Summary of Laws of 2010 New York Family Law Legislation

Summary of Laws of 2010 New York Family Law Legislation (September 18, 2010)


Chapter 32

Amends Domestic Relations Law §236 [B][2][b][2]

Exempts from the automatic orders provisions prohibiting transfer of any retirement plan upon commencement of a matrimonial action when the retirement plan is already paying benefits. Effective date March 30, 2010


Chapter 41

Amends CPLR 1101; Amends Domestic Relations Law §§ 236, 75-f, 76-f, 112-b, 113, 115-b, 240 & 254, ; Amends Executive Law §§ 503 & 508; Amends Judiciary Law §§ 35 & 35-a; Amends Family Court Act, generally; Amends Public Health Law §§ 2306 & 2782; Amends Social Services Law §§ 358-a, 372, 383-c, 384, 384-a, 384-b, 409-e, 409-f & 422.

Replaces the term "law guardian" with the term "attorney for the child" to more accurately reflect the attorney's role. Effective date April 14, 2010.


Chapter 182

Amends Tax Law §§ 606, 171-a, 171-h & 697, Tax Law ; amends Family Court §§ Act 451, 461 & 440, adds Family Court Act §437-a; amends Domestic Relations Law §236; amends Social Services Law §111-h.

The "Low Income Support Obligation and Performance Improvement Act." Laws of 2010, Ch 186, § 1, effective October 13, 2010.

Family Court Act § 451 is amended to provide two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section would provide that incarceration is not a bar to finding a substantial change in circumstances under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under Family Court Act § 440. Also conforms the language of the Family Court Act provision governing the modification of child support orders to the Domestic Relations Law so that both provisions provide for a "substantial change in circumstances" as a basis for modification of an order of child support. Laws of 2010, Ch 182, §6 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)

Domestic Relations Law § 236 [B](9)(b) is amended by separating out the "substantial change of circumstances" basis for modification of child support orders into its own section for clarity and provides two new bases for the modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This provision provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions. Laws of 2010, Ch 186, § 7 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)


Family Court Act §440 is amended to add a subdivision 4 which requires that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circumstances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 8.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Domestic Relations Law § 236 [B](7) is amended to add a new subdivision (d) which require that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circum stances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 9.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Family Court Act § 437-a is added to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits. Laws of 2010, Ch 186, § 10.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Social Services Law § 111-h is amended to state that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent's income is derived from the work activity or program. Laws of 2010, Ch 186, § 11. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Family Court Act § 461 is amended to reflect the two new bases for modification of an order of child support. Laws of 2010, Ch 186, § 12. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

These provisions are effective October 13, 2010, except that: (1) sections 6 and 7 only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13


Chapter 325

Amends Family Court Act § 842

Authorizes the family court in family offense proceedings to extend an order of protection upon the showing of good cause or consent of the parties. Effective date August 13, 2010. ( § 3.This act shall take effect immediately, and shall apply to all orders entered prior to such effective date, and to all actions and proceedings pending on or commenced on or after such effective date.) Laws of 2010, Ch 325 (8.13.10)


Chapter 329

Amends Domestic Relations Law § § 237 & 238.

Laws of 2010, Ch 329, as amended by Laws of 2010, Ch 415, effective October 12, 2010, amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded “actions to enforce a court order”.


Chapter 341

Amends Family Court Act §§ 446, 551, 656, 759 and 1056 . Amends Domestic Relations Law § 240(3)(e). Amends Family Court Act 812 (1). Amends Family Court Act 842.

Provides that orders of protection shall not be denied, in support proceedings, paternity proceedings, termination of parental rights proceedings, person in need of supervision proceedings, family offense proceedings and child protective proceedings, solely on the basis that the events alleged are not contemporaneous with the application therefor or the conclusion of the action. Effective date August 13, 2010. Laws of 2010, Ch 341 (8.13.10)

In addition these sections provide that the duration of any temporary order
shall not by itself determine the length or issuance of any final order.

According to the Assembly Memorandum this legislation is intended to overturn a line of Appellate Division cases that have attempted to institute a statute of limitations on incidents of abuse that a victim of domestic violence may plead and prove, where the legislature specifically did not institute one. (See, Yoba v. Yoba, 183 A.D.2d 418(1st Dept.,1992); Swersky v. Swersky, 299 A.D.2d 540(2d Dept., 2002); Thomas v. Thomas, 32 A.D.3d 521 (2d Dept., 2006);Matter of Ashley P., 31 A.D.3d 767 (2d Dept., 2006); Matter of Ann P. v.Nicholas C.F., 44 A.D.3d 776 (2d Dept., 2007); Matter of Hall v. Hall, 45 A.D.2d 842 (2d Dept., 2007); Matter of Loriann Q. v. Frank R., 53 A.D.3d 735 (3d Dept., 2008), denying civil orders of protection as a primary, or as a secondary basis, because the incidents pled were not "relatively contemporaneous"). The memorandum states that there is a disturbing trend in the Family, Supreme and Integrated Domestic Violence Courts of denying civil orders of protection where incidents of abuse alleged are considered by the courts as not "relatively contemporaneous" with the filing of the petition, the findings of fact, or the dispositional stage of the proceeding, presumably in reliance on the Appellate Division cases. Furthermore, some trial courts have been denying a final order order or protection on the basis that the temporary order of protection was in effect for too long. This legislation is also intended to address such denials of final orders of protection that are based on the duration of a temporary order issued during the pendency of a case. It is important for a court to hear and consider the history of violence to craft a careful and meaningful order that accomplishes the purpose of securing safety. Allegations that are more remote in time can give the finder of fact an enormous amount of information including how long the violent relationship has lasted so the finder of fact can craft a meaningful order of protection. Any incident of abuse that precipitates the filing for an order of protection must be viewed in the context of the history of the pattern of abuse suffered by the applicant and there is no statutory requirement to limit incidents pled to be within a specific period of time.
See NY Legis Memo 341(2010)



Chapter 342

Amends Family Court Act §§1055, 1087, 1088, 1089 & 1090; Adds Article 10-B, Section 109; Amends Social Services Law § § 371 & 409-a.

Relates to trial discharges of children in foster care and voluntary re-placements of older adolescents in foster care; amends the provisions of Articles 10 and 10-A of the Family Court Act to extend trial discharges at court permanency hearings for successive periods of up to six months until a child turns 21. The trial discharges require the consent of the child. The law also adds a new Article 10-B to permit youths between 18 and 21 who have opted to leave state care within the past 24 months to seek to return voluntarily. In such cases, the court must find that the youth has no reasonable alternatives to foster care, that he or she consents to an appropriate vocational or educational program and that a return would be in his or her best interests. Attorneys who previously represented the youths would continue to do so.

Laws of 2010, Ch 342. Effective November 11, 2010.



Chapter 343

Adds Family Court Act Article 6 Part 1-A, Sections 635 - 637; Amends Family Court Act §1089; Amends Social Services Law §384-b.

Provides a process for a petition to restore previously terminated parental rights under certain circumstances.

Effective date November 11, 2010 (§ 4. This act shall take effect on the ninetieth day after it shall have become a law. Laws of 2010, Ch 343).

This legislation amends the provisions of the Family Court Act and the Social Services Law to authorize Family Court, in narrowly-defined circumstances, to restore a birth parent's parental rights after they have been terminated. With the consent of the respondent in the original termination of parental rights proceeding, as well as that of the child, a petition to restore parental rights could be filed provided: (i) at least two years had elapsed since issuance of the order transferring guardianship and custody of the child; (ii) the original adjudication terminating parental rights could not have been based upon severe or repeated child abuse; and (iii) the child would have to be under the jurisdiction of the Family Court and have a permanency goal other than adoption. The agency to which guardianship and custody had been committed must consent unless the court finds that the consent had been withheld without good cause. Family Court is authorized to grant the petition where clear and convincing proof establishes that restoration of parental rights would be in the child's best interests. This restoration would, in effect, revoke the disposition transferring guardianship and custody of the child but would leave in place the fact-finding upon which the termination of parental rights adjudication had been based. A clause also would be added to the permanency hearing order provision permitting the Court to recommend the filing of a petition to restore parental rights.

The court has the authority to grant the restoration petition conditionally. This option would retain guardianship and custody of the child with the agency but authorize the child to reside with the birth parent on a trial discharge for a period of up. to six months, during which time the agency may be directed to supervise the family and to develop a reunification plan with appropriate transitional services. If temporary restoration proves successful and in the child's best interests, it could be made final at the end of the designated period and guardianship and custody would be transferred at that time to the birth parent. If, however, the child were removed from the birth parent during the designated period by reason of abuse or neglect, the Court could dismiss the restoration petition and direct the agency that retains guardianship and custody to make efforts to further an alternative permanency plan for the child. See NY Legis Memo 343 (2010).


Chapter 363

Repealed & Added Judiciary Law §212 sub 2 P(n).

Extends for two years authorization of courts to designate referees to determine order-of-protection applications by Family Courts based, in part, on ex parte conversations. The state empowered the referees to issue the orders when first approving their use against non-family members in 2008. Grants the chief administrator of the courts the authority to allow referees to determine applications to a family court for an order of protection when such application is made ex parte or without the presence of all the parties except the applicant; specifies that such provisions shall only apply during those hours that the family court is in session and after 5:00 p.m.

Effective date August 13, 2010. (Laws of 2010, Ch 363 effective 8.13.10 (This act shall take effect immediately; provided that paragraph (n) of subdivision 2 of section 212 of the judiciary law, as Added by section one of this act, shall expire and be deemed repealed September 1, 2012.)


Chapter 371

Amends Domestic Relations Law § 236.

Amends Domestic Relations Law § 236 [B][6] to add a subdivision 5-a which revises the process for setting awards of temporary maintenance during the pendency of a matrimonial action, by creating a formula and list of factors that presumptively govern such awards. It amends Domestic Relations Law § 236 [B][1][a] to update the definition of “maintenance” by cross-referencing it to Domestic Relations Law § 236 [B] [6] subdivision 5-a.
It also amends Domestic Relations Law § 236 [B][6] to add 5 new factors for the court to consider in determining the amount and duration of maintenance. Subdivision 3 directs the law revision commission to study the effects of divorce and maintenance.

Effective date August 13, 2010. (Laws of 2010, Ch 371 (8.13.10) (§ 6. This act shall take effect immediately; provided, however, that sections one, two and four of this act shall take effect on the sixtieth day after this act shall have become a law and shall apply to matrimonial actions commenced on or after the effective date of such sections.)


Chapter 384

Amends Domestic Relations Law 170 to add subdivision 7.

Provides that spouses may be granted a judgment of divorce in a timely fashion provided the relationship between husband and wife is irretrievably broken” for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce may be granted unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Effective October 12, 2010. Laws of 2010, Ch 384, (8.13.10) (§ 2. This act shall take effect on the sixtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.)


Chapter 415

Amends Chapter 329 of the Laws of 2010 (which amended DRL 237 and 238) to change its effective date from 120 days after it shall have become a law to 60 days after it shall have become a law. Effective date August 13, 2010. Laws of 2010, Ch 415. (8.13.10)

Chapter 421

Amends Family Court Act 352.3 to add (1-a)

Authorizes family courts to issue orders of protection for the protection of witnesses.
Provides that upon the issuance of an order pursuant to Family Court Act 315.3 or the
entry of an order of disposition pursuant to Family Court Act 352.2, a court may, for good cause shown, enter an order of protection against any respondent requiring that the respondent refrain from engaging in conduct, against any designated witness specifically named by the court in the order, that would constitute intimidation of a witness pursuant to section 215.15, 215.16 or 215.17 of the penal law or an attempt thereof provided that the court makes a finding that the respondent did previously, or is likely to in the future, intimidate or attempt to intimidate such witness in such manner.

Effective November 28, 2010


Chapter 446

Amends Family Court Act 153-b; amends Domestic Relations Law 240 (3-a) in relation to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection in family court.

Clarifies that litigants have the same options of peace and police officer service for orders and temporary orders and legal papers issued in later stages of family offense proceedings including service of extended orders and for petitions
alleging violations of orders of protection as they have for original orders and accompanying pleadings. Makes it clear that such service must be available
without fee to the litigants. The provision prohibiting fees from being charged by police and peace officers for service of all orders of
protection, whether issued upon default, temporary, modified, final, or
extended as well as associated petitions and summonses, emphasizes legislation enacted in 2007. That statute amended section 8011 of the Civil Practice Law and Rules to prohibit sheriffs from charging the statutory $45 fee and any mileage fees for service of orders of protection and related orders or papers when service has been directed by the court. See L. 2007, c. 36. The statute is essential to ensure compliance by New York State with The Federal Violence Against Women Act.
42 U.S.C.A. S3796hh(c)(4).

Effective August 30, 2010.

Important New Court of Appeals and Appellate Decisions

Court of Appeals Holds that the Initial Determination of Whether a Particular Asset Is Marital or Separate Property Is a Question of Law, Subject to Plenary Review on Appeal, and DRL 236 Creates a Presumption That All Property, Unless Clearly Separate, Is Deemed Marital Property' and the Burden Rests with the Titled Spouse to Rebut That Presumption.

In Fields v Fields, __NY3d ___, 6/11/2010 NYLJ 36, (col. 3) the Court of Appeals, in an opinion by Judge Graffeo, observed that, although the manner in which marital property is distributed falls within the discretion of the trial court, 'the initial determination of whether a particular asset is marital or separate property is a question of law, subject to plenary review on appeal' (DeJesus v. DeJesus, 90 NY2d 643, 647 [1997])." Here, the Court concluded that the value of the husband's one-half interest in the parties' residence, a Manhattan townhouse that the husband purchased during the marriage and where the parties had lived for nearly thirty years, was marital property and affirmed the order of the Appellate Division.
At the outset Judge Graffeo set forth the applicable principals of law that applied to this case. She pointed out that Domestic Relations Law §236 defines 'marital property' as 'all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, and the definition of marital property includes a 'wide range' of tangible and intangible interests. She indicated that "it is telling that the Legislature chose to initially categorize all property, of whatever nature, acquired after parties marry as marital property." The Equitable Distribution Law 'recognizes that spouses have an equitable claim to things of value arising out of the marital relationship and classifies them as subject to distribution by focusing on the marital status of the parties at the time of acquisition. This marital property designation is in keeping with the fundamental purpose of the Equitable Distribution Law, the recognition of marriage as an economic partnership, in which 'both parties contribute as spouse, parent, wage earner or homemaker. The Legislature did provide for several exceptions to this general classification. Section 236 specifies that marital property does not include 'separate property' and the statute sets forth four categories of property that constitute separate property: '(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part'. When the Legislature enacted Domestic Relations Law §236, it sought 'to recognize the direct and indirect contributions of each spouse. Hence, the Court has stressed that marital property should be 'construed broadly in order to give effect to the ' economic partnership' concept of the marriage relationship'. By contrast, separate property, denoted as an exception to marital property, should be construed 'narrowly'. The structure of section 236 therefore creates a statutory presumption that 'all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption.
The Husband and the wife, who were 60 and 69 years old, respectively, were married in 1970 and had a son who was born in 1973. In 1978, the parties decided to purchase a home on the Upper West Side of Manhattan, selecting a five-story townhouse with ten apartments and a basement. The Wife agreed to the acquisition of the townhouse only if the husband consented to certain preconditions because she believed that working outside the home and caring for their son, together with maintaining the townhouse, would be too burdensome. Because of the wife's reticence, the husband decided to purchase the townhouse with his mother's assistance. The husband paid $130,000 for the townhouse, making a $30,000 down payment. The down payment came from funds the husband received from his grandparents--half in lieu of a bequest and half on loan, which his mother agreed to repay. The balance of the purchase price was paid through two mortgages held jointly by the husband and his mother. The Husband took title solely in his name but later conveyed a one-half interest in the building to his mother. From 1982 to 2001, the husband and his mother managed the townhouse as a formal partnership. They deposited rent proceeds into a partnership bank account and made mortgage payments from that account. But the partnership bank account was not used exclusively for the building's income and expenses; the husband acknowledged that he commingled marital funds in the account.
In September 1978, husband and the Wife moved into the townhouse, initially residing in apartment 2. In 1979, the couple converted the basement into an apartment where they lived together for five months until the wife became ill and moved into apartment 3. In 1983, after apartment 3 was burglarized, the wife relocated to apartment 2. The husband remained in the basement apartment and the couple shared occasional meals until 1997. The husband paid rent to the partnership for the basement apartment until 2002; he used his income from employment to make rental payments. The Wife also paid rent using her wages while she was living in apartment 3. The husband 's mother and stepfather resided in the building as well and paid rent for three apartments that they combined into a single residence. The remaining apartments were leased to various tenants. and the Wife were continuously employed outside of the home, although they each took periods of parental leave to care for their son. The couple shared child care expenses and responsibilities as parents.
The Husband commenced this divorce action in February 2005 and Supreme Court referred the matter to a Special Referee. After a hearing on issues of equitable distribution, the Referee found that both parties contributed to the long-term marriage, their son's upbringing and the townhouse. Included in his findings, the Special Referee determined that wife decorated the basement apartment, purchasing a carpet, a Formica counter top, couches, a linen closet, bathroom cabinets, a chandelier, curtains, and rugs. She installed a door in the basement apartment, wallpapered the bathroom and paid for flooring and a mirror for the foyer outside the apartment. The Wife also helped with the townhouse's day-to-day maintenance. She cleaned the basement apartment and purchased the vacuum used to clean the lobby. The wife cleaned the mailbox vestibule, swept the interior and exterior steps, periodically cleaned the sidewalk, raked and bagged leaves in the backyard and planted a garden. She also cleaned lobby windows and washed the curtains, polished the lobby mirror and, during times when the husband was away, disposed of the townhouses refuse. The Referee recommended that the husband 's one-half interest in the townhouse be classified as marital property, less the $30,000 down payment, which the Referee deemed as the husband 's separate property because those funds had been received from the husband 's grandparents. He also found that the husband 's one-half interest in the partnership bank account was marital property. The Referee awarded the Wife 35 percent of the value of all marital assets because he concluded that the Wife had made direct and indirect contributions to the townhouse, including services as a spouse and mother. Supreme Court confirmed the Referee's Report and directed entry of a judgment of divorce.
The Appellate Division, with two Justices dissenting, affirmed (65 AD3d 297 [1st Dept 2009]). The court held that the husband 's interest in the townhouse, less the $30,000 down payment, was properly categorized as marital property subject to equitable distribution. The majority emphasized that the husband purchased the townhouse during the parties' marriage, that the couple continuously lived in the townhouse and raised their son in the home, and that the Wife made direct and indirect contributions to the upkeep of the townhouse. Rejecting the husband 's assertion that his interest in the townhouse should be viewed as separate property, the court explained that '[t]he fact that the marital residence can also be used to generate income... does not therefore reclassify marital property into separate property' (id. at 304).
The husband argued in the Court of Appeals that his one-half interest in the townhouse was separate property because he owned and managed the building with his mother and because the Wife did not contribute to its purchase or its appreciation in value. The Court of Appeals disagreed and concluded that the value of the husband 's one-half interest in the townhouse was marital property subject to equitable distribution.
Judge Graffeo wrote that this case involved the application of the well-settled statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is deemed marital property (see DeJesus, 90 NY2d at 652). Here, the husband purchased the townhouse in 1978, approximately eight years into the marriage, and therefore, on the date of acquisition, the presumption of marital property arose. Even where one spouse contributed monies derived from separate property toward the acquisition of the marital residence, this has not precluded its classification as marital property where the other spouse made economic or other contributions to the residence and the marriage; the contributing spouse generally has received a credit for that contribution.
Here, the property was purchased eight years into the parties' marriage with the intent that it would be used as the marital residence where the parties would live and raise their son. In fact, that is precisely what occurred, the parties resided in the home with their son and other family members for nearly 30 years. Thus, the statutory presumption that a residence acquired during the marriage is marital property clearly applied in this case.
Once the statutory presumption was triggered, the burden shifted to the husband to rebut that presumption (DeJesus, 90 NY2d at 652). The Husband relied on the fact that he used monies derived from separate property, the $30,000 down payment, to acquire the townhouse. But the townhouse was not 'acquired in exchange for' the $30,000 down payment (Domestic Relations Law § 236 [B] [1] [d] [3]). Instead, the husband 's $30,000 separate property contribution covered only a fraction of the purchase price. While the down payment facilitated the acquisition, the use of a 'separate property' down payment does not, in and of itself, establish the property's character as separate property.
The remaining $100,000 of the purchase price was paid through two mortgages and, despite the husband 's claim that he made mortgage payments solely from rental proceeds, he failed to substantiate that allegation. The husband testified that he commingled marital assets in the partnership bank account from which mortgage payments were made. Specifically, he acknowledged that he would sometimes deposit his paychecks, which were marital property, into the account. Funds from other sources of marital income were also placed into the account, such as the husband 's earnings from his tax preparation and video businesses and wife's paychecks. The fact that the husband would later transfer funds or give cash to the Wife does not alter the commingled nature of the funds. Finally, both the husband and the Wife paid rent to the partnership using income from their outside endeavors, which was a partial source of the mortgage payments. The Court found that the therefore failed to establish that the mortgages, which were used to pay the majority of the townhouse's purchase price, were paid using monies derived exclusively from separate property, much less that all of the expenses associated with the property were covered by segregated funds.
Judge Graffeo noted that there is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds. In these situations, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset. In distributing any appreciation in value, courts may consider any of the factors listed in Domestic Relations Law §236 (B) (5) (d) or any other relevant considerations, including the respective contributions of each spouse and the effect of market forces.
In this case, the courts below properly considered the spectrum and quantity of contributions made by each spouse to the management and maintenance of the townhouse and the extent to which market factors enhanced the value of the property. Under these circumstances, the Court declined to disturb the determination below that the husband failed to rebut the statutory presumption that his interest in the townhouse is marital property subject to equitable distribution and that the Wife was entitled to 35 percent of the husband 's interest in that asset.
In reaching this conclusion, the Court emphasized that the husband purchased the townhouse eight years into the 35-year marriage and that the family maintained their living arrangement since 1978. It is not for the courts to dictate what type of lifestyle a 'normal' marriage should reflect or how married couples should structure their marital relationships. That the husband and the Wife in this case maintained separate apartments in the building did not change the character of the property from marital to separate, especially since they both made economic and noneconomic contributions to their marriage and the upbringing of their son. Many married couples sleep in different bedrooms for a variety of reasons and such arrangements do not affect the 'marital property' status of their homes if they divorce. The fact that the husband took title to his one-half interest in the townhouse in his name alone is irrelevant under the statute's express language, nor does the fact that the husband acquired title with his mother interfere with the marital character of his interest in the property. That portions of the townhouse were used as an income-generating business does not transform the building into separate property. The Wife's lack of an initial monetary investment and involvement in the management activities pertaining to the townhouse do not preclude a holding that the husband 's interest in the building is marital property. These were factors properly considered by the trial court in determining the extent of wife's distributive award (see Domestic Relations Law §236 [B] [5] [d]).
Judge Graffeo pointed out that the dissent failed to recognize the statutory presumption that property acquired during a marriage is marital property; instead, the dissent begins with the assumption that the building was separate property at the time of its acquisition. The majority did not view the husband 's interest in the townhouse as property 'acquired in exchange for' his separate property contribution toward the down payment. Under the dissent's analysis, any time a married couple purchases a marital residence using 'separate' funds contributed by one spouse towards the down payment, the entirety of the marital home would be classified as separate property. This approach is not consistent with relevant precedent, does not heed Domestic Relations Law's statutory presumption in favor of marital property and is contrary to the very purpose underlying the statute in recognition of an 'economic partnership.'
The husband also claimed that his one-half interest in the partnership bank account was separate property because the account was created solely to manage funds relating to the townhouse. But, he commingled marital assets in the partnership bank account and he could not sufficiently delineate any of the funds in the account as separate property . Thus, the husband's interest in the partnership bank account was marital property that should be allocated between the parties.
The husband also challenged the trial court's distribution of the marital property, arguing that the court abused its discretion by awarding the Wife 35 percent of the value of the marital assets. The Court of Appeals disagreed. In recognizing marriage as an economic partnership, Domestic Relations Law §236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors. (Domestic Relations Law 236 [B] [5] [d]). Absent an abuse of discretion, this Court may not disturb the trial court's distributive award. Here, Supreme Court issued a comprehensive decision addressing all relevant factors, including that the husband and the Wife were married for 35 years; that both maintained employment and made economic and noneconomic contributions to the marriage, their son and the townhouse; that they had equal parenting responsibilities; that the Wife did not invest in the purchase of the townhouse; and that the couple maintained separate units in the building for approximately 28 years. In light of these considerations, particularly the length of the marriage, the age of the parties and wife's contributions to the marriage, the Court could not conclude that Supreme Court abused its discretion in awarding the Wife 35 percent of the value of the husband 's half interest in the townhouse and other marital assets.
Judge Smith dissented in an opinion in which Judge Read concurred.


First Department Holds Prenuptial Agreement May Contain Enforceable Waiver of Interest in Retirement Assets.

In Strong v Dubin,--- N.Y.S.2d ----, 2010 WL 1905004 (N.Y.A.D. 1 Dept.) the First Department found, in an opinion by Justice Andrias, that the parties' prenuptial agreement contained an enforceable waiver of defendant wife's interest in the marital portion of plaintiff husband's retirement assets. In analyzing this issue it revisited its determination in Richards v. Richards (232 AD2d 303, 303 [1996]), where the court had found that under the Employee Retirement Income Security Act 'only a spouse can waive spousal rights to employee plan benefits, that a fiancee is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.' Justice Andrias wrote that insofar as the Court's determination in Richards v. Richards (232 AD2d 303 [1996]) would preclude the waiver of pension rights in the event of divorce in a prenuptial agreement, it should not be followed in that it failed to recognize the distinction between waivers of survivor benefits and other pension benefits. For purposes of equitable distribution, a waiver of any interest in a pension as marital property by an otherwise valid prenuptial agreement is not prohibited by The Employee Retirement Income Security Act of 1974 (ERISA) (29 USC 1001 et seq. ), as amended by the Retirement Equity Act of 1984 (REA) (citing Moor-Jankowski, 222 AD2d at 423; Edmonds v. Edmonds, 184 Misc 2d 928 [Sup Ct, Onondaga County 2000]).


Second Department Disapproves of Requirement of Showing Existence of "Special Circumstances" Warranting Discovery from a Nonparty in Order to Successfully Oppose a Motion to Quash a Subpoena Duces Tecum Served on That Nonparty

In Kooper v Kooper, --- N.Y.S.2d ----, 2010 WL 1912142 (N.Y.A.D. 2 Dept.) the appeal considered the principles governing the discovery of documents from nonparties pursuant to CPLR 3101(a)(4). It provides that the party seeking disclosure must give notice stating "the circumstances or reasons such disclosure is sought or required" from the nonparty. The question before the court was whether a party must establish the existence of "special circumstances" warranting discovery from a nonparty in order to successfully oppose a motion to quash a subpoena duces tecum served on that nonparty? Justice Angiolillo, in the opinion for the court, noted that many of the cases of the Second Department continued to apply that standard after CPLR 3101(a)(4) was amended to remove the requirement that discovery from a nonparty be obtained only "where the court on motion determines that there are adequate special circumstances." and concluded: “We hereby disapprove the further application of the "special circumstances" standard in this context.”
On July 18, 2008, the defendant served subpoenas duces tecum on five nonparty financial institutions, demanding production of documents related to any accounts held by the plaintiff, and on July 21, 2008, the defendant served an amended subpoena on one of the five institutions. The following notice appeared on the face of each subpoena: "The circumstances or reasons said disclosure is sought or required are to identify and value certain marital property, which is material and necessary in the prosecution or defense of this action." Copies of the six subpoenas were served on the plaintiff. After the wife refused to withdraw the six subpoenas duces tecum served on nonparty financial institutions, the husband moved to quash the subpoenas, and the wife filed a cross-motion to compel the husband to comply with discovery demands, for an award of interim counsel fees, and to direct the husband to pay the wife one-half of the proceeds from the rental of the parties' vacation home. The Supreme Court granted the husband's motion to quash on the ground that the defendant had failed to tender a sufficient explanation why the discovery from nonparties was necessary and denied wife's cross-motion in its entirety.
On appeal the Appellate Division noted that subsequent document production by three of the five nonparty financial institutions rendered part of defendant’s appeal academic. It turned to defendant's contention that the Supreme Court improperly granted plaintiff's motion to quash the subpoenas she served on the two remaining nonparty financial institutions, American Express and Principal Trust Company, f/k/a Delaware Charter Guarantee & Trust Company.
The court pointed out that disclosure in New York civil actions is guided by the principle of "full disclosure of all matter material and necessary in the prosecution or defense of an action.” (CPLR 3101). The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" ( citing Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403). The Court of Appeals' interpretation of "material and necessary" in Allen has been understood "to mean nothing more or less than 'relevant'.
To withstand a challenge to a discovery request, therefore, the party seeking discovery must first satisfy the threshold requirement that the disclosure sought is "material and necessary," whether the request is directed to a party or non-party. If a request for discovery from a nonparty is challenged solely on the ground that it exceeds the permissible scope of matters material and necessary in the prosecution or defense of the action, a motion to quash is properly denied if that threshold requirement is satisfied, or properly granted if the discovery sought is not material and necessary.
The Court held that in this action for a divorce and ancillary relief in which the parties seek, inter alia, the equitable distribution of marital assets, "the entire financial history of the marriage is open for examination," and "[broad pretrial disclosure enabling both spouses to obtain necessary information regarding the value and nature of the marital assets is deemed critical if the trial court is to properly distribute the marital assets.” The two subpoenas at issue sought financial records including periodic statements for any accounts in the plaintiff's name for the time period of "January 1, 2002 to the present." The court found that this information was material and necessary as an aid to the parties in determining the value and nature of the marital assets and an aid to the trial court in properly distributing those assets. Since the defendant met the threshold requirement, an order quashing the subpoenas could not be premised on the ground that the requested disclosure was not material or necessary to the prosecution or defense of this action.
Beyond the requirement of materiality and necessity which defines the scope of permissible discovery, a disclosure request directed to a nonparty implicates considerations in addition to those governing discovery from a party. The Court noted that CPLR 3101, entitled "Scope of Disclosure," sets forth general requirements applicable to all discovery. At one time, CPLR 3101 allowed disclosure as against a nonparty only "where the court on motion determines that there are adequate special circumstances. In 1984, the Legislature amended CPLR 3101(a)(4) to eliminate the "on motion" and "special circumstances" language, substituting therefor the requirement that such disclosure be obtained "upon notice stating the circumstances or reasons such disclosure is sought or required.” The 1984 amendment, however, did not change the requirement that a party obtain "[a] court order upon a showing of special circumstances" when further disclosure is sought concerning the expected testimony of an expert witness; this is the sole remaining subsection with the "special circumstances" language. After the 1984 amendment, CPLR 3120, which specifically governs document production, continued to require a court order for discovery from a nonparty. Subdivision (b) of that Rule required the party seeking disclosure to obtain the order upon motion with notice to adverse parties and the nonparty from whom disclosure was sought. In 2002, the Legislature amended CPLR 3120, dispensing with the need to make a motion and requiring CPLR 3120, as amended in 2002, requires only service of a subpoena duces tecum for the production of documents in the custody and control of a nonparty witness. The 2002 amendment brought nonparty document production into line with the procedure for compelling a nonparty witness to produce documents during the nonparty's deposition, which requires service of a subpoena without a motion or court order.
Justice Angiolillo noted that the Second Department has adhered to the view that a subpoena duces tecum served on a nonparty is "facially defective" and unenforceable if it neither contains, nor is accompanied by, a CPLR 3101(a)(4) notice stating the circumstances or reasons such disclosure is sought or required. However, it has indicated, in dicta, that such a facial defect might be remedied and in a case involving facially defective subpoenas that allegedly, dehors the record, were reissued with the required notice, it considered the merits of the showing in opposition to a motion to quash and found it lacking. The Second Department has not had occasion to consider whether a motion to quash for lack of the required notice may be successfully defeated upon an adequate showing of circumstances and reasons for the requested disclosure.
In this case the two subpoenas at issue contained a notice with a statement of circumstances and reasons why the defendant sought the disclosure. The question was whether the “circumstances and reasons” proffered by the defendant were sufficient to withstand the plaintiff's motion to quash.
The Court noted that after the 1984 amendment eliminating the "special circumstances" language, the departments of the Appellate Division differed in their interpretations of the "circumstances and reasons" requirement and the sufficiency of the showing necessary to withstand a challenge to disclosure from a nonparty. In 1988, the Second Department held, in a case involving a nonparty deposition, that the "special circumstances requirement survived the 1984 amendment to CPLR 3101(a)(4)". In light of the elimination from CPLR 3101(a)(4) in 1984 of the “special circumstances” language, the Second Department disapproved of further application of the "special circumstances" standard in its cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses. It held that on a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."
Looking to the reasoning in its cases to find guidance with respect to the circumstances and reasons which it considered relevant to the inquiry with respect to discovery from a nonparty, the court noted that since Dioguardi, the Court has deemed a party's inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty, and properly denied when the party has shown that the evidence cannot be obtained from other sources. The cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining whether discovery from a nonparty is warranted such as a conflict in statements between the plaintiff and nonparty witness; unexplained discontinuance of the action against the witness, formerly a party; and previous inconsistencies in the nonparty's statements. The Court declined to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case. The particular circumstances of each case must always weigh in the trial court's consideration of a discovery request and in our review of the trial court's exercise of its discretion. The Court emphasized that its cases have consistently adhered to the principle that "[more than mere relevance and materiality is necessary to warrant disclosure from a nonparty".
Applying these principles to the case at hand, the Court found that the defendant proffered circumstances and reasons in her notice on the face of each subpoena which amounted to no more than a statement that the information would be relevant and material and necessary to the prosecution or defense of the action. In opposition to the plaintiff's motion to quash, the defendant failed to add to this showing, arguing only generally that neither the plaintiff nor the nonparty financial institutions had affirmatively shown prejudice or inconvenience. This proffer was insufficient in the context of this case. The defendant sought discovery from the nonparties prior to expiration of the plaintiff's time to respond to her discovery demands. The defendant conceded that she has since received the plaintiff's voluminous response to her demands, consisting of approximately 27,000 pages of documents. The defendant should have reviewed the material received from the plaintiff to ascertain whether the information sought from the various nonparties was supplied by the plaintiff in his discovery responses. Had that procedure been followed, it may have obviated the need for, or significantly narrowed and focused, the subpoenas served on the nonparties. Accordingly, as the defendant did not make a sufficient showing of the circumstances and reasons discovery from the nonparties was warranted, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to quash the subpoenas served on American Express and Principal Trust Company, f/k/a Delaware Charter Guarantee & Trust Company. The court also found merit, however, in that branch of the defendant's cross motion which was for an award of an interim counsel fee. It held that given the significant disparity in the parties' financial circumstances, the Supreme Court should have granted the defendant's request for counsel fees and directed the plaintiff to pay the defendant an interim counsel fee in the sum of $100,000.
Court of Appeals Reaffirms Alison D, and Rejects Parenthood by Equitable Estoppel But Recognizes Partner As Parent By Giving Full Faith and Credit to Vermont Civil Union
In Debra H v Janice R, ___NY3d___, 2010 WL 1752168 (N.Y.) the Court of Appeals reaffirmed it holding in Alison D v. Virginia M. (77 N.Y.2d 651 [1991] ), that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. It rejected the argument that Matter of Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D and held that Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups. However, because Debra H. and Janice R. entered into a civil union in Vermont before M.R.'s birth, it reversed the Appellate Division's for reasons of comity, holding that Debra H. was M.R.'s parent under Vermont law and, as a matter of comity she was his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing. The Court limited its ruling, which did not resolve whether New York extends comity to the civil union for other purposes. It decided only that New York will recognize parentage created by a civil union in Vermont.
Respondent Janice R. was the biological mother of M.R., a six-year old boy conceived through artificial insemination and born in December 2003. Janice R. and petitioner Debra H. met in 2002 and entered into a civil union in the State of Vermont in November 2003, the month before M.R.'s birth. Janice R. repeatedly rebuffed Debra H.'s requests to become M.R.'s second parent by means of adoption. After the relationship between Janice R. and Debra H. soured and they separated in the spring of 2006, Janice R. allowed Debra H. to have supervised visits with M.R. each week. After a while Janice R. began scaling back the visits and then cut off all communication between Debra H. and M.R. Debra H. brought a proceeding against Janice R. in Supreme Court for joint legal and physical custody of M.R., restoration of access and decisionmaking authority with respect to his upbringing, and appointment of an attorney for the child. At the hearing Debra H. acknowledged the decision in Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991] ), which held that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent, but contended that Matter of Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D. In support of this interpretation of our precedents, Debra H. emphasized that Shondel J. cited Jean Maby H. v. Joseph H. (246 A.D.2d 282, 676 N.Y.S.2d 677 [2d Dept 1998] ), a divorce proceeding in which the husband successfully invoked equitable estoppel to seek custody and visitation with a child born to the wife prior to the marriage, whom he neither fathered nor adopted. Debra H. also urged Supreme Court to consider the effect of the parties' civil union, and alluded to the Vermont Supreme Court's decision in Miller-Jenkins v. Miller-Jenkins (180 Vt. 441, 912 A.2d 951 [2006], cert denied 550 U.S. 918 [2007] ). Janice R. stressed that she had always spurned Debra H.'s entreaties to permit a second-parent adoption. She argued, among other things, that Alison D., which interpreted Domestic Relations Law 70, was not eroded or overruled by Shondel J
Supreme Court ruled in Debra H.'s favor. The judge reasoned that "it [was] inconsistent to estop a nonbiological father from disclaiming paternity in order to avoid support obligations, but preclude a nonbiological parent from invoking [equitable estoppel] against the biological parent in order to maintain an established relationship with the child" since, in either event, "the court's primary concern should be furthering the best interests of the child". Supreme Court concluded that the facts alleged by Debra H., if true, "establish[ed] a prima facie basis for invoking the doctrine of equitable estoppel." In this regard, the judge considered the parties' civil union to be "a significant, though not necessarily a determinative, factor in [Debra H.'s] estoppel argument" because, under Vermont law, "parties to a civil union are given the same benefits, protections and responsibilities . . . as are granted to those in a marriage," which "includes the assumption that the birth of a child during a couple's legal union is 'extremely persuasive evidence of joint parentage' " ( quoting Miller-Jenkins, 180 Vt. at 466, 912 A.2d at 971). Because of the many contested facts, however, Supreme Court ordered another hearing to resolve whether Debra H. stood in loco parentis to M.R., as she asserted, and therefore possessed standing to seek visitation and custody.
Janice R. appealed, and obtained a stay of the equitable-estoppel hearing ordered by Supreme Court, pending disposition of the appeal. On April 9, 2009, the Appellate Division unanimously reversed on the law, vacated Supreme Court's order, denied the petition, and dismissed the proceeding. The court acknowledged that while the "record indicate[d] that [Debra H.] served as a loving and caring parental figure during the first 2 1/2 years of [M.R.'s] life, she never legally adopted [him]" and, in accordance with Alison D ., "a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law 70" (61 AD3d 460, 461 [1st Dept 2009] ). The Appellate Division commented that, to the extent that denial of any right to equitable estoppel in this case might be considered inconsistent with Shondel J. and Jean Maby H., its own "reading of precedent was such that the doctrine of equitable estoppel may not be invoked where a party lacks standing to assert at least a right to visitation".
The Court of Appeals, in an opinion by Judge Read, reaffirmed its holding in Alison D., but reversed the Appellate Division's order in this case for reasons of comity in light of Debra H.'s status as M.R.'s parent under Vermont law. She pointed out that in Alison D., the court decided that DRL section 70 does not confer standing on a biological stranger to seek visitation with a child in the custody of a fit parent. Domestic Relations Law § 70(a) provides, in part, that "[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order.

The Court rejected Debra H.’s argument that the court should exercise what she characterized as longstanding common law and equitable powers to recognize the parentage of a nonbiological, nonadoptive individual on a theory of equitable estoppel and in the child's best interest. She asked the court to revisit and either distinguish or overrule Alison D., a case that closely resembles this one factually.

Judge Read explained that in that case Alison D., the former romantic partner of Virginia M., petitioned for visitation with Virginia M.'s child under Domestic Relations Law s 70. According to Alison D., she and Virginia M. established a relationship, began living together, and decided to have a child whom Virginia M. would conceive through artificial insemination. They agreed to share all parenting responsibilities, and continued to do so for the first two years of the child's life. When the child was about 2 1/2 years old, however, the parties ended their relationship and Alison D. moved out of the family home. The parties adhered to a visitation schedule for a time, but Virginia M. at first restricted and eventually stopped Alison D.'s contact with the child. In that case the Court rejected Alison D.'s argument that she "acted as a 'de facto' parent or that she should be viewed as a parent 'by estoppel ' " (Alison D., 77 N.Y.2d at 656, 569 N.Y.S.2d 586, 572 N.E.2d 27). The rationale of the Court in Alison D was that "[t]raditionally, in this State it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the nonparent has exercised some control over the child with the parents' consent ... To allow the courts to award visitation--a limited form of custody--to a third person would necessarily impair the parents' right to custody and control" (id. at 656-657, 569 N.Y.S.2d 586, 572 N.E.2d 27). Because Alison D. conceded that [Virginia M. was a fit parent, she had no right to petition the court to displace the choice made by the fit parent in deciding what is in the child's best interests. The Court emphasized that where the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation and it gave the courts the power to determine whether an award of visitation would be in the child's best interests" . Thus, it refused to read the term parent in section 70 to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child. Judge Read noted that the in its decision in Alison D., the Court cited Matter of Bennett v. Jeffreys (40 N.Y.2d 543 [1976] ) and Matter of Ronald FF. v. Cindy GG. (70 N.Y.2d 141 [1987] ), cases which set forth bedrock principles of family law. In Bennett, the Court held that the State "may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances". Where extraordinary circumstances are present, the court determines custody based on the child's best interest. Concomitantly, in Ronald FF., it held that "[v]isitation rights may not be granted on the authority of the ... Bennett ... extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother"; and further noted that the mother possessed a fundamental right "to choose those with whom her child associates," which the State may not "interfere with ... unless it shows some compelling State purpose which furthers the child's best interests".
Judge Read rejected Debra H.’s argument that the Court implicitly departed from Alison D. in Shondel J., where there were affirmed findings of fact that Mark D. had held himself out as the child's biological father, and had treated her as his daughter for the first 4 1/2 years of her life. When Shondel J. sought orders of filiation and support, Mark D. requested DNA testing. The Family Court hearing examiner ordered genetic marker tests, which revealed that Mark D. was not the child's biological father. Shondel J. was an unusual case because "the process was inverted": "The procedure contemplated by sections 418(a) and 532(a) of the Family Court Act is that Family Court should consider paternity by estoppel before it decides whether to test for biological paternity". The Court held in Shondel J. that "a man who has mistakenly represented himself as a child's father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man's representation of paternity, to the child's detriment". The Court premised its decision on "our precedents, the affirmed findings of fact and the legislative recognition of paternity by estoppel". On the latter point, it highlighted that although paternity by estoppel for purposes of child support "originated in case law," it was "now secured by statute in New York"; namely, sections 418(a) and 532(a) of the Family Court Act.
Judge Read pointed out that the Court did not mention Alison D. in Shondel J. Nor did it intend to signal disaffection with Alison D. by citing Jean Maby H., one of a handful of lower court decisions applying equitable estoppel to custody and visitation proceedings despite Alison D., where it considered and explicitly rejected this approach. The holding in Shondel J. was limited to the context in which that case arose--the procedure for determining the paternity of an "alleged father." The Court saw no inconsistency in applying equitable estoppel to determine filiation for purposes of support, but not to create standing when visitation and custody are sought. The Legislature has drawn the distinction in sections 418(a) and 532(a) of the Family Court Act which direct the courts to take equitable estoppel into account before ordering paternity testing, while section 70 of the Domestic Relations Law does not even mention equitable estoppel.
The Court rejected Debra H’s request to replace the bright-line rule in Alison D. with a complicated and non-objective test for determining so-called functional or de facto parentage. The Court stated that the flexible type of rule championed by Debra H. threatens to trap single biological and adoptive parents and their children in a limbo of doubt. These parents could not possibly know for sure when another adult's level of involvement in family life might reach the tipping point and jeopardize their right to bring up their children without the unwanted participation of a third party. It found significant that the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by" the United States Supreme Court (citing Troxel v. Granville, 530 U.S. 57, 65 [2000] ). Courts must be sensible of "the traditional presumption that a fit parent will act in the best interest of his or her child" and protect the parent's "fundamental constitutional right to make decisions concerning the rearing of" that child. In the Courts view, this fundamental right entitled biological and adoptive parents to refuse to allow a second-parent adoption, as Janice R. did, even if they have permitted or encouraged another adult to become a virtual parent of the child, as Debra H. insisted was the case here.
The Court of Appeals agreed with Janice R. that any change in the meaning of "parent" under our law should come by way of legislative enactment rather than judicial revamping of precedent. Whether to expand the standing to seek visitation and/or custody beyond what sections 70, 71 and 72 of the Domestic Relations Law currently encompass remains a subject for the Legislature's consideration.
The Courts reaffirmation of Alison D. did not dispose of this case, because Debra H. and Janice R. entered into a civil union in Vermont before M.R.'s birth. This circumstance presented two issues: (1) whether Debra H. was M.R.'s parent under Vermont law and, (2) in the event that she is, whether as a matter of comity she is his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing.
Judge Read explained that Vermont's civil union statute provides that parties to a civil union shall have "all the same benefits, protections and responsibilities under law ... as are granted to spouses in a marriage" (Vt Stat Ann tit 15, 1204[a] ); and that they shall enjoy the same rights "with respect to a child of whom either becomes the natural parent during the term of the civil union," as "those of a married couple" (Vt Stat Ann tit 15, 1204[f] ). In Miller-Jenkins, the Vermont Supreme Court relied upon these provisions to hold that a child born by artificial insemination to one partner of a civil union should be deemed the other partner's child under Vermont law for purposes of determining custodial rights following the civil union's dissolution (Miller-Jenkins, 180 Vt. at 464-465, 912 A.2d at 969-970). The court concluded that in the context of marriage, a child born by artificial insemination was deemed the child of the husband even absent a biological connection. In light of section 1204 and by parity of reasoning, the court decided that the same result pertained to the partner in the civil union with no biological connection to the child.
Judge Read noted that the potential legal ramifications in New York of entering into a civil union in Vermont were uncertain in 2003, and remain unsettled except to the extent the Court resolves the specific issue--i.e., parentage--presented by this case. Whatever her motivation or expectation, Janice R. chose to travel to Vermont to enter into a civil union with Debra H. In light of the Miller-Jenkins decision, the Court concluded that Debra H. was M.R.'s parent under Vermont law as a result of that choice.
The next question was whether New York courts should accord comity to Vermont and recognize Debra H. as M.R.'s parent under New York law as well. Judge Read explained that the doctrine of comity "does not of its own force compel a particular course of action. Rather, it is an expression of one State's entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case in which the interests of the forum are more critical" (citing Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574, 580 [1980]). New York's "determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict". The court locates the public policy of the state in "the law as expressed in statute and judicial decision" and also considers "the prevailing attitudes of the community". Even in the case of a conflict, however, New York's public policy may yield "in the face of a strong assertion of interest by the other jurisdiction" . The Court noted that New York will accord comity to recognize parentage created by an adoption in a foreign nation (citing see L.M.B. v. E.R.J., 2010 N.Y. Slip Op 01345, *4-5 [2010] [comity may be extended to a Cambodian adoption certificate so that an individual who is a child's father under Cambodian law is also his father under New York law] ). It saw no reason to withhold equivalent recognition where someone is a parent under a sister state's law. Janice R., as was her right as M .R.'s biological parent, did not agree to let Debra H. adopt M.R. But the availability of second-parent adoption to New Yorkers of the same sex negates any suggestion that recognition of parentage based on a Vermont civil union would conflict with our State's public policy. Nor would comity undermine the certainty that Alison D. promises biological and adoptive parents and their children: whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage. The Court commented that the decision does not lead to protracted litigation over standing and is consistent with New York's public policy by affording predictability to parents and children alike. The Court limited its ruling, which did not resolve whether New York extends comity to the civil union for other purposes. It decided only that New York will recognize parentage created by a civil union in Vermont. The determination that Debra H. was M.R.'s parent allowed her to seek visitation and custody at a best-interest hearing. There, she will have to establish facts demonstrating a relationship with M.R. that warrants an award in her favor.

The order of the Appellate Division was reversed, and the case remitted to Supreme Court for a best-interest hearing in accordance with this opinion.
Judge Graffeo concurred with Judge Read's analysis as well as the result she reached in a separate concurring opinon in which Judge Jones concurred. She wrote separately to explain why she believed the decision in Matter of Alison D. v. Virgina M. (77 N.Y.2d 651 [1991] ) must be reaffirmed. Judge Ciparick, concurred in the result in an opinion in which Chief Judge Lippman concurred. She agreed with the majority that principles of comity require the recognition of Debra H.'s parentage of M.R. because of the Vermont civil union between the parties, but wrote separately to set forth her view that Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991] should be overruled as outmoded and unworkable. Judge Smith concurred in the result in an opinion.

Court of Appeals Holds Equitable Estoppel May Be Used by Biological Father to Prevent Child's Mother from Asserting Biological Paternity, When Mother Has Acquiesced in the Development of a Close Relationship Between the Child and Another Father Figure, and it Would Be Detrimental to the Child's Interests to Disrupt That Relationship.

In Matter of Juanita A, v Kenneth Mark N., ___NY3d___, 2010 WL 1752194 (N.Y.) the Court of Appeals, in an opinion by Judge Pigott, held that under the circumstances of this case, where another father-figure is present in the child's life, a biological father may assert an equitable estoppel defense in paternity and child support proceedings. The doctrine of equitable estoppel may be used by a purported biological father to prevent a child's mother from asserting biological paternity, when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child's interests to disrupt that relationship.
On June 25, 1994, the child, A., was born. At the time, mother was unmarried, but living with Raymond S., who was listed as A.'s father on her birth certificate. The Mother and Raymond had a previous child together and, after the birth of A., had another child. When A. was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, the mother called Kenneth at his home in Florida and had him speak with A. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth's attempt to speak with A. a second time was rebuffed by Raymond, who warned Kenneth not to speak to A. again. Kenneth had no further contact with A. In 2006, when A. was approximately twelve years old, the mother filed a petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth was A.'s biological father. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and "generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support" (63 AD3d 1662 [4th Dept 2009] ).
Judge Pigott pointed out that in Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ), the Court set forth the law applicable to equitable estoppel in paternity and child support proceedings. The Court noted there 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. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position." It concluded that the "paramount" concern in such cases "has been and continues to be the best interests of the child".
Judge Pigott stated that equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child's biological father. In such a case, the man has represented himself to be the child's father and the child's best interests are served by a declaration of fatherhood. The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship. Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond was A .'s father. He argued that it was not in A.'s best interest to have her current, child-father relationship with Raymond interrupted.
At the time the petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appeared on her birth certificate and he was the biological father of her older and younger siblings. For most of A.'s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it was in A.'s best interest to have someone besides Raymond declared her father this late in her childhood.
The Court concluded it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.
The Court disagreed with the Law Guardian's position that a person who has already been determined to be a child's biological father cannot raise an equitable estoppel argument. The doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child's interests to disrupt the child's close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child's mother from asserting biological paternity, when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child's interests to disrupt that relationship.
The Court concluded that a hearing was needed to decide the merits of Kenneth's claim. At that hearing, Raymond had to be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of A.'s best interests. It remitted the matter to Family Court for such a hearing and determination.
In a footnote Judge Pigott pointed out that Family Court should have addressed the equitable estoppel issue prior to directing that Kenneth undergo genetic marker tests. The fact that testing was conducted, however, does not bar the court from thereafter deciding the estoppel issue, as Shondel itself held.



Court of Appeals Holds Family Court Has Subject Matter Jurisdiction to Adjudicate Support Petition Brought Pursuant to "UIFSA" by Biological Parent Seeking Child Support from Former Same-sex Partner.


In the Matter of H.M. v. E.T. ___NY3d___, 48 opn 10 (2010) the Court of Appeals, in an opinion by Judge Ciparek, held that the Family Court has subject matter jurisdiction to adjudicate a support petition brought pursuant to the Uniform Interstate Family Support Act ("UIFSA") (Family Ct Act art 5-B) by a biological parent seeking child support from her former same-sex partner. The Court concluded that because H.M. asserted that E.T. was the child's parent, and was chargeable with the child's support, the case was within the Family Court's Article 4 jurisdiction. It did not decide whether it was also, as the Support Magistrate and the Appellate Division dissent concluded, within that Court's Article 5 jurisdiction. Nor did it decide the merits of H.M.'s support claim.

H.M. sought child support from E.T. According to H.M.'s allegations, which the court took as true for present purposes, the parties were involved in a romantic relationship in New York from 1989 through 1995, and cohabited during much, if not all, of that period. During the first year of their relationship, they planned to conceive and raise a child together, discussing available methods of conception, child-rearing practices, and whether the child would be raised as a sibling of E.T.'s children from a prior relationship. In 1993, after many failed attempts, H.M. became pregnant by artificial insemination. E.T. performed the procedure by which H.M. was inseminated.

H.M. gave birth to a son in September 1994. E.T. was present at the delivery and cut the umbilical cord, and the parties shared the expenses associated with the conception and birth of the child. After the child's birth, both parties participated in his care. However, four months after the child was born, E.T. ended the relationship. H.M., a Canadian citizen, moved into her parents' residence in Montreal with the child. An attempted reconciliation in 1997 failed, although E.T. continued to provide H.M. with gifts for the child and monetary contributions for the child's care at unspecified times after the parties' separation.

In 2006, H.M. filed an application in Ontario, Canada, seeking a declaration of parentage and an order of child support establishing monthly payments retroactive to the child's birth. Pursuant to the Uniform Interstate Family Support Act (UIFSA), H.M.'s application was transferred to Family Court, Rockland County.

At an appearance before a Family Court Support Magistrate, E.T. moved to dismiss the petition on jurisdictional grounds. The Support Magistrate dismissed the petition, agreeing with E.T. that no legal basis for jurisdiction existed. H.M. filed written objections to the Support Magistrate's order, and Family Court subsequently reversed the order of dismissal and ordered a hearing to determine whether E.T. should be equitably estopped from denying parentage and support obligations.

E.T. appealed. The Appellate Division, with two Justices dissenting, reversed and reinstated the Support Magistrate's order dismissing the petition for lack of subject matter jurisdiction (see Matter of H.M. v E.T., 65 AD3d 119 [1st Dept 2009]).

H.M. appealed as of right pursuant to CPLR 5601 (a) from the Appellate Division order reinstating the Support Magistrate's order of dismissal, and the Court of Appeals reversed.

In 1996, the United States Congress required each state to enact the Uniform Interstate Family Support Act (UIFSA), to ensure uniformity in interstate actions for the establishment, enforcement, and modification of spousal and child support orders (see 42 USC § 666 [f]; Matter of Spencer v Spencer, 10 NY3d 60, 65 [2008]). New York adopted UIFSA in 1997, designating Family Court as our UIFSA "tribunal" (see Family Ct Act § 580-102 ["The family court is the tribunal of this state."]). With respect to the law to be applied by Family Court, UIFSA states that "Except as otherwise provided by this article, a responding tribunal of this state: (1) shall apply the procedural and substantive law, including the rules on choice of law, generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and (2) shall determine the duty of support and the amount payable in accordance with the law and support guidelines of this state"(Family Court Act § 580-303).

Article VI of the state Constitution establishes "[t]he family court of the state of New York" (NY Const., art VI, § 13 [a]). Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the state Constitution or by statute (see Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008]). Thus, in addition to establishing Family Court, the Constitution enumerates the powers thereof. Among the "classes of actions and proceedings" over which the Constitution grants Family Court jurisdiction are proceedings to determine "the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage" (NY Const., art VI, § 13 [b] [4]).

Article 4 of the Family Court Act more specifically defines Family Court's role with respect to support. Family Court Act § 413 [1] [a] provides, among other things, that "the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may deteermine".
Judge Ciparek held that Family Court indisputably has jurisdiction to determine whether an individual parent, regardless of gender,is responsible for the support of a child (see Family Court Act § 413 [1] [a]). Moreover, statutory jurisdiction, as Family Court has,carries with it such ancillary jurisdiction as is necessary to fulfill the court's core function. Thus, because Family Court unquestionably has the subject matter jurisdiction to ascertain the support obligations of a female parent, Family Court also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child's parent.
Article 4 of the Family Court Act establishes the public policy of the State in favor of obligating individuals, regardless of gender, to provide support for their children.
The dissent argued that such relief can be afforded only in Supreme Court, a court of original trial jurisdiction. However, family Court and Supreme Court have co-extensive authority, concurrent jurisdiction, in relation to child support matters. The Domestic Relations Law and the Family Court Act are identical in the establishment of statewide child support guidelines applicable to all child support proceedings, whether brought initially in Family Court or brought in Supreme Court as ancillary to a matrimonial action or custody proceeding. Moreover, under the guidelines adopted in New York as the Child Support Standards Act (L 1989, ch 567), both parents have an obligation to contribute to the economic well-being of their children. The relevant co-extensive statutes, Family Court Act § 413 and Domestic Relations Law § 240, are capable of being enforced in a fashion that does not disadvantage a litigant in Family Court.
The Court concluded that because H.M. asserted that E.T. was the child's parent, and was chargeable with the child's support, this case was within the Family Court's Article 4 jurisdiction. It did not decide whether it was also, as the Support Magistrate and the Appellate Division dissent concluded, within that Court's Article 5 jurisdiction. Nor did it decide the merits of H.M.'s support claim.
Chief Judge Lippman and Judges Smith and Pigott concured, Judge Smith in a separate concurring opinion. Judge Jones dissented and votes to affirm in an opinion in which Judges Graffeo and Read concurred.


Court of Appeals Holds Egregious Misconduct Must Be an Exceptional Situation, Due to Outrageous or Conscience-shocking Conduct. Absent Those Circumstances, Liberal Discovery on Issues of Marital Fault, Should Not Ordinarily Be Permitted.


In Howard S v Lillian S, ___NY3d ___, No. 71 (2010) the plaintiff husband and defendant wife were married in May 1997. Defendant had one child from a previous relationship, who was later adopted by plaintiff. Three other children were born during the marriage The youngest child, born in 2004, was the product of an extramarital affair between defendant and an unidentified man. Plaintiff, unaware of his wife's infidelity until the child was over three years old, raised that child as his own. Plaintiff alleged that, although defendant knew or should have known that the child was not plaintiff's, she withheld that information from him. In 2007, defendant allegedly commenced another extramarital affair with an individual who was initially named as a co-respondent in this action. Plaintiff confronted defendant with his suspicions of her infidelity, but she denied that she was unfaithful. Defendant maintained that there were no grounds for divorce and the parties entered into the collaborative law process at her suggestion. Several months later, plaintiff obtained the results of a DNA marker test revealing that he was not the biological father of the youngest child. Soon thereafter, plaintiff commenced an action for divorce, based on cruel and inhuman treatment and adultery, and he interposed a cause of action for fraud. The fraud allegations stated that defendant represented that she had been faithful to plaintiff and that he continued to participate in the marriage in reliance upon those representations to his financial detriment. He sought to recover damages under the fraud claim based upon costs he incurred due to defendant's failure to disclose her adultery. Plaintiff sought equitable distribution of the marital property, alleging that the bulk of the property should be awarded to him due to defendant's egregious fault. Defendant moved to dismiss or sever the fraud cause of action and plaintiff cross-moved for liberal discovery relating to his fraud claim and to the issue of defendant's egregious fault for purposes of equitable distribution. Supreme Court denied defendant's motion to dismiss and found that the complaint stated a cause of action for fraud, but limited plaintiff's available damages to his pecuniary loss in the form of collaborative law process fees. The court also denied plaintiff's cross motion for liberal discovery, finding that defendant's actions did not rise to the level of egregious fault. A majority of the Appellate Division affirmed, agreeing that defendant's behavior did not constitute egregious fault such that it could be considered for purposes of equitable distribution (62 AD3d 187 [1st Dept 2009]). The Court further found that plaintiff could only pursue his claims of actual pecuniary loss under the fraud cause of action and rejected the claims for lost profits, child support and punitive damages.
The Court of Appeals, in an opinion by Judge Lippman, affirmed noting that Domestic Relations Law § 236 (B) (5) (d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for consideration of marital fault, but does contain a catch-all provision that allows a court to consider "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law § 236 [B][5][d][14]). He explained that in O'Brien v O'Brien, 66 NY2d 576, 589-590 [1985] the Court had previously rejected the notion that marital fault is a "just and proper" factor for consideration, except in egregious cases which shock the conscience of the court, This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. In O’Brien the Court also observed that "fault will usually be difficult to assign and that introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues. Judge Lippman observed that although the Court of Appeals had not had occasion to further define egregious conduct, courts have agreed that adultery, on its own, does not ordinarily suffice. This makes sense because adultery is a ground for divorce, a basis for ending the marital relationship, not for altering the nature of the economic partnership.
The Court of Appeals held that, at a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets. The Court cited, as examples, a case involving the attempted bribery of the trial judge and a case involving a vicious assault of spouse in presence of the children. Absent these types of extreme circumstances, courts are not in the business of regulating how spouses treat one another. In a footnote the Court pointed out that to the extent that the Appellate Division opinion can be read to limit egregious conduct to behavior involving extreme violence, the definition should not be so restrictive.
The majority opinion appears to have adopted the rule of the First and Second Departments that a party is not entitled to discovery on the issue of fault. Judge Lippman pointed out that although CPLR 3101 provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action," Domestic Relations Law § 236 (B)(5)(d) is the specific statutory provision that governs equitable distribution in marital actions. He explained despite the general policy in favor of liberal discovery, the Court has interpreted the more specific section of the Domestic Relations Law to allow for consideration of marital fault in only a limited set of circumstances involving egregious conduct. In the absence of those circumstances, liberal discovery on issues of marital fault, at variance with O'Brien, should not ordinarily be permitted, though there may be exceptions in rare circumstances. The rationale behind this conclusion was that despite the availability of protective orders, if courts were to consider these matters on a case by case basis, there remains significant potential for abuse and harassment as a result of such discovery, as well as the possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues.
Judge Pigott dissented in an opinion. In his view it was premature to rule that wife's behavior did not, as a matter of law, constitute egregious misconduct for purpose of equitable distribution under the Domestic Relations Law. Therefore, the husband was entitled to discovery on his claim.

CSSA Mandatory Award of Health Care Provisions Amended

Laws of 2009, Ch 215, effective October 9, 2009, amended the Mandatory Award of Health Care Expenses Provision of the Basic Child Support Obligation, contained in Domestic Relations Law § 240 (1-b) (c) (5), the Child Support Standards Act.

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Former Domestic Relations Law § 240 (1-b) (c) (5), and Family Court Act § 413, subdivision 1 (c) (5), which were amended in 2009, required the court to prorate each parent's share of the reasonable health care expenses of the child, where such expenses are not covered by insurance, in the same proportion as each parent's income is to the combined parental income. They provided that the noncustodial parent's pro rata share of such health care expenses was to be paid in a manner determined by the court, including direct payment to the health care provider. Laws of 2009, Ch 215 § 2. (See also Family Court Act 413, subdivision 1 (c) (5), Laws of 2009, Ch 215 § 1). Former Domestic Relations Law § 240 (1-b), subdivision (c) (5) was repealed and a new Domestic Relations Law §240 (1-b) (c) (5) was added. It provides, in part, that:

” The court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph.”
"Cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance.

It also provides, in part:

(v) In addition to the amounts ordered under clause (ii), (iii), or (iv), the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance, the medical assistance program established pursuant to title eleven of article five of the social services law, or the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law, in the same proportion as each parent's income is to the combined parental income, and state the non-custodial parent's share as a percentage in the order. The non-custodial parent's pro rata share of such health care expenses determined by the court to be due and owing shall be support arrears/past due support and shall be subject to any remedies provided by law for the enforcement of support arrears/past due support. In addition, the court may direct that the non-custodial parent's pro rata share of such health care expenses be paid in one sum or in periodic sums, including direct payment to the health care provider.
(vi) Upon proof by either party that cash medical support pursuant to clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or inappropriate pursuant to paragraph (f) of this subdivision, the court shall:
(A) order the parties to pay cash medical support as the court finds just and appropriate, considering the best interests of the child; and
(B) set forth in the order the factors it considered, the amount calculated under this subparagraph, the reason or reasons the court did not order such amount, and the basis for the amount awarded.

Former Domestic Relations Law § 240(1)(d) and Family Court Act § 416(f), which provided for the proration of costs between the parties where private health insurance is ordered, were amended at the same time to provide that the cost of private health insurance, or the cost of any premium, family contribution, or health expense incurred as a result of enrollment in the State Child Health Insurance Program or Medical Assistance program shall be deemed “cash medical support.” Each parent's contribution to the cost of such coverage is to be determined under the amended provisions of and Domestic Relations Law § 240 (1-b) (c) (5) and Family Court Act § 413, subdivision 1 (c) (5). Laws of 2009, Ch 215 § 7 & 8.

Family Court Act §§ 514 and 545, respectively, were amended to provide that the necessary expenses incurred by or for the mother in connection with her pregnancy, confinement and recovery shall be deemed a cash medical support obligation and the court must determine the obligation of either or both parties to contribute to the cost pursuant to Family Court Act § 413. Laws of 2009, Ch 215, §§ 7 & 8.

CPLR 5241 was amended to provide that a Deductions to satisfy current support obligations shall have priority over deductions for the debtor's share of health insurance premiums which shall have priority over any additional deduction authorized by CPLR 5241 (g). Civil Practice Law and Rules 5241 (h) as amended by Laws of 2009, Ch 215,§ 12, effective Oct. 9, 2009.

New York Child Support Calculator Now Available

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Retiurn of Parent from Military Authorizes Reconsideration of Custody Orders

Return of Parent from Military Automatically Considered 'Substantial Change in Circumstance For Seeking Reconsideration of Custody or Visitation Order.


Laws of 2009, Ch 473, effective November 15, 2009, amended the Domestic Relations Law, the Family Court Act and the Military Law to provide that the return of a parent from activation or deployment by the military will automatically be considered a 'substantial change in circumstance' for seeking reconsideration of a custody or visitation order. The amendment changes the law enacted last year which requires that all child custody orders issued when a parent is on active military duty be deemed temporary and subject to revision when the parent returns to civilian life.
Laws of 2009, Ch 473, § 1 amended Domestic Relations Law § 75-l ( entitled Military service by parent; effect on child custody
orders) to provide unless the parties have otherwise stipulated or agreed, if an order was issued under Domestic Relations Law § 75-l, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial
change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child's best interests whether the custody judgment or order previously in effect should be modified.
Laws of 2009, Ch 473, § 2 amended Domestic Relations Law 240, subdivision 1 to add a new paragraph (a-2) to read as follows:
(a-2) Military service by parent; effect on child custody orders.
(1) During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent's ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this section, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent's child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service, shall be subject to review pursuant to subparagraph three of this paragraph. Any relevant provisions of the Service Member's Civil Relief Act shall apply to all proceedings governed by this section.
(2) During such period, the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subparagraph three of this paragraph. When entering an order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent's leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a "leave from military service" shall be a period of not more than three months.
(3) Unless the parties have otherwise stipulated or agreed, if an order is issued pursuant to this paragraph, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child's best interests whether the custody judgment or order previously in effect should be modified.
(4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station.
Laws of 2009, Ch 473, § 3 amended Family Court Act § 651 to add a new subdivision (f) which reads exactly the same as Domestic Relations Law 240, subdivision 1 (a-2).