The Hon. W. Dennis Duggan of the Albany County Family Court recently held that a non-custodial parental still retains parental decision-making authority even when that parent is not empowered to make decisions regarding the health, education and welfare of a child. 

In this case, the custodial mother sought to have the non-custodial father held in contempt due to changing the dosage of their fifteen-year-old daughter’s medication during the father’s parenting time.  The father is a physician and believed that the dosage of their daughter’s prescription was inappropriate. 

Judge Duggan stated, “While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant….the parent who is caring for a child, whether or not he has sole custody, has a residual authority to make decisions in the child’s best interest that are called for by the immediate circumstances–even if those decisions might overlap with or intrude upon the other parent’s ‘sole custody’ authority”.  Judge Duggan determined that overmedicating a child is an exigent circumstance, requiring immediate action.

In Gaffney-Romanello v. Romanello, a Supreme Court Justice in Suffolk County determined that a husband had retained a new attorney merely to cause the presiding judge to recuse himself from a matrimonial action.  Instead of recusing himself, the judge ordered the husband to hire a new attorney.   

In Gaffney-Romanello, the wife commenced the divorce action in 2007.  Approximately two years later, the parties represented to the Court that they were on the verge of reaching a settlement.  However, in April 2009, the husband fired the firm that had been representing himself and retained new counsel, a Mr. H.  

The presiding justice for the parties’ divorce action had previously forwarded a disciplinary matter to the grievance committed pertaining to Mr. H.  As a result, the judge had recused himself from all cases handled by that attorney. 

The prior disciplinary matter had been limited to Mr. H. personally and not his firm.  Thus, the judge questioned Mr. H. if he intended to represent the husband in the pending matrimonial action, or if one of his three partners would be handling the matter.  Each of those partners was well versed in matrimonial law.

 Mr. H. informed the Court that only he would be representing the husband and thereafter sought the judge’s recusal.  The judge denied the husband’s request for recusal, given the previous representation to the Court that the parties had settled the matter.  The judge also determined that the husband was forum shopping, stating, “The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant’s right to this specific counsel.”  “Clearly the Defendant, who had previous counsel…hired Mr. H. solely to forum shop,”

The New York Times printed an article on September 2, 2009 bringing light to an often unrecognized wartime stress on military families:  custody battles during and after service abroad. 

The article focused on Leydi Mendoza, a specialist with the New Jersey National Guard who returned from fighting in Iraq to confront a custody battle with the father of her two-year-old daughter. 

Mendoza and the child’s father had established a written family care plan with military officials that provided for shared custody when she returned from service in Iraq.  Upon her return, however, the father demanded full custody of their daughter, claiming that it was too disruptive for their daughter to spend more than a few hours with a mother she did not know.  After a three month battle, the Family Court judge granted temporary residential custody to the father but permitted daily visits and weekly sleepovers to Mendoza. 

In a similar New York case, when Tanya Towne’s National Guard unit was deployed to Irag in 2004, a family court judge granted temporary of her son to the father.  Towne and the child’s father were divorced and Towne had had primary custody of the child.  Before Towne returned home from service, the father sought permanent custody of the child.  Family Court granted that request and Towne appealed.  The Appellate Division affirmed the Family Court’s ruling.  Though calling her an excellent mother, the judges determined that the deployment and other changes in Towne’s life, including the breakup of her second marriage, contributed toward an unstable home life.

A 2008 New York statute does provide some protection for military parents in custody cases.  The statute requires that custody cases be delayed for at least 90 days during a parent’s overseas deployment and attorneys must be appointed to represent military parents.  However, there is still no protection against a change in custody based upon military service.

In Johnson v. Chapin, 12 N.Y.3d 461 (2009), the trial court awarded temporary maintenance to the wife and child support based upon an estimation of the husband’s income.  At trial, it was determined that the Husband in fact earned a lower income than estimated.  The Husband sought a credit for his the overpayments of temporary spousal maintenance and child support paid to the Wife.

The court provided the husband a credit for the overpayment of spousal maintenance.  On Appeal, the Court of Appeals held that this credit was permissible as an acceptable exercise of discretion by the trial court.

However, the husband was not provided with a credit for the overpayment of temporary child support as calculated on his estimated income.  The Appellate Division and Court of Appeals denied the Husband’s request, with the Court of Appeals providing that there is “a strong public policy against restitution or recoupment of [child] support overpayments.” 

Given this ruling, it is imperative the litigants and their attorneys strive to provide the trial court with complete documentation and accurate income data prior to the award of temporary child support.

In Mathie v. Mathie, 2009 NY Slip Op 6124 (2^nd Dep’t 2009), the parties divorced in 2005 after entering into a stipulation of settlement which provided for joint legal custody of their son, Ryan, with physical custody to the mother and visitation to the father. 

The parties’ stipulation stated that the mother was to reside in Nassau or Suffolk County for so long as the father resided in one of those counties.  The negotiated parenting schedule for the father consisted of alternate weekends, except to accommodate the father’s hunting schedule.  The father did not request time with Ryan during several major holidays, school vacations, or summer vacations. 

As a result of the father not regularly seeing or communicating with Ryan in 2005, Ryan’s schoolwork suffered and he became depressed.  Ryan’s therapist suggested that the father visit with Ryan during Monday evenings and Friday evenings when he did not have weekend visitation.  By the following summer, the father had cancelled most Monday visits with Ryan. 

In 2006, the mother remarried and informed the father that she wished to move with Ryan to New Jersey to live with her new husband.  The father objected and the mother instituted an action to allow her to relocate to New Jersey with their son.  While the father filed a counterclaim for an award of attorney’s fees, he did not seek custody of Ryan as an alternative to the mother’s relocation application.

On the appeal, the Court stated that when parties enter into a stipulation to resolve custody, those stipulations will not be modified unless there is a sufficient change in circumstances and modification is in the best interests of the child.  The Court further provided that the parent seeking the relocation must justify their interest as against the non-custodial parent’s fundamental right to frequent access or visitation. 

The factors that must be considered in this type of case include each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements. 

In Mathie, the mother had been residing with Ryan in Long Island during the week to enable visitation by the father.  She resided in New Jersey with Ryan during her custodial weekends, and Ryan resided at the father’s home during the father’s custodial weekends.  As a result, Ryan had no sense of permanency and was living in three different homes. 

The Court determined that the mother had established that the Ryan’s best interest would be served by permitting the relocation, even though the relocation would result in more travel, approximately 60 miles to the father’s home.  Ryan would benefit from an extensive family support system in New Jersey, including the mother’s new husband and his children, the mother’s brother-in-law and his children, and the mother’s cousin and her children.  Additionally, the mother offered to be responsible for transportation of Ryan to and from the father’s house, causing the father no additional travel burden.

An annulment is a matrimonial action instituted in the New York State Supreme Court to declare a marriage null and void.  Two types of marriages may be subject to an annulment:  a void marriage, which is void at its inception and thus never legitimate, and a voidable marriage, which can be voided only by a court judgment.  A voidable marriage is void from the date of the judgment of nullity. 

The following marriages are void:  incestuous; bigamous; and marriages performed by an unauthorized person.  An incestuous marriage occurs between an ancestor and a descendant, such as a mother and son, between siblings, or between an uncle and niece or an aunt and nephew.  A bigamous marriage occurs when one spouse marries a third person despite the fact that his or her prior spouse is still alive and the marriage has not been dissolved. 

The following marriages are voidable:  when one or both spouses are under the age of consent, when one or both spouses are mentally incapable of consenting to the marriage, when one or both spouses are physically incapable of consenting to the marriage, and when one or more spouses are coerced into the marriage.

The age of consent to marriage in New York State is eighteen-years-old.  For a person under the age of eighteen-years-old to become married, written consent of both of the underage spouse’s parents is required.  For a person under the age of sixteen-years-old to marry, parental consent and a judge’s order are necessary.  No one under the age of fourteen is permitted to marry.  A person under the age of eighteen as well as a parent of the underage spouse and/or the underage spouse’s guardian may seek to have the marriage annulled.   It is in the Court’s discretion to grant an annulment due to the spouse’s age, taking into consideration all of the facts and circumstances of the marriage.  The right to seek an annulment due to being under the age of consent terminates when the spouse reaches the age of 18.

In an action to determine a marriage voidable due to want of understanding, the Court will determine if the parties were capable of fully understanding the nature of the marital relationship and its consequences.  An annulment action for want of understanding may be based upon the mental retardation or mental illness of a spouse.  An action brought due to mental illness may be brought by the mentally ill spouse when the illness has been cured, so long as he or she does not continue to cohabit with the spouse, which ratifies the marriage, i.e., makes it valid.  The spouse who is not suffering from mental illness may file to have the marriage determined voidable if:  the other spouse was mentally ill at the time of the marriage, the non-mentally ill spouse was not aware of the illness, the action was brought as soon as the non-mentally ill spouse learned of the illness and the mental illness is present when the annulment is sought.

A spouse may seek to have a marriage declared voidable when the other is unable to have sexual relations due to an incurable condition (not sterility).  An annulment action brought for this cause must be filed within five years after the marriage.

Both parties to a marriage must knowingly consent to the marriage of their own free will.  A marriage may be annulled if either party consents to the marriage due to duress, force or fraud.  An action for this cause may be brought by a spouse, a parent of a spouse or a relative of a spouse who has an interest in annulling the marriage. 

Finally, an annulment may be spouse if one spouse develops an incurable mental illness for five or more years.  The mental illness can develop after the marriage.

New York Penal Law §250.05 provides that a spouse is guilty of eavesdropping, a class E felony, when he or she unlawfully “engages in wiretapping, mechanical overhearing of a conversation or intercepting or accessing of an electronic communication”.  

If you record your spouse’s electronic communications through the use of keystroke software, automatic session logs, or the copying of sent or received emails, your may be charged with eavesdropping. 

If you simply possess eavesdropping technology or equipment which is designed to wiretap or mechanically overhear a conversation, you may be charged with a class A misdemeanor.

New York Civil Practice Law and Rules §4506(1) provides that any communication obtained through the use of illegal eavesdropping cannot be used as evidence in any trial, hearing or proceeding before any court, except in a civil or criminal hearing against the person alleged to have eavesdropped.

In Cordova v. Cordova, (2d Dep’t 2009), the Supreme Court held the husband in contempt for his willful failure to comply with a stipulation of settlement because he knew at the time of entering into the stipulation that he had misrepresented the extent of his equity share in the marital residence.

The parties stipulated that the husband would retain the marital residence and that he would pay the wife $144,000 for her share of equity in the property.  The property had been owned by the husband and his two sisters.  However, the husband represented to the wife and the Court that the marital property was titled to him, purchased with marital funds.  Despite the stipulation, the husband did not refinance the property to buy out the wife’s share of equity.  He instead transferred the property to his two sisters by quitclaim deed. 

The wife moved for an order of contempt after failing to receive the $144,000 payment.  The husband commenced an action to vacate or modify the stipulation on the ground of mutual mistake, claiming that the recital in the stipulation that he was the titled owner of the marital residence was incorrect, as was the assertion that the property had been purchased with marital funds. 

The Appellate Division affirmed the Supreme Court’s holding of contempt because the former husband acknowledged that he knew when he signed the stipulation that his characterization of the ownership of the property was incorrect and he had no intention of complying with his obligation under the agreement.

In Marcia T. v. Raymond W., 2009 NY Slip Op 51883U (Albany County 2009), a father who had filed for Chapter 13 bankruptcy argued that this bankruptcy filing should stay the confirmation of a finding that he willfully violated a prior support order.  His argument relies on the automatic stay provisions of the bankruptcy code which provide that the filing of a bankruptcy petition operates as a stay for actions to recover a claim against the debtor that arose prior to the commencement of the case.   

The Family Court agreed with the father and held that his filing under Chapter 13 of the U.S. Bankruptcy Code stays all proceedings to collect prior claims against the debtor and his property.  Because the debtor must make payments to creditors from his post-filing earnings, those earnings are the property of the Chapter 13 bankruptcy “estate”. 

 However, although the Court held that it was precluded allowing a recovery of arrears while the Chapter 13 bankruptcy plan was in effect, it was not prohibited from confirming the willful violation finding and simply staying enforcement until the Chapter 13 bankruptcy plan was completed. 

The Court held that if the payment of arrears to the mother was not satisfied by the time the bankruptcy plan was completed, the mother could restore the violation to the Family Court’s calendar to seek the payment of arrears owed to her.

 In 2004, the Husband stopped payments to the Wife claiming that she was cohabiting with an unrelated person who had stayed overnight at the Wife’s residence for at least sixty days and that their relationship was similar to that of lover and life partner.  The Wife claimed that she had not been cohabiting with the unrelated person because their relationship had been platonic for many years.

 The Supreme Court held that because the term cohabitation was not defined in the settlement agreement, its plain meaning applied: living together as partners in life, usually with the involvement of sexual relations.  The Supreme Court held that cohabitation had not occurred in this case and sided in favor of the Wife.

 The Appellate Division, 1^st Department agreed with the Supreme Court and also noted that no evidence had been introduced that the Wife and the unrelated person shared household expenses or functioned as an economic unit.  Thus, no cohabitation had occurred.

The Court of Appeals reversed, declining to take the position that cohabitants must function as an economic unit.  The Court held that without extrinsic evidence as to the parties’ intent regarding the definition of cohabitation in the settlement agreement, there is no way to assess what was meant by that term.  The Court remitted the matter for a hearing on the parties’ intent behind the term cohabitation.