Family Law Flashcards
Standard for modification of child support
Substantial change in circumstances
Child support arrears
Cannot be modified
Upward modification of child support
New York permits an award of child support to be modified when there is
- a substantial change in circumstances regarding the child’s needs or parent’s financial situation,
- or when three years have passed
- or a party’s gross income has changed by 15% or more since the previous child support order was entered, modified, or adjusted
Considerations involved in upward modification
- 3 years
- 15% increase in income
- Other factors include:
- cost of living
- child’s activities
- special circumstances
Downward modification of child support
- Change must be unforeseen & involuntary
- Loss job suffices if
- involuntary
- diligent efforts to find new employment commensurate w/ experience, skill, and education
Jx of child support and modification
- Home state will have continuing jx
- Only when parties and child no longer live in home state does jx transfer
Long-Arm Statute for Child Support
Extended to limits of due process:
- Respondent has lived w/ child in state
- Has lived in state and provided support in state
- Child lives in state due to directive/acts of respondent
- Conceived in state
- Asserted parental rights in state
- Any other constitutional basis to assert jx
Child custody standard
Best interest of the child
Considerations in child custody
- Parenting skills
- Health
- Rel w/ non-custodial parent
- Child’s lifestyle pre-divorce
- Child’s wishes
- DV - if sworn statement MUST be considered
Consequences of interfering w/ parenting time
Not a basis to discharge child support
but may modify spousal support
Modification of child custody
- Change in circumstances from date of original order
- based on best interest of the child
- Relocation is most frequent basis
Valid Pre-Marital Agreements
- Consideraton
- Consent
- Lack of duress
Review of child custody/support agreements
Subejct to review by court under best interest of the child standard
Valid Marital Agreements
- Fair, reasonable, and voluntary
- Made w/ full disclosure
Modification of Incorporated Agreements
Higher standard: extreme hardship instead of substantial change in circumstances
JX of private placement adoption
Family Court
or
Surrogates Court
Jx of agency adoption
Family court
Adoption records
Unsealed by adoptee by showing good cause
Revocking adoption (private placement)
If surrender/consent given before a judge, irrevocable
If not, 45 days.
Revocking adoption (agency)
30 days from surrender
Termination of parental rights
- Voluntary
- Failure to register
- Involuntary (judicial) termination
Putative Father Failure to Register
A putative father’s failure to register within a statutory prescribed period of time will waive his right to notice of the adoption and irrevocably implies his consent.
Newborn: Qualifying Interest of unwed father (blocking adoption)
- Requires his willingness to assume custody of the child
- Other factors the court takes into account when determining whether the unwed father has met consent requirements:
(i) public acknowledgement of paternity,
(ii) payment of medical expenses during pregnancy, and
(iii) the extent of interaction with the mother during pregnancy.
6mos + : Qualifying Interest of unwed father (blocking adoption)
- maintained substantial/continuous/repeated contact with the child:
- payment of reasonable support and
- visitation at a minimum of a monthly basis, unless financially or physically unable to do so.
- If unable, the F must regularly communicate with the child or agency providing care.
- Openly lived with the child for six months of the year preceding placement will satisfy the criteria.
< 6mos : Qualifying Interest of unwed father (blocking adoption)
Unconstitutional to require F’s consent.
A father’s consent for the adoption of a non-marital child is not required unless:
- the father continuously lived with the mother for six months preceding the adoption
- held himself out as the father,
- and paid a fair and reasonable amount in support of pregnancy- and birth-related expenses.
Judicial termination of parental rights
By CLEAR & CONVINCING evidence
- Abandonment –> no visitation or communication despite ability to do so, for a period of six months preceding the action
- Permanent neglect –>t fails for a period of more than one year following placement in foster care to plan for the child’s discharge or failed to maintain contact and visit;
- Inability to provide basic care due to mental retardation or mental illness; and
- Child abuse occurring on a severe and repeated basis.
Family Offenses
- Assault, attempted assault, menacing, stalking, reckless endangerment, harassment, criminal mischief, and disorderly conduct
- when the victim is related to the perpetrator by blood or marriage, is a former spouse, or has a child in common with the perpetrator.
- Family court and criminal ct have concurrent jx
Protective orders
Def. prohibiting the defendant against further abuse and no contact with the victim (“stay away order”)
- The first process is to obtain an ex parte order with limited injunctive relief
- followed by a hearing, after notice and an opportunity to be heard has been afforded the defendant, for a permanent order.
Duration of protective order
- Up to two years
- Five years if aggravating factor present
Abused Child Def
Person designated to care for 18+:
i) Inflicts (or creates a substantial risk of) or permits physical injury . . . that creates a sub. risk of death, SBI, serious impairment of physical or emotional health, or loss or impairment of the functioning of a bodily organ;
ii) sexual offense against the child r
iii) Permits, encourages, or allows the child to engage in specified criminal acts, including promoting prostitution, incest, or sexual performance by a child.
Neglected Child
- abandoned
- or whose physical, emotional, or mental condition has been impaired or is in serious immediate danger of being impaired
- as a result of the parent’s or legal guardian’s failure to exercise a minimum degree of care
Allowed Abortion
i) A licensed physician, or the woman herself, if acting under the advice of a physician, may perform an abortion on a fetus within 24 weeks of conception;
ii) A licensed physician, or the woman herself, if acting under the advice of a physician, may perform an abortion after the 24 week time frame if the physician reasonably believes it is necessary to preserve the life of the pregnant woman;
iii) An abortion after 12 weeks of pregnancy may only be performed in a hospital on an inpatient basis; and
Marriage Age Restrictions
- 14-15: Judicial consent
- 16-17: Parental consent
- 18+: any age
NY waiting period (marriage)
marriage license is effective 24 hours after the license has been issued, but expires after 60 days.
Valid marriage
- license and
- a solemnization of the marriage (i.e., a ceremony).
- a judge, political official, or member of the clergy of a recognized religious org.
- One witness
Marriage license not issued when . . .
i) One of the parties is married to someone else;
ii) The parties are too closely related as defined by statute;
iii) The marriage is entered into as a sham; or
iv) The parties are incapable of understanding the nature of the act.
v) the party was under the influence of alcohol, drugs, or other substance rendering the person incapable,
vI) or when a party lacked consent due to duress or fraud.
Ending a marriage
- Annulment
- Divorce
- Death
Void marriages
- Bigamy
- Enoch Arden (5 year absence)
- Incarceration w/ life sentence
- Incest
Voidable marriage
- Age
- Mental incapacity
- Physical incapacity
- Fraud, duress, misrep, coercion, or force
- Incurable mental illness (5 years)
Valid Separation Agreements
- in writing,
- executed by the parties freely/voluntarily, and
- acknowledged in the same manner as a deed (i.e., notarized).
- Separation occurs prior to or immediately after the execution of the agreement; and
Grounds for separation
- Same as divorce +
- Failure to support:
- neglect or refusal of a spouse to support the other spouse at the marital standard of living,
- if the spouse possesses the means to do so and
- the spouse seeking support is unable to be self-supporting.
Effect of divorce on separation agreement
- Presumption is incorporation (survives divorce)
- Intent of parties controls
Grounds for divorce
- No fault divorce
- Conversion divorce
- Adultry
- Cruel and unusual punishment
- Abandonment
- Imprisonment
No fault divorce
- At least one spouse
- must affirm under oath
- “irretrievably broken”
- has been for at least six months.
Conversion divorce
- separation agreement,
- signed and
- notarized by both parties
- lived apart for a least a year
- There must be no material breach by either of the parties, however.
Spousal testimony in adultery
ONLYt
(i) to prove the marriage,
(ii) disprove the adultery, or
(iii) disprove a defense.
Adultery Defenses
- Recrimination
- procurement,
- condonation, or
- connivance
Cruel & Inhumane Treatment
Course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and makes the continued cohabitation between the parties unsafe or improper
Abandonment
- voluntarily leaves the marital home,
- without cause or the consent of the other spouse,
- with the intent to remain apart on a permanent basis,
- lasting a minimum of one year.
Constructive Abandonment
- One spouse unjustifiably forces the other spouse to leave the home
- willful, continued, and unjustified refusal to engage in intimate relations with a spouse for one year or more may constitute constructive abandonment.
Imprisonment
For 3+ consecutive years
Fault Divorce Defenses
- Recrimination (adultery)
- Connivance
- Condonation (forgiveness)
- Collusion
- Provocation
- Consent
- Justificaton (abandonment)
Equitable Distribution
a fair distribution of all of the property, taking into consideration all of the circumstances between the parties
Marital property
The definition of “marital property” is typically broadly applied and includes
- retirement benefits
- maybe equity in non-marital property
- a professional license/degree earned by a spouse during marriage, and to which the other spouse contributed
- Retirement or pension benefits
- Commingled non-marital property
Exceptions to marital property
i) Property acquired before marriage or exchange for property acquired before the marriage;
ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage;
iii) Property acquired by gift or inheritance, or in exchange for such property
iv) Compensation for personal injuries;
v) Property acquired in exchange for separate property or directly related to an increase in the value of separate party, less any contributions by the other spouse; and
vi) Passive appreciation on separate property.
vii) social security
Factors in equitable distribution
- The income/property of each at the time of the marriage vs at the time the divorce
- The loss of inheritance and pension rights once the marriage has dissolved;
- age and health of the parties
- and the duration of the marriage;
- Maintenance
- Taxes
- Any other factor ct finds just and proper
Spousal Maintenance
awarded in a divorce if one spouse cannot provide for his own needs with employment.
- Preference for a short-term duration
- purpose is to provide the receiving spouse with sufficient monies to maintain the marital standard of living.
Pendente Lite
- temporary maintenance support,
- awarded during the divorce proceedings if:
- one party’s income is less than two-thirds of the other spouse’s income,
- and only if the other spouse’s income meets a minimum amount based on federal poverty guidelines.
Spousal Maintenance Factors
i) The income and property of each spouse, including the amount awarded under the divorce action;
ii) The respective age, mental and physical health of the parties, and the duration of the marriage;
iii) The earning capacity of both parties, both presently and in the future;
iv) The ability of the recipient spouse to become self-supporting and the needs and timeframe in order to accomplish same;
v) Which party has custody of the children;
vi) The tax consequences to each party;
vii) Contribution of the recipient spouse to the earning capacity of the other spouse;
viii) Whether either party engaged in the wasteful disposition of marital assets;
ix) The transfer of property without fair or reasonable consideration;
x) The reduction or lost earning capacity of the spouse seeking assistance due to the delayed or lost education or career opportunities during the marriage; and
xi) Any other factor that the court finds just and proper
Marital Fault
Precludes award if egregious. However, likely only reduces reward.
Modification of spousal support
Standards
- Per party agreement –> must show extreme hardship
- Incorporated separation agreement –> only if recipient spouse is about to become a public charge
- Judicial order –> substantial change in circumstances needs of the dependent spouse or financial abilities of the obligor
Other factors:
- Remarriage
- Cohabitatoin + holding out as marriage
- Interference w/ parenting time
Jurisdiction
Supreme Court
- Divorce
- Equitable distribution
Family & Supreme Court
- custody,
- support, and
- parenting time matters.
Family Court
- Unwed custody dispute
Durational residency requirements
i) If the parties are residents of New York and the cause of action arose in New York, there is no durational residency requirement;
ii) Either party must have one year of continuous residence in New York and one of the following conditions must be met:
a) The parties were married in New York;
b) The parties resided in New York as spouses; or
c) The cause of action arose in New York;
iii) If none of the above requirements can be met, one of the parties must have two years of continuous residence in New York preceding the filing of the complaint.
Ex Parte Divorce
- Personal jx unncessary if ct has jx over marriage itself
- Not allowed for child support & spousal maintenance
NY Long Arm Statute in matrimonial actions
i) New York was the matrimonial domicile before separation;
ii) The D abandoned the P in the state;
iii) The claim for relief accrued under New York law; or
iv) The claim for relief is pursuant to an agreement executed in New York.
Child Support
- Payment by one parent to the other for the support of a common child
- Extends to 21
- Indefinitely for child incapable of support
Paternity by estoppel
- prevent a party from altering his position,
- when another party has relied on it and
- when doing so would cause unreasonable detriment
- when it is in the best interest of the child and when the man has taken on the role of father and has established a bond with the child.
Income Shared Model (Child Support)
In order to calculate the child support award, the court calculates the combined income of the parents including all forms of income by using the parties’ last tax returns. Up to $136,000 of parental income is relevant for procedural purposes. (The cap is adjusted every two years based on the consumer price index.) The court then multiplies the combined income figure based on the number of children. The total child support obligation is then divided between the parents in proportion to their respective incomes. The percentages are:
i) 1 child = 17%;
ii) 2 children = 25%;
iii) 3 children = 29%;
iv) 4 children = 31%; and
v) 5 children or more = No less than 35%.
Deviation from Income Shared Model
must set forth specific findings explaining and supporting the deviation
RIght to paternity test
the court must advise the parties of their right to blood tests to determine paternity and, upon motion, such tests must be ordered.
paternity by estoppel
the best interest of the child and when the man has taken on the role of father and has established a bond with the child.
