Counsel Fees Awarded Against Husband Living in “Parallel Universe”