NY Family Law

Question 1

Marriage Generally:

Answer 1

NY only recognizes ceremonial marriages (not CL marriages). But of course will recognize CL marriages from OTHER states per FFC clause.

Question 2

Marriage Requirements:

Answer 2

1. License, 2. Solemnization

License (4.4):

1. Age: (a) over 18, (b) 16-18 + parental consent, or (c) 14-16 + parental consent + court consent
2. Waiting period of 24 hours (good for 60 days)
3. Medical testing: A-A need sickle cell anemia test (!)
4. Reasons clerk may deny:
5. Niether party otherwise married
6. Consanguinity: first cousins okay! Adoptive siblings ok! NOT OKAY: siblings, parent, uncle
7. Sham
8. Incapable fo understanding act

Solemnization (2): 1. one witness, and 2 someone to perform (judge, political offical, clergy, etc)

Question 3

License (4.4):

Answer 3

1. Age: (a) over 18, (b) 16-18 + parental consent, or (c) 14-16 + parental consent + court consent
2. Waiting period of 24 hours (good for 60 days)
3. Medical testing: A-A need sickle cell anemia test (!)
4. Reasons clerk may deny:
5. Niether party otherwise married
6. Consanguinity: first cousins okay! Adoptive siblings ok! NOT OKAY: siblings, parent, uncle
7. Sham
8. Incapable fo understanding act

Question 4

Solemnization (2):

Answer 4

1. one witness, and 2 someone to perform (judge, political offical, clergy, etc)

Question 5

Marvin contracts (sex, money):

Answer 5

NOT recognized.

Question 6

Domestic partnerships:

Answer 6

Recognized

Question 7

Heart balm actions:

Answer 7

Not a COA anymore. AND gifts in contemplation (ring) must be returned. ALTHOUGH perhaps some recovery if reliance on promise induced you to suffer some other kinds of harms.

Question 8

Three ways of ending marriage:

Answer 8

annulment, divorce, death

Question 9

Annulment:

Answer 9

valid as of date of annulment decree.

Two types: Can be based on VOID marriage or VOIDABLE marriage

Question 10

Void Marriage (generally, and 4 bases):

Answer 10

marriage that should’ve never taken place, and does not need to be judicially dissolved

BASES: bigamy, incest, incarcerated for life, enooch arden

Enoch arden: GF belief that spouse is dead based on 5 year absence. Must publish petition once a week for three weeks

Question 11

Enoch arden

Answer 11

GF belief that spouse is dead based on 5 year absence. Must publish petition once a week for three weeks

Question 12

Voidable Marriage (5 bases):

Answer 12

Marriage may still be valid. BASES: age, mental incapacity, physical incapacity, “fraud etc”, and mental illness

1. Age: if minor reaches majority, no longer basis; only ground for minor party
2. Mental incapacity: (a) if NORMAL party recognized incapacity then marriage can stand, if (b) INCAPACITATED person can seek anulment in lucid moment, but if no action then cannot later seek. RETARDATION considered obvious and can’t be ground for normal spouse.
3. Physical incapacity: impotent or barren. Not a ground if normal spouse knew of problem. 5 year SOL.
4. “Fraud etc” (i.e. basket of K defenses, ie., fraud misrep, duress, coercion, etc). 3 year SOL. Continuing marriage after knowing of defesne is waiver
5. Persistent mental illness lasting 5 years. ]

Question 13

SOLs re annulment:

Answer 13

5 years for impotency/barren; 3 years for K defenses.

Question 14

Legal Separation Agreements (reqs, grounds, reminders):

Answer 14

Generally: can become basis for divorce (conversion divorce after 1 year), and it is like a K and as such must be voluntarily entered into. REQUIREMENTS: 1 in writing, 2 signed and 3. notarized, 4. separation must occur IMMEDIATELY after agreement, and 5. parties CANNOT obligate spouse to give up support they are otherwise entitled to. GROUNDS: grounds for fault divorce AND failure to support. AND REMEMBER: 1. IF CHILD, then review “best interests” standard.

Question 15

Converting Separation Agreement into Diveorce:

Answer 15

Conversion divorce, can happen after a year. Two things can happen to the Separation Agreement: (1) MERGE into the court’s judgment, in which case the STANDARD to modify is whether there has been “a substantial change in circumstances”; (2) INCORPORATION , where the SA remains separate and is enforeced like a K, in which case the standard for modification is only in “extreme circumstances”

Question 16

Standards for modifying conditions in SA:

Answer 16

merger, then ct order and “substantial change in circumstances”; if incorporation then modification only in extreme circumstances.

SA: JX in Supreme Court.

Question 17

Divorce Types:

Answer 17

No fault, Conversion, and Fault

Question 18

No Fault Divorce (reqs, 2):

Answer 18

Reqs: (1) Parties allege that marriage is “irretrievably broken down,” with one spouse affirming under oath that marriatge is “irretrievably broken” and has been for at least SIX MONTHS and (2) All issues attending divorce (spousal maintenance, distribution of propo, child support/custody) must be resolved BEFORE no fault divorce granted

Question 19

Conversion divorce:

Answer 19

When (1) valid separation agreement exists and (2) parties actually live separately under the agment for 1 year

Question 20

Fault divorce (bases, 4):

Answer 20

adultery, cruel and inhuman treatment, abandonment, imprisonment

ADULTERY: recrimination is a defense; if based on testimony of private investigator or prositute, corroboration is REQUIRED. 5 year SOL from date of discovery.

CRUEL & INHUMAN TREATMENT: requires (1) COURSE of conduct (usually not just one act), (2) that makes continued habitation UNSAFE, (3) facotrs like age of parties, duration of marriage, and objective evidence of harm. 5 year SOL from last occurrence of cruel & inhuman treatment.

ABANDONMENT. Requires (1) absence of justification and absence of consent, (2) must be minimum of 1 year and no intent to resume cohabitation. Sometimes there is CONSTRUCTIVE ABANDOMENT where (a) one spouse forces the other out of the house, (b) willfully and without justification, (c) must include refusal to engage in sexual relations, (d) for over a year.

IMPRISONMENT: for 3 or more years, and only the NON-imprisoned spoouse may raise. 5 year SOL from inmate release.

Question 21

ADULTERY:

Answer 21

recrimination is a defense; if based on testimony of private investigator or prositute, corroboration is REQUIRED. 5 year SOL from date of discovery.

Question 22

CRUEL & INHUMAN TREATMENT:

Answer 22

requires (1) COURSE of conduct (usually not just one act), (2) that makes continued habitation UNSAFE, (3) facotrs like age of parties, duration of marriage, and objective evidence of harm. 5 year SOL from last occurrence of cruel & inhuman treatment.

Question 23

ABANDONMENT.

Answer 23

Requires (1) absence of justification and absence of consent, (2) must be minimum of 1 year and no intent to resume cohabitation. Sometimes there is CONSTRUCTIVE ABANDOMENT where (a) one spouse forces the other out of the house, (b) willfully and without justification, (c) must include refusal to engage in sexual relations, (d) for over a year.

Question 24

IMPRISONMENT:

Answer 24

for 3 or more years, and only the NON-imprisoned spoouse may raise. 5 year SOL from inmate release.

Question 25

DEFENSES to fault-divorce (7):

Answer 25

recrimination, connivance (pimping wife), condonation (forgiveness), collusion, provocation, consent, justification. NOT A DEFENSE: religion.

Question 26

Execptions to spousal immunity:

Answer 26

one spouse cannot testify against the other EXCEPT to (1) prove the marriage took place, (2) disprove adultery,or (3) disprove a defense.

Question 27

Equitable Distribution, generally:

Answer 27

MARITAL PROPERTY is divided FAIRLY based on the totality of the circumstances, and fairly does necessarily mean equally.

Question 28

Marital property (rule, exceptions 6):

Answer 28

generally, everything acquired during marriage. Title doesn’t matter. EXCEPTIONS: 1. prop before marriage 2. by K, prenump, 3. gift/inheritance, 4. prop traceable to separate prop, 5. appreciation by market forces of separate property (unless appreciation by joint investment), 6. personal injury compensation. TRICKY: professional license (loo at PDV of future earning potentional!) ARE marital property; pensions ARE marital property only if they have VESTED; Soc Sec is NOT marital property.

Question 29

Equitable Distribution, venue

Answer 29

Supreme Court

Question 30

Equitable Distribution, factors:

Answer 30

Achieve a fair distribution. ANALYZE EVERYTHING. Some nonexhaustive FACTORS: 1. income at time of marriage and at time of divorce, 2. loss of inheritance and pension rights, 3. age/health of parties, 4. duration of marriage, 5. need for cusotdial parent to occupy residence, 6. spousal support, 7 tax consecuences, 8. irresponsible in reducing marital party? 9. loss of health inusrance, 10. difficulties in valuation, 11. encumbrances, 12. ANY OTHER FACTOR THAT IS JUST AND PROPER.

Question 31

Spousal maintenance (3 types)

Answer 31

Pendente lite, short term, long term

Pendente lite – immediate support during the divorce action
ST spousal maintenace - preferred in NY
LT spousal maintenacne.

Question 32

Spousal maintenance, standard:

Answer 32

Maintain the actual living standard the parites enjoyed during marriage (not simply prevening indigency). Totality of circumstances, interplay with equitable distribution. FACTORS: 1 incomes and property, 2. ages, 3. mental/phys health, 4. income capacity, duration of marriage, 5. custody of child, 6. taxes. TRICKY: marital fault must be EGREGIOUS to be dealt with in maintenance, eg cruel and inhuman.

Question 33

Modifying spousal maintenance standard:

Answer 33

Depends on whether there’s an SA. If no, chnaged circumstances; if yes, then extreme circumstances only.

Question 34

Spousal maintenance ends with:

Answer 34

death or remarriage, BUT NOT cohabitation

Question 35

Spousal vs. child support:

Answer 35

(1) modification: Arrears for child support CANNOT be modified. Arrears for spousal support can be modified for GOOD CAUSE, but not if reduced to judgment. (2) intereference with visitation: paying spouse can suspend SPOUSAL but not child support.

Question 36

JX (Supreme vs. Family Ct) :

Answer 36

Supreme Ct: exclusive jx over divorces and proprerty distribution; concurrent jx over child matters

Family Ct: exclusive jx over child protection cases, juvenile delinquency, adoptions, and PINS cases; concurrent jx over child matters; if parties never married, then ONLY fmaily ct

Question 37

SMJ durational reqs to file matrimonial action:

Answer 37

EITHER (1) both parties are NY residents, (2) one NY resident AND one of three conditions: (a) married in NY, (b) resided in NY as spouses, or (c) COA arose in NY; OR (3) one spouse has continuously lived in NY for 2 years.

Question 38

PJ in divroce

Answer 38

Ex parte divorces if no PJ over both parties, if Ct has SMJ over divorce. Can be collaterally attack only if not a resident.

BUT must have PJ to deal with RELATED MATTERS (property distribution, child support, etc). Result could be DIVISIBLE DIVORCE with decree in NY but other matters dealt with elsewhere.

Long-arm: PJ over absent party for combined issues if 1. NY was matrimonial domicile before separation, 2. D abandoned P in NY, 3. COA arose in NY, or 4. agreement was made in NY.

Question 39

Foreign Divorces:

Answer 39

recognizes foreign divorces if 1 parties appeared, and 2 petitioning spouse was resident of country (BUT Not ex parte foreign divorces.

Question 40

Divorce Fees

Answer 40

must be waived if indigent. No legal right to counsel, but ct discretion to award fees and costs.

Question 41

Child support issue spotting:

Answer 41

paternity, calculating amount, modifying, terminating, post-secondary? Obligation?

Question 42

Child support generally:

Answer 42

Obligation of both parents. Lasts (a) until child raches 21, OR (b) if child is incapable of self-support, then for the rest of child’s life. Support is CHILD’s right.

Question 43

Establishing paternity (standard, SOL, other (2)):

Answer 43

Must be proven by CLEAR AND CONVINCING evidence. Negative blood test is sufficient to disestabliish paternity, but positive blood test is insufficient for C&C: need something more.

SOL: pregnancy or before kid reaches 21.

OTHER: (1) Presumption: married, presumed to be child of father (even if invitro), (2) ex parte temporary support can be awarded, (3) paternity by estaoppel, (4) post-secondary obligation can also be awarded.

Question 44

Test for post-secodnary educaiton

Answer 44

financial means of parties, education of parents, environment in which child grew up, and academic ability of child.

Question 45

Calculating child support:

Answer 45

Three-part calculation: (1) combined income from all sources of mother and father? (2) Apply statutory percentage [1 child = 17%, 2 kids 25%, 3 kids 29%, 4 kids 31 % r, 5 or more kids 35 %; and (3) determine fair share of the contribution, fifty-fifty. DEVIATIONS: can deviate if combined income is over 136,000 OR if specific finding explaining deviation. FACTORS: TOC, eg disparity between incomes, etc, educational needs of parents, nonmonetary contributions etc. “any other relevant factor”

Ct may require purchase of life insurance.

Question 46

Income percentage re child support

Answer 46

Income Percentages: 17, 25, 29, 31, 35; 136,000

Question 47

Modifying Child Support, standard:

Answer 47

Courts require “a substantial change in circumstances” to modify future support. BUT child support arrears CANNOT be modified or foregiven.

Upward modification: change in circumstances warranting increase and increase necessary for best interests of child. USUALLY (a) after 3 years or (b) gross income increase by 15%.

Downward modiciation: change in parent’s financial situation must be 1. unforeseen and 2. involuntary.

Question 48

Termination of Child Support:

Answer 48

(1) at 21, (2) obligated parent dies, (3) child dies, (4) child becomes emancipated (ie indy means of support, eg joins army )

Question 49

JX for Child Support Modificaiton:

Answer 49

home state (that entered the CS order originally) has CONTINUING EXCLUSIVE JX, until (1) no one lives there or (2) the parties consent in writing to the JX of another state. Child Support Order can ONLY be modified by original court.

Uniform Interstate Family Support Act: 
Long arm the extent of DPC.  If need enforcement in different state then 2-step process: (1) seek 	direct enofrcement, (2) registers award in “initiating state” and then sending it to “respondign 	state”.

Question 50

Enforcing Child Support Award:

Answer 50

Civil contmept: arrears continue to accumulate while parent is in prison (spousal support is suspended)
Criminal contempt: when D WILLINGLY does not pay.
Other mechanisms: 1. garnishment, lien, incerpt refunds, supsend license, passport
Ct must have jx over nonpaying spouse.

Question 51

Child Custody, generally and standard:

Answer 51

Two types: legal and physical. Both can be joint, but need not be 50-50. STANDARD: best interests of the child. This standard applies whether Court is deciding the custody arrangement or reviewing the custody arrangements. PRESUMPTION: natural parents presumptively entitled to custody (or visiting time), but subject to BIOC. FACTORS re BIOC: 1 paenting skills, 2. health of parents, 3. willingness to foster relationship with noncustodial parent, 4. lifestyle of kid, 5. child’s wishes if mature, 6. domestic violence (mandatory factor), 7. preference for keeping blood siblings together. NOT FACTORS: race, religion, infidelity.

Question 52

Grandparents in child cusotdy:

Answer 52

may seek visitation but ct will defer to biological parents

Question 53

Interference w visitation

Answer 53

may be grounds to modify SPOUSAL maintenance not CHILD support

Question 54

Modifying Custody Award:

Answer 54

change in circumstances based on the best interests of child. Often this is based on a parent’s desire to RELOCATE. Review relocation request on BIOC: 1. nature of nonmoving parent’s involvement with kid, 2. age, needs of kid, 3. impact on kid, 4. ability to preserve relationship with nonmoving parent, 5. relocation will enhance kids life, 6. moving parent have history of interfereing with rights?

Question 55

Terminating custody order:

Answer 55

custodial parent’s death (suriving parent usually assumes custody) or when child reaches 18

Question 56

Rights of nonmarital children:

Answer 56

right to share in wrongful death damages, but no right to share in inheritnece unless paternity filiation has been filed.

Question 57

Uniform Child Custody Jx Enforcement Act:

Answer 57

Home state has exclusive continuing jx. Home state is where child lived for 6 months or since birth OR where child resided in the last six months and one parent continues to reside. Other forums may grant emergency relief (eg from DV)

Question 58

Types of Marital Agreements:

Answer 58

Premarital, SA, Property Settlement Agreements.

Question 59

Premarital Agreemenets

Answer 59

Contract, so need to meet reqs: 1. consideration, 2. consent, 3. lack of duress (refusal to marry ≠ duress). Child? The BIOC.

Question 60

Property Settlement Agreement (generally, review standard

Answer 60

can be part of or separate from divorce decreee. PSA must be entered into BEFORE divorce decree finalized. Court approves so long as : (1) they are fair, reasonable, and voluntary; (2) made with full disclosure. Heightened review if one side not represented.

Question 61

Adoption types, jx, secrecy:

Answer 61

Two types private placement and agency adoption. Private placement can be brought in family ct or surrogate’s ct. Agency adotpions must be brought in family ct. No jx in Supreme Ct. Adoption records sealed, except for good cause (medical is PF).

Question 62

Private placement rule re $:

Answer 62

Surrogacy Ks are unenforceable, adopting parents can pay medical costs or other preganncy costs, but NO other $.

Question 63

Parents Revoking consent:

Answer 63

Three types: (1) if private placement before judge is IRREVOCABLE, (2) if extra-judicial consent in private placement, then 45 days to revoke; (3) if agency adoption, 30 days to revoke.

Question 64

Father’s consent to adoption:

Answer 64

If putative father fails to register, then adoption can proceed with mother’s consent only. Father only get notice if he’s supported and held himself out as father. For consent to be required there msut be continuous or repeated contact with the child.

Question 65

Childs consent to adoption

Answer 65

Child’s consent: if child is 14 or older, then child MUST consent.

Question 66

Gpas vs. adoptive family:

Answer 66

Biological grandparent may retain visitation even over objections of adoptive family if in BIOC.

Question 67

family criminal offenses & jx:

Answer 67

offenses: talking, harassment, menacing, endangerment. JX: civil in family ct, criminal in criminal corut.

Question 68

Protective orders:

Answer 68

may be ex parte, can last 2 years or 5 yrs, if based on aggravating circumstances.

Question 69

Involuntary Termination, 3 grounds & standard:

Answer 69

Clear and convincing evidence of either: 1. abandonment for at least 6 months, 2. permanent neglect for 1 year, 3. abuse of child or sibling (derivative).

Question 70

Child protection proceedings:

Answer 70

Begun by voluntary reporter (citizen) or mandatory reporter. Report triggers investigation. A petition triggers a FACTFINDING HEARING to determine if abuse took place. RULE: child has right to attorney! RULE: if child is in placement for 15 of 22 months, then agency MUST file petition to involuntarily terminate parental rights.

Question 71

Juvenile delinquency proceedings:

Answer 71

Crimes by minors under age of 16. Can be tried as adult if 17 or 18, alhtough first offenders may be granted youthful offender status and have case tried in family court. VOCABULARY: instead of criminal trial, it’s called a factfinding hearing; instead of sentencing, it’s a “dispositional hearing”. No jury trial right and no bail.

Question 72

PINS

Answer 72

“Person in need of supervision”. Filed in faimly court. Status offense like truancy, being ungovernable etc. Can be placed up to 18 months in foster home. Only available for people up to 18.

Question 73

Abortion

Answer 73

12, 20, 24, notice. Can be preformed up to 24 weeks by woman or doctor. After 24 weeks only allowed if dr. thinks “reasonably necessary” to preserve life of woman. After 12 weeks, abo must be in hospital. After 20 weeks, there must be TWO licensed physicians present, the seond to take care of child if happens to be born alive. No tort liability for refusing doctor only if files notice with practice.

Question 74

RULE STATEMENT (“whether a court may properly dismiss a biological father’s paternity claim when the biological mother’s husband was named on the birth certificate and held himself out as the child’s father”)

Answer 74

Under New York law, there is a presumption that a child born to a woman is the child of that woman and her husband (i.e., a child born in wedlock). Evidence to the contrary must be established by clear and convincing evidence. The presumption does not apply if the husband was not living with the mother at the time of conception. Nonetheless, the doctrine of paternity by estoppel allows a court to declare paternity of a child, regardless of whether the man and child are biologically related, when it is in the best interests of the child, and when the man has taken the role of fatherhood and established a bond with the child.

Question 75

RULE STATEMENT (“whether a non custodial parent may have child support obligations suspended or cancelled based on a custodial parent’s interference with visitation.”)

Answer 75

Child support is the payment by one parent, to the other, for the support of a common child. The law views child support as belonging to the child rather than the parent, and therefore, parents cannot bargain away child support payments, nor can child support payments be cancelled or terminated based on a parent’s conduct. The payment of child support is entirely separate from visitation, and neither can be withheld as a result of noncompliance with a court order involving the other. Moreover, child support arrears cannot be extinguished regardless of the circumstances

Question 76

RULE STATEMENT “whether a parent is entitled to a downward modification of child support based on the parent’s loss of a job.”

Answer 76

New York law 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. Modification is only available for future obligations, and not past arrears. Although there are no set factors considered by the court, the involuntary loss of a job is a relevant factor for consideration.

Question 77

Model answer, grounds for divorce: cruel and unusual

Answer 77

In order to prevail on the grounds of cruel and inhuman treatment the plaintiff must demonstrate:

(i) Conduct must be pleaded with sufficient particularity, including times, dates, and a description of the misconduct. General or conclusory statements that a defendant was cruel are insufficient to make out a cause of action.
(ii) The conduct complained of must be harmful to plaintiff’s physical or mental health or well being. A single incident, or acts that are merely verbal in nature, are frequently insufficient.
(iii) Conduct must make continued cohabitation unsafe or improper. (iv) Conduct of the defendant must be serious.

Question 78

Model answer, grounds for divorce: adultery

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Answer 78

In order to prevail on the grounds of adultery the plaintiff must demonstrate:

(i) Adultery is voluntary sexual intercourse with someone other than one’s spouse. Pleading adultery requires proof of:
a) intent
b) inclination
c) opportunity
(ii) Affirmative defenses include:
a) recrimination
b) procurement or connivance
c) condonation
d) five-year statute of limitations

AN ADMISSION ALONE is insufficient. There must be corroborating evidence.

Question 79

Model Answer: Marital Property, define:

ALWAYS CITE

Answer 79

Marital property is all property acquired during a marriage except gifts, inheritances, personal injury awards, and property agreed between the parties to remain separate. Marital property includes professional licenses. Marital property is subject to equitable distribution.

[W acquired the law license during marriage. Because the license was acquired during marriage and does not fall within any of the enumerated exceptions for gifts, inheritances, personal injury awards, or property separate by agreement, it’s subject to equitable distribution.]

Question 80

Model answer: Marital Property distribution

active/passive line

Answer 80

Inheritances acquired during a marriage are separate property not subject to equitable distribution. While separate property is not subject to rules of equitable distribution, increases in the value of separate property during a marriage is subject to equitable distribution, provided the increase is due to the active management of the property rather than passive appreciation.

Question 80

Model answer: Marital Property distribution

active/passive line

Answer 80

Inheritances acquired during a marriage are separate property not subject to equitable distribution. While separate property is not subject to rules of equitable distribution, increases in the value of separate property during a marriage is subject to equitable distribution, provided the increase is due to the active management of the property rather than passive appreciation.

Question 81

Model answer, Conversion Divorce Rules

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- adultery defense?

Answer 81

In New York, a conversion divorce results from the court’s conversion of a separation agreement into a final divorce decree, after the parties have lived apart from one another for at least A YEAR pursuant to a valid separation agreement. The separation agreement must be SIGNED and NOTARIZED by both parties, and filed with the court before the commencement of the divorce action. A conversion divorce will not be granted when there is a MATERIAL BREACH of the separation agreement. MINOR BREACHES such as a few late payments will not preclude the court from granting the divorce.

New York recognizes several fault-based grounds for divorce and recently began to recognize a no-fault ground for divorce. Adultery is sex outside of the marriage and constitutes one of the fault-based grounds for divorce. Adultery can also serve as an affirmative defense to a cause of action for divorce based on adultery. That is, a plaintiff who sues for divorce based on adultery will not be granted a divorce on those grounds when the plaintiff also committed adultery. Adultery cannot be used as a defense to a conversion divorce.

Question 82

Model answer, downward modification of CHILD and SPOUSAL support

Answer 82

There are a number of legal issues and factors a court should consider at a hearing for downward modification for maintenance and child support. In general, spousal support (“maintenance”) may be modified, even when it has been deemed permanent. If the support award was part of an agreement between the parties, as opposed to court order, the party seeking modification must demonstrate EXTREME HARDSHIP. Otherwise, a modification of a court order requires a demonstration of a SUBSTANTIAL CHANGE IN CIRCUMSTANCES.

Question 83

Child Custody, model answer (IMPORTANT)

Answer 83

The threshold issue in any decision relating to child custody is determining what is in the best interests of the child (BEST INTERESTS!) , and what will best promote the child’s welfare and happiness. When the parties have entered into an agreement as to which parent should have custody, the agreement is NOT CONCLUSIVELY BINDING binding, but it is a weighty factor that will only be disregarded in the case of extraordinary circumstances. This priority is afforded because it enforces a policy of stability in the children’s life which is considered in their best interests.

Other circumstances considered are the QUALITY OF THE HOME environment and the parental guidance the custodial parent provides for the child. While concerns such as the financial status and the ability of each parent to provide for the child will not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child’s EMOTIONAL and INTELLECTUAL development.

Question 84

Model answer, termination of parental rights

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Answer 84

Under New York Domestic Relations Law, a parent’s right to custody of her child can be involuntarily terminated by the courts. In making this determination, the courts look to whether the parent is UNFIT to have custody of her child. The involuntary termination of parental rights typically occurs as part of an ABUSE, NEGLECT, or DEPENDENCY case. A termination of parental rights based on PERMANENT requires a finding that the parent fails, for a period of MORE THAN ONE YEAR following placement in foster care, to PLAN FOR DISCHARGE or to MAINTAIN CONTACT and visit. Before a termination proceeding may be filed under the basis of permanent neglect, the AGENCY who has assumed custody of the child must make diligent attempts to assist the parent in strengthening the parental relationship. Because the termination of parental rights has CONSTITUTIONAL implications, it is considered an EXTREME remedy. Thus, the standard for determining whether termination of parental rights is appropriate is CLEAR AND CONVINCING evidence.

In making its decision, the court must FOCUS ON PERIOD of time after Angie had relinquished custody of Dawn.

• regular contact
• DSS informed???

Question 85

Model answer, Relocating child

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Answer 85

Under New York Domestic Relations Law, a custodial parent seeking to relocate to another state with the child must first obtain COURT APPROVAL to do so. The PREDOMINANT consideration in determining whether relocation is permissible is the BEST INTERESTS OF THE CHILD. The rights and needs of the child must outweigh the rights of both the custodial and noncustodial parents. In considering a petition to relocate, the court has a great deal of DISCRETION. It can consider a number of different factors, including (amongst other FACTORS) the reason each parent has in requesting or opposing the relocation, whether the relocation will enhance the child’s quality of life, and the ability to preserve the relationship between the non-relocating parent and the child through visitation arrangements. The standard for determining the best interests of the child is a PREPONDERANCE OF THE EVIDENCE.

Question 86

Model answer, Relocating child

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Answer 86

Under New York Domestic Relations Law, a custodial parent seeking to relocate to another state with the child must first obtain COURT APPROVAL to do so. The PREDOMINANT consideration in determining whether relocation is permissible is the BEST INTERESTS OF THE CHILD. The rights and needs of the child must outweigh the rights of both the custodial and noncustodial parents. In considering a petition to relocate, the court has a great deal of DISCRETION. It can consider a number of different factors, including (amongst other FACTORS) the reason each parent has in requesting or opposing the relocation, whether the relocation will enhance the child’s quality of life, and the ability to preserve the relationship between the non-relocating parent and the child through visitation arrangements. The standard for determining the best interests of the child is a PREPONDERANCE OF THE EVIDENCE.

Question 87

Out of state divorce judgment vs. out of state award of maintenance

Answer 87

POINT: ex parte divorce okay, ex parte maintenance requires personal jx.

Personal jurisdiction over a nonresident defendant is not necessary for a court to grant a divorce decree terminating the marriage when the court has jurisdiction over the marriage itself. However, personal jurisdiction over the nonresident defendant is required before the court can determine the defendant’s duties and rights relating to both child support and alimony. Accordingly, a court’s decree terminating the marriage can be given full faith and credit but the court’s award or denial of support will not be recognized. New York law permits the extension of personal jurisdiction for support and maintenance to nonresident parties only if the affected party is a New York domiciliary or has, in the recent past, some connection with New York. New York courts will assert long-arm jurisdiction over a nonresident party if New York was the matrimonial domicile of the parties before separation or if the claim for relief accrued under New York law.

Under New York law, judgments for divorce may be obtained ex parte. For an ex parte divorce, the court need only have subject matter jurisdiction over the marriage and may obtain it when the party seeking the divorce is a domiciliary of that state. Personal jurisdiction over a nonresident defendant is not necessary for a court to grant an ex parte divorce. New York grants full faith and credit to a valid divorce obtained in another state even if the grounds would have been insufficient had the party filed in New York.