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Friday, September 15, 2017

New York Matrimonial Trial Handbook, by Joel R. Brandes

The  New York Matrimonial Trial Handbook, by Joel R. Brandes will be in  bookstores and available on line in  October 2017.   Click on the title for more information about the contents of the book.  Click on this link for the complete table of contents.


  
If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to joel@nysdivorce.com with the words “notify me” in the subject line and your email address. The anticipated publication date is October, 2017.

Religious Upbringing Clause in Custody Agreement Cannot Be Enforced Extent it is not in Best Interests of Children or Violates Parent’s Legitimate Due Process Right to Express Oneself and Live Freely.

           In Weisberger v Weisberger, --- N.Y.S.3d ----, 2017 WL 3496090, 2017 N.Y. Slip Op. 06212  (2d Dept., 2017) in their stipulation of settlement dated November 3, 2008, which was incorporated but not merged into their 2009 judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody and the father having specified visitation. The stipulation contained the following religious upbringing clause: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families’. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”The stipulation of settlement further provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.” 

In November  2012, at which time the children were nine, seven, and five years old, respectively, the father moved to modify the stipulation of settlement so as to, inter alia,  award him sole legal and residential custody of the children; award the mother only supervised therapeutic visitation; and  to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.

Supreme Court determined that there had been a change of circumstances caused by the mother’s transition from an ultra Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.” The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently; however, “given the existence of the Agreement’s very clear directives, [the] Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination”. Supreme Court awarded him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother. The court stayed the provision of the order limiting the mother’s visitation to supervised therapeutic visits, conditioned upon, inter alia, her compliance with the religious upbringing clause. Supreme Court enforced the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. The court ordered that during any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”

The Appellate Division modified the order. It observed that to the extent the mother’s sexual orientation was raised at the hearing, courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children. The Appellate Division found that a change of circumstances had occurred, such that a modification of the stipulation of settlement was necessary However, Supreme Court’s determination to modify the stipulation of settlement so as to, inter alia,  award the father sole legal and residential custody of the children, lacked a sound and substantial basis in the record  In pertinent part, the court gave undue weight to the parties’ religious upbringing clause, finding it to be a “paramount factor” in its custody determination. It held that when presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor. Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children. It found that the mother had been the children’s primary caretaker since birth, and their emotional and intellectual development was closely tied to their relationship with her. The mother took care of the children’s physical and emotional needs both during and after the marriage, while the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation. Aside from objecting to her decision to expose the children to views to which he personally objected, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.

Furthermore, the Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement which required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. The plain language of the parties’ agreement was “to give the children a Hasidic upbringing”. The parties’ agreement did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle. At a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise” (Lee v. Weisman, 505 U.S. at 587). Thus, it held that  a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely (see Lawrence v. Texas, 539 U.S. 558, 574. The parties themselves agreed in the stipulation of settlement that they “shall [each] be free from interference, authority and control, direct or indirect, by the other” (emphasis added). The weight of the evidence did not support the conclusion that it was in the children’s best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There was no indication or allegation that the mother’s feelings and beliefs were  not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there had been no showing that they are inherently harmful to the children’s well-being.

The evidence at the hearing established that the children  spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. The weight of the evidence demonstrated that it was in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. It directed the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.

Tuesday, August 29, 2017

The New York Matrimonial Trial Handbook, by Joel R. Brandes



The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is not a treatise. It is a “how to” book for lawyers. This 800 page handbook is a companion work to Law and the Family New York, 2d (Thomson Reuters Westlaw), which contains extensive coverage of the substantive and procedural law related to matrimonial actions and family court proceedings. 


The New York Matrimonial Trial Handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof.  There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.


The  New York Matrimonial Trial Handbook, by Joel R. Brandes will be in  bookstores and available on line in  October 2017.   Click on the title for more information about the contents of the book.  Click on this link for the complete table of contents.
  
If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to joel@nysdivorce.com with the words “notify me” in the subject line and your email address. The anticipated publication date is October, 2017.


Chief Administrative Judge Adopts New Rules for Matrimonial Actions



By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3).

The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which  is effective August 1, 2017, provides as follows:


202.50. Proposed Judgments in Matrimonial Actions; Forms
* * *
(b) Approved Forms.
* * *
(3) Additional Requirement with Respect to Uncontested and Contested
Judgments of Divorce. In addition to satisfying the requirements of
paragraphs (1) and (2) of this subdivision, every judgment of divorce,
whether uncontested or contested, shall include language substantially in
accordance with the following decretal paragraphs which shall supersede
any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into
between the parties on the ___ day of ____, [ ] an original OR [ ] a
transcript of which is on file with this Court and incorporated herein by
reference, shall survive and shall not be merged into this judgment, * and
the parties are hereby directed to comply with all legally enforceable terms
and conditions of said agreement as if such terms and conditions were set
forth in their entirety herein; and it is further

* In contested actions, this paragraph may read either [shall survive and
shall not be merged into this judgment] or [shall not survive and shall be
merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain
jurisdiction to hear any applications to enforce the provisions of said
Settlement Agreement or to enforce or modify the provisions of this
judgment, provided the court retains jurisdiction of the matter concurrently
with the Family Court for the purpose of specifically enforcing, such of the
provisions of that (separation agreement) (stipulation agreement) as are
capable of specific enforcement, to the extent permitted by law, and of
modifying such judgment with respect to maintenance, support, custody or
visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme
Court to enforce the provisions of said Settlement Agreement or to enforce
or modify the provisions of this judgment shall be brought in a County
wherein one of the parties resides; provided that if there are minor children
of the marriage, such applications shall be brought in a county wherein one
of the parties or the child or children reside, except. in the discretion of the
judge, for good cause. Good cause applications shall be made by motion or
order to show cause. Where the address of either party and any child or
children is unknown and not a matter of public record, or is subject to an
existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such
applications may be brought in the county where the judgment was entered;
and it is further



By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to  add a new section 202.16-b.
The new section addresses the submission of written applications in contested matrimonial actions. 

The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which  is effective July  1, 2017, provides as follows:


§202.16-b Submission of Written Applications in Contested Matrimonial
Actions.

(1) Applicability. This section shall be applicable to all contested
matrimonial actions and proceedings in Supreme Court authorized by
subdivision (2) of Part B of section 236 of the Domestic Relations Law.

(2) Unless otherwise expressly provided by any provision of the CPLR or
other statute, and in addition to the requirements of 22 NYCRR §202.16 (k)
where applicable, the following rules and limitations are required for the
submission of papers on pendente lite applications for alimony,
maintenance, counsel fees, child support, exclusive occupancy, custody and
visitation unless said requirements are waived by the judge for good cause
shown:

(i) Applications that are deemed an emergency must comply with 22
NYCRR §202.7 and provide for notice, where applicable, in accordance with
same. These emergency applications shall receive a preference by the clerk
for processing and the court for signature. Designating an application as an
emergency without good cause may be punishable by the issuance of
sanctions pursuant to Part 130 of the Rules of the Chief Administrative
Judge. Any application designated as an emergency without good cause
shall be processed and considered in the ordinary course of local court
procedures.

(ii) Where practicable. all orders to show cause, motions or crossmotions
for relief should be made in one order to show cause or motion or
cross-motion.

(iii) All orders to show cause and motions or cross motions shall be
submitted on one-sided copy except as otherwise provided in 22 NYCRR
§202.5(at or electronically where authorized, with one-inch margins on
eight and one half by eleven (8.5 x 11) inch paper with all additional
exhibits tabbed. They shall be in Times New Roman font 12 and double
spaced. They must be of sufficient quality ink to allow for the reading and
proper scanning of the documents. Self-represented litigants may submit
handwritten applications provided that the handwriting is legible and
otherwise in conformity with these rules.

(iv) The supporting affidavit or affidavit in opposition or attorney
affirmation in support or opposition or memorandum of law shall not exceed
twenty (20) pages. Any expert affidavit required shall not exceed eight (8)
additional pages. Any attorney affirmation in support or opposition or
memorandum of law shall contain only discussion and argument on issues
of law except for facts known only to the attorney. Any reply affidavits or
affirmations to the extent permitted shall not exceed ten (10) pages. Surreply
affidavits can only be submitted with prior court permission.

(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16
(b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the
Appellate Division). maintenance guidelines worksheets and/or child
support worksheets, or counsel fee billing statements or affirmations or
affidavits related to counsel fees (pursuant to Domestic Relations Law §237
and 22 NYCRR §202.16(k))' all of which may include attachments thereto,
all exhibits annexed to any motion, cross motion, order to show cause,
opposition or reply may not be greater than three (3) inches thick without
prior permission of the court. All exhibits must contain exhibit tabs.

(vi) If the application or responsive papers exceed the page or size
limitation provided in this section, counsel or the self-represented litigant
must certify in good faith the need to exceed such limitation, and the court
may reject or require revision of the application if the court deems the
reasons insufficient.

(3) Nothing contained herein shall prevent a judge or justice of the court or
of a judicial district within which the court sits from establishing local part
rules to the contrary or in addition to these rules.



By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060.
(see https://childsupport.ny.gov/dcse/child_support_standards.html).


               

Parties May Chart Their Own Litigation Course by Agreement Which Courts Are Bound to Enforce. Waiver of Physician-patient Privilege in Contesting Custody Requires Showing That Resolution of Custody Issue Requires Revelation of Protected Material



        In Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) the plaintiff commenced an action for a divorce, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to Domestic Relations Law § 170(7). After a nonjury trial, the Supreme Court, inter alia, awarded the defendant a divorce on the ground of cruel and inhuman treatment. The Appellate Division held that  Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. "Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce" (Matter of New York, Lackawanna & W. R.R. Co., 98 N.Y. 447, 453). There was no showing of cause sufficient to invalidate the parties' stipulation to a divorce on the ground of an irretrievable breakdown of the marital relationship. Accordingly, the court should have awarded the defendant a divorce on this ground.

        The Appellate Division found, inter alia, that the Supreme Court, relying on the physician-patient privilege, improperly precluded testimony of two witnesses who were doctors, regarding the defendant's mental health. It noted that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition by actively contesting custody. However, there "first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (McDonald v. McDonald, 196 A.D.2d 7, 13; see Baecher v. Baecher, 58 A.D.2d 821). Since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of the doctors regarding the defendant's mental health.


Authors note: In McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) the Second Department adopted the requirement of Perry v Fiumano, 61 AD2d 512, 519 that before the court may find that there has been a waiver of the physician-patient privilege "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (Perry v Fiumano, 61 AD2d 512, 519).