Soap in Mouth.jpgOn October 27, 2011 the Appellate Division, Third Department, affirmed the April 21, 2010 Order of Broome County Family Court Judge Mary Connerton switching primary physical custody of their 8- and 10-year old children from the mother to the father. The parties continue to share joint legal custody.

In Brown v. Brown, The appellate court determined that the Family Court’s order was supported by a sound and substantial basis in the record. Evidence regarding the mother’s forms of punishment, which in part led to an indicated report of inadequate guardianship, was sufficient to show the change of circumstances necessary to support the father’s application for the change of custody.

The mother acknowledged that she put liquid dish soap in the children’s mouths on multiple occasions to punish them. There was some proof that she or her boyfriend used enough soap to make bubbles flow from her son’s mouth on one occasion.

At the hearing before Judge Connerton, the mother refused to admit that soap in the mouth may not be an appropriate punishment. Rather, the mother testified that after speaking to a child protective caseworker, she switched to a different type of soap. Yes, the caseworker testified that she instructed the mother not to use soap as punishment at all.

Other forms of punishment that the mother used included making a child stand in the corner for hours at a time and refusing to allow her daughter to speak for at least several days, possibly an entire week, with a monetary penalty imposed for every word that was uttered.

The appellate court noted that the mother was not very engaged with the children, neglected their dental care, drove them in her vehicle when she did not have a driver’s license and caused them to be late for school because she overslept. The Family Court considered these deficits in the mother’s parenting abilities and weighed them against the father’s strengths and weaknesses as a parent, finding that the children’s best interests would be served by transferring physical custody to the father.

We have come a long way.  In 1956, the Lyme, Connecticut Board of Education felt that the action of a teacher who washed out a boy’s mouth with soap was not a violation of School Board policy. In 2004, a Rochester, New York teacher was suspended for washing a boy’s mouth out with a dab of soap after he shouted an obscenity at a classmate.

In 2009, a Palm Bay, Florida woman and her boyfriend were arrested for child abuse after the couple washed out their 8-year-old daughter’s mouth with soap for swearing (they let it remain there for 10 minutes). The girl eventually vomited and was taken to the local hospital, where the staff called the police.

I have no doubt that there is a substantial parent population who believe that grandma’s tried and true remedies were effective and are not abusive. Memo to parents: when child protective services makes an indicated finding of abuse or neglect, there will be severe consequences for not following a caseworker’s instructions and then lying about it.

tugging child.jpgIn fact, we may have all failed the Y. family children (name deleted at the request of the family). Their parents have spent the last four years fighting in court. Their custody litigation will likely last at least another two years.

The result: one child who may be suicidal; the other self-mutilating.

Reading appellate court decisions cannot possibly reveal the nuances faced by sitting Family Court Judges. This, then is not a critique of any one particular decision. Rather, we must acknowledge that the overburdened judicial system may no longer be able to serve “the best interests of the children.” In fact, the court system itself may be hurting our children far more than any decision.

After four years of litigation, including the year needed to obtain this decision, the Appellate Division, Second Department, in Matter of Dana H. v. James Y., sentenced the Y.-family children to another two years of court fights . . . . unless their parents can get their act together.

James Y. and Dana Y. H. (now-remarried) divorced in 2004. At that time they had agreed to share joint custody, with the mother having primary physical custody. However, the mother relocated with the children to South Carolina without the permission of either the father or the Family Court.

As a result of the mother’s relocation, physical custody was transferred to the father. He moved with the children to live with his mother.

Both parties then petitioned the Family Court for sole custody of the children, with the mother also finally seeking for permission to relocate the children to live with her and her new husband in South Carolina.

After a trial conducted over the span of a year, Nassau County Family Court Judge Conrad Singer by his June 23, 2008 order determined that the mother would be awarded sole custody of the children, provided that within six months she returned to live in New York.

On the other hand, if the mother refused to return to New York, it would be the father who would have physical custody of the children, but the mother would have final decision-making authority concerning the children’s welfare, education, medical, and mental health issues, except in the event of an emergency.

Ms. H., indeed, elected not to relocate to New York.

Continue Reading Has the Court System Failed the Y. Children?

Sad child torn picture.jpgIn an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.

Continue Reading Are Parenting Coordinators Too Little, Too Late in Custody and Visitation Disputes?

Grandma and child 1.jpgThree appellate decisions published the last week in October provide a primer on awards of custody to non-parents.

In its October 27, 2011 decision in Matter of Wayman v. Ramos, the Third Department reversed Broome County Family Court Jusge Spero Pines‘ dismissal of a grandparents’ petition for custody of five and six year old children. In July, 2007, the mother (who had been awarded custody of the children following her separation from her husband) left the children with her parents while she attempted to stabilize her life. By November, 2007, with the mother’s consent and the father’s failure to appear, joint legal custody of the children had been awarded to both the mother and her parents, with primary physical custody being awarded to the grandparents.

Shortly thereafter, however, each of the mother and father filed a petition seeking sole custody of the children. In April, 2009, the Family Court dismissed both parents’ petitions on the grounds that there had not been a sufficient change in circumstances since November, 2007, to warrant a modification of the prior arrangement. On appeal from that dismissal, the Third Department reversed, reinstating the parents’ petitions: the Family Court had failed to make the required threshold determination that extraordinary circumstances existed to warrant the award of custody to a non-parent. Moreover, on the record before the Third Department of 2010, the appellate court believed no such extraordinary circumstances existed.

Thus, the Third Department has an apparent rule that extrarodinary circumstances must be demonstrated by the non-parent custodian at each proceeding.

In Wayman, while the Family Court was considering the matter again, the children continue to reside with their maternal grandparents. In September 2010, the grandparents commenced their own proceedings seeking sole custody (they had joint legal custody with the mother under the November, 2007 order). In response to the September, 2010 application of the grandparents, the mother (who had herself moved to Florida in April 2009), also sought sole custody. Family Court Judge Pines dismissed the grandparents’ custody petition without providing the grandparents with a hearing, concluding that even if the facts alleged by the grandparents were true, such would not constitute extraordinary circumstances warranting an award of custody away from the parents.

The Third Depatment’s October, 2011 decision, disagreed with the Judge Spero’s dismissal of the grandparents’ custody petition without a hearing. The appellate court noted that generally:

the parent’s claim is superior in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances.

In that regard,

evidence that the parent has failed either to maintain substantial repeated and continuous contact with the child or to plan for the child’s future has been found to constitute persistent neglect sufficient to rise to the level of an extraordinary circumstance.

Generally, the Third Department ruled, a hearing must be conducted unless the grandparents failed to make a sufficient should showing which would warrant such a hearing, or the the court had sufficient information to undertake a comprehensive independent review of the children’s best interests in the absence of a hearing.

Continue Reading Grandparent and Non-Parent Custody Requires Both Extraordinary Circumstances and the Best Interests of the Child

Calulator on 100s 8 red.jpgOn October 25, 2011 the New York State Law Revision Commission held a round-table discussion to review New York’s spousal support, i.e. “maintenance” statute, Domestic Relations Law §236(B)(5-a, 6). The discussion precedes a final report which that Commission is required to render under a mandate imposed by the Legislature when new laws concerning temporary maintenance, interim counsel fees and no-fault divorce were adopted last year. In part, the Commission was charged to:

review the maintenance laws of the state, including the way in which they are administered to determine the impact of these laws on post marital economic disparities and the effectiveness of such laws and their administration in achieving the state’s policy goals and objectives of ensuring that the economic consequences of a divorce are fairly and equitably shared by the divorcing couple . . . .

Lee Rosenberg, chair of the Nassau County Bar Association Matrimonial Law Committee, noted that last week’s round-table discussion revealed a gap in opinions.  Those advocating for lower income women and domestic violence victims believed that the interim temporary maintenance statute enacted last year should remain in effect, with permanent guidelines leaving little to judicial discretion needed as well. The rest of the attorneys and judges believed a “one size fits all” formulaic approach did not work, created more litigation and did not do justice for both parties.

Mr. Rosenberg commented that if there was any majority view, it was that the temporary maintenance statute needed a major overhaul or complete repeal, except perhaps in lower income cases. Courts should retain real discretion to consider long-established factors in making any award, temporary or final.

A Preliminary Report on Maintenance Awards in Divorce Proceedings (Law Revision Report on Maintenance May 11 2011.pdf) was issued by the Law Revision Commission on May 11, 2011. That Report concluded that the 2010 temporary maintenance law sparked “intense debate over whether a formula should be used to calculate temporary maintenance.” To pursue its mandate, the Commission is reviewing reported appellate and trial court decisions awarding or denying temporary and/or final maintenance over the past 14 years. The Preliminary report presented a summary of the most recent decisions.

Posts in this blog on March 23, April 5 and July 18 considered recent awards under the new temporary maintenance statute, criticizing the absence of a “reality check” in two of those decisions.

Continue Reading Spousal Maintenance Statute Difficulties Noted by New York's Law Revision Commission

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

College Fund 1.jpgAugust is off-to-college month. For divorced parents, the joys and sorrows of a child leaving the nest are often compounded by the parents’ disagreement over their division of college expenses.

Last Spring’s decision of the Second Department in Yorke v. Yorke provides guidance.  The parties are the parents of a child who entered college beginning in the Fall 2007 semester.  By two 2007 orders, the father was directed to pay 83% of the college tuition for the subject child prior to March 2009, and 82% of the tuition thereafter.

Those orders provided that the father was not responsible for contributing towards the child’s room and board at college.  This 2011 opinion did not discuss why room and board had been excluded, or the basis for the prospective (2009) change in the allocated percentages.

Instead, this 2010 Family Court, Orange County, proceeding involved only the calculation of the father’s  share of tuition. At the heart of the dispute was the effect of the child’s financial aid package, both as it reduced the tuition expense, but also as it was required to be spread over the costs for room and board.

Continue Reading College Financial Aid and Calculating the Divorced Parent's Pro Rata Obligation for Tuition

Church and State.jpgIn the United States, there is perhaps no greater blending of Church and State than with marriage and divorce. New York’s recognition of same-sex marriage shines a light on a debate as old as the country.

It took the 16th century Protestant Reformation to reject marriage as a religious sacrament.  For  Martin Luther, marriage was “a worldly thing.”  In the 17th century, the English Parliament declared “marriage to be no sacrament.” It was to be performed by a justice of the peace, not by a minister. The Puritans brought secular marriage to America. Back in England the pendulum swung back to the religious right in 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but not of Quakers and Jews).

In New York, marriage is a hybrid. Domestic Relations Law §10 declares:

Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.

Continue Reading Marriage and Divorce: Is it Time for Separation of Church and State?

Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.

Continue Reading Defining or Questioning the Marriage Contract: Gay Marriages, No-Fault Divorce and Dissolved Civil Unions

House of money.jpgThe May, 2011 decision of the Appellate Division, Second Department, in Many v. Many, seems, at first blush, to be a rather routine matter. While their divorce action is pending, the interests of the parties are balanced. However, below the surface lurk issues which highlight the frustration and anxiety which spouses must feel as their case is squired through the judicial process.

By Order to Show Cause issued June 13, 2009, two years before this decision, the wife sought interim support.  She also sought a restraint against her husband refinancing the marital residence. One may surmise that Mr. Many was sole owner of the home; it was his “separate property,” subject to his wife’s claim to an equitable share.

Ms. Many received her award of temporary maintenance. However, by his Order of April, 2010, Supreme Court, Westchester County, Justice Edgar G. Walker, denied that branch of Ms. Many’s motion which was to restrain her husband from encumbering the marital residence.  In effect, Mr. Many was authorized to refinance the equity in the marital residence, but restricted from using the funds for any purpose other than paying his pendente lite maintenance obligation.

Continue Reading When Mortgaging the Marital Residence Is Necessary to Pay Temporary Support