Search This Blog

New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and The Family New York, 2d (9 volumes) (Thomson Reuters), is both a treatise and a procedural guide. The text analyzes every aspect of New York Family Law. Law and the Family New York Forms, 2d (New York Practice Library, 5 Volumes) provides practitioner-tested forms for New York divorce and family law matters.

Wednesday, August 31, 2016

Court of Appeals Overrules Matter of Alison D. and re-defines meaning of "parent" for custody and visitation purposes

           In Matter of Brooke S.B., v Elizabeth A. C.C., two related cases, the Court of Appeals revisited  Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) which held that in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's "parent" for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their "established relationship with the child".  The Court of Appeals agreed that the Petitioners in these cases, who similarly lacked any biological or adoptive connection to the children, should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a) in light of more recently delineated legal principles, which required it to conclude that that definition of "parent" established by it in Alison D. has become unworkable when applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam overruled Alison D. and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.  

          The Court of Appeals pointed out that the petitioners had argued that its holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires it to specify the limited circumstances in which such a person has standing as a "parent" under Domestic Relations Law § 70.  It observed that because of the fundamental rights to which biological and adoptive parents are entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be appropriately narrow.  It rejected the premise that it must now declare that one test would be appropriate for all situations, or that the competing tests proffered by Petitioners and amici were the only options that should be considered.  It noted that the Petitioners had alleged in both cases before it that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.  It held that these allegations, if proven by clear and convincing evidence, were sufficient to establish standing.  Because it decided these cases based on the facts presented to it, it was premature for the Court to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. The Court specified that it did not decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Inasmuch as the conception test applied here, it did not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.  It merely concluded that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.  Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel was a matter left for another day, upon a different record. The Court stressed that its decision addressed only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.   The Court of Appeals agreed that the Petitioners in these cases, who similarly lacked any biological or adoptive connection to the children, should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a) in light of more recently delineated legal principles, which required it to conclude that that definition of "parent" established by it in Alison D. has become unworkable when applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam overruled Alison D. and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.  


          The Court of Appeals pointed out that the petitioners had argued that its holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires it to specify the limited circumstances in which such a person has standing as a "parent" under Domestic Relations Law § 70.  It observed that because of the fundamental rights to which biological and adoptive parents are entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be appropriately narrow.  It rejected the premise that it must now declare that one test would be appropriate for all situations, or that the competing tests proffered by Petitioners and amici were the only options that should be considered.  It noted that the Petitioners had alleged in both cases before it that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.  It held that these allegations, if proven by clear and convincing evidence, were sufficient to establish standing.  Because it decided these cases based on the facts presented to it, it was premature for the Court to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. The Court specified that it did not decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Inasmuch as the conception test applied here, it did not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.  It merely concluded that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.  Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel was a matter left for another day, upon a different record. The Court stressed that its decision addressed only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.