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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

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 a “how to” book for lawyers. This 836 page 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 aid 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. Table of Contents

Friday, May 30, 2008

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable


In Gulbin v Moss- Gulbin, --- N.Y.S.2d ----, 2007 WL 4197590 (N.Y.A.D. 3 Dept.) the Appellate Division held that Supreme Court erred by awarding plaintiff joint custody of her son from a previous relationship. When the parties married, defendant was already the biological mother of two sons, one of whom was now emancipated. The parties were the biological parents of two more sons. Supreme Court, in reliance upon a long-standing parent/child relationship between plaintiff and defendant's second son, awarded joint custody to the parties with the children's principal residence being with defendant, subject to scheduled visitation rights for plaintiff. Notwithstanding a close and loving relationship, a nonbiological parent does not have standing to request custody or visitation when a biological parent is fit and opposes shared custody or visitation (see Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 655-657 [1991]; Matter of Multari v.Sorrell, 287 A.D.2d 764 [2001]; Matter of Rose v. Walrad, 278 A.D.2d 537, 538 [2000]; Matter of Cindy P. v. Danny P., 206 A.D.2d 615, 616 [1994], lv denied 84 N.Y.2d 808 [1994] ). Despite these cases, plaintiff, in reliance upon Jean Maby H. v. Joseph H. (246 A.D.2d 282 [1998] ), asserted that defendant was equitably estopped from asserting that he lacked standing to seek custody of and visitation with her second son. The Third Department held that "The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (citing Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326 [2006] ). Here, the doctrine was inapplicable. The record revealed that shortly after the parties married, and while this son was only three or four years of age, defendant informed him that plaintiff was not his biological father. Moreover, defendant refused to consent to his adoption by plaintiff precisely for the reason that it would impact on the issue of custody and visitation in the event of a divorce. Under these circumstances, it could not be concluded that defendant led plaintiff to form a reasonable belief that her claim to custody of her second son would not be asserted. Because defendant refused to stipulate as to the custody of this child and plaintiff admitted that defendant was a fit parent, Supreme Court erred in reaching this issue.

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