Preliminary Conference Stipulation/Order Form Revised Effective August 1, 2016

The Preliminary Conference Stipulation/Order  form required to be served pursuant to 22 NYCRR §202.16(f) was revised effective August 1, 2016. It was re-formatted and contains new provisions related to the post-divorce maintenance guidelines and notice of the automatic orders. 

         DRL §236 [B] [6] [g], which is applicable in actions commenced on or after January 25, 2016 (Laws of 2015, Ch 269)  provides that where either or both parties are unrepresented, the court shall not enter a maintenance order or judgment unless the court informs the unrepresented party or parties of the post-divorce maintenance guideline obligation. Subdivision M. titled “NOTICE OF GUIDELINE MAINTENANCE” contains a notice intended to comply with DRL §236 [B] [6] [g],  in cases where there is an unrepresented party.   The Notice advises the parties that under the Maintenance Guidelines Law there is an obligation to award the guideline amount of maintenance on income up to $178,000 to be paid by the party with the higher income (the maintenance payor) to the party with the lower income (the maintenance payee) according to a formula, unless the parties agree otherwise or waive this right. 

          The new form contains a new Subdivision J titled AUTOMATIC STATUTORY RESTRAINTS ( DRL §236[B][2]), in which each party acknowledges that he or she has received a copy of the Automatic Statutory Restraints/Automatic Orders required by DRL §236[B][2], and that he or she understands that he or she is bound by those Restraints/Orders during the pendency of this action, unless terminated, modified, or amended by order of the Court upon motion of either party or upon written agreement between the parties duly executed and acknowledged.


          The other significant changes in the form are as follows:

         BACKGROUND INFORMATION, was moved to Item A, at the beginning of the form and the information formerly at the beginning of the  form was moved into item A.5.  That part of Item A  which requires the parties to identify and state the nature of any premarital, marital, separation and other agreements was modified to add “and/or Orders which affect the rights of either of the parties in this action.”  Like the former preliminary conference statement  it also contains a space to include  a date for either party to “challenge the agreement”. However, unlike the former form, the new form contains a  a waiver provision which specifies that if “No challenge is asserted by that date, it is waived unless good cause is shown.”  

        Subdivision B GROUNDS FOR DIVORCE (1-3) contains spaces for the parties to insert the dates the pleadings were served or will be served. Subdivision B (4) which is where the parties  indicate that the issue of grounds “is unresolved” was modified to remove “a jury is or is not required”.  In the new form Subdivision B (4) specifies that if “the issue of grounds is resolved, the parties agree that Plaintiff/Defendant will proceed on an uncontested basis to obtain a divorce on the grounds of DRL § 170(7) and the parties waive the right to serve a Notice to Discontinue pursuant to CPLR 3217(a) unless on consent of the parties.”

      That part of former Subdivision C, which stated that  “The issue of custody is resolved __ unresolved__”  was removed from the form, and the references to a “parenting plan” in  the event custody issues are resolved or unresolved were removed.

      The following was added to Subdivision C CUSTODY, as (3):

  ATTORNEY FOR CHILD(REN) or GUARDIAN AD LITEM:  Subject to judicial approval, the parties request that the Court appoint an Attorney for the parties’ minor child(ren) (“AFC”). The cost of the AFC’s services shall be paid as follows: _________________________________________________________ .

 FORENSIC:  Subject to judicial approval, the parties request that the Court appoint a neutral forensic expert to conduct a custody/parental access evaluation of the parties and their child(ren).  Subject to Judicial approval, the cost of the forensic evaluation shall be paid as follows:______________________________.

The following was added to Subdivision D FINANCIAL: “(4) Counsel Fees are  resolved  unresolved.” 
Subdivision G. (1) titled Preservation of Evidence  was modified to add the requirement that a party shall maintain not only all financial records in his or her possession but all financial records “under his or her control” through the date of the entry of a judgment of divorce.
Subdivision G (2) titled Document Production was also modified to remove the 45 day period to exchange records and require the exchange of checking account, brokerage account and savings account records for both “joint and individual accounts.”

          The following language was removed from Subdivision G:  “Any costs associated with the use of the authorization shall be paid by _____OR reserved for the Court once the amount is determined.
            No later than ________, the parties shall notify the Court of all items to be provided above that have not been provided.

        Spaces were added to Subdivision G (2) for the parties to list the dates for both parties to respond to notices of discovery and inspection, and interrogatories.

        Spaces that were in the former preliminary conference order for the parties to list the dates that party depositions and third party depositions were to be completed have been removed. 

        “Compliance with discovery demands shall be on a timely basis pursuant to the CPLR “ was removed from Subdivision G.

        Subdivision H, VALUATION/FINANCIAL was re-written but is substantially the same as in the former form.

        The checklist for assets requiring valuation  in former Item 1 was removed  as well as the sentence :” The date of valuation be ___________for items___________and shall be the date of commencement of this action for items_________________ .”

        The words “no later than_____” were removed from the following sentence in Item 1: ‘If a party requires fees to retain an expert and the parties cannot agree upon the source of the funds, an application for fees shall be made.”  

        The time limitations for the exchange of expert reports in Item 2, Experts to be Retained by a Party, where there is no date specified,  was modified to extend the time to exchange expert reports: “Absent any date specified, they are to be exchanged 60 days prior to trial or” 30 days after receipt of the report of the neutral expert, whichever is later.”

  Subdivision I, ” Confidentiality/Non-Disclosure Agreement “ which appeared in the former form, was removed.

          Finally, the following was added to subdivision N: “All discovery as set forth herein above is expected to be  completed prior to the compliance conference.”  

           The Preliminary Conference form can be downloaded in pdf, word and fillable format from http://www.nycourts.gov/divorce/forms.shtml

Court of Appeals Holds Where Party Represented by Counsel Family Court Objections Must Be Served Upon Him.

    In Matter of Odunbaku v Odunbaku, 2016 NY Slip Op 07705 (2016) the Court of Appeals held that if a party is represented by counsel, the time requirements set out in Family Court Act § 439 (e) for objections to a support magistrate's final order, when the order is served by mail, do not begin to run until the order is mailed to counsel.

    The mother retained Staten Island Legal Services to represent her in her efforts to obtain child support from respondent father, with whom she had a son. Through counsel, who represented her throughout the proceedings she obtained a support order. Subsequently a different support magistrate granted the father's petition for downward modification and reduced the father's child support obligation. The order and findings, dated July 24, 2013, was mailed by the Clerk of Family Court directly to the father and to the mother, but not to the father's lawyer or the mother's lawyer. On September 3, 2013, 41 days after the orders were mailed, the mother, through counsel, filed objections. Family Court denied the bjections as untimely, relying on Family Court Act § 439 (e), which provides that "[s]pecific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties" (emphasis added). The Court ruled that "the mailing of a copy of the order and findings of fact to a party of the proceedings satisfied the requirements of § 439 (e) and [22 NYCRR] 205.36 (b)" and that "neither the Family Court Act nor [22 NYCRR 205.36 (b)] specifically requires that the Clerk of Court shall mail a copy of the Support Magistrate's order and decision to a party's attorney."

    The mother appealed relying on Matter of Bianca v Frank (43 NY2d 168 [1977]). The Appellate Division affirmed relying on 22 NYCRR 205.36  (b) which  provides that "[a]t the time of the entry of the order of support, the clerk of [Family Court] shall cause a copy of the findings of fact and order of support to be served either in person or by mail upon the parties to the proceeding or their attorneys."

     The Court of Appeals reversed holding that Matter of Bianca v Frank was dispositive. There, it held that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed". The Bianca Court recognized that this principle would not apply if a legislative enactment specifically excluded the necessity of serving counsel by stating the legislative "intention to depart from the standard practice . . . in unmistakable terms" . The Court noted that the  rationale of Bianca is straightforward. "[O]nce a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf”

    The Court held that Bianca governed and the reference to the mailing of the order to a "party or parties" in Family Court Act § 439 (e) must be read to require that the order be mailed to the party's counsel, in order for the statutory time requirement to commence. While section 439 (e) uses the term "party," the statute does not convey in language that could not be mistaken that mailing to a represented party is dispositive for time requirement purposes and mailing to counsel is unnecessary, notwithstanding Bianca.

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

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

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

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

The Court of Appeals has amended its Rules of Practice, effective June 22, 2016.

Principal briefs filed on normal course appeals, certified questions and review of the determinations of the State Commission on Judicial Conduct are subject to a 14,000 word limit. Requests to exceed the limit may be made by letter. Rule 500.1 1 submissions (the Alternative Procedure for Selected Appeals), reply briefs, amicus curiae briefs and briefs in response to amicus curiae briefs are subject to a 7,000 word limit. The amended Rules provide corresponding page limits for briefs that are handwritten or prepared on a typewriter. The new word and page limits apply to all appeals for which the preliminary appeal statement is filed on or after the June 22 effective date.

Court of Appeals Holds Consecutive Commitments are Authorized by Family Court Act § 454(3)

In Matter of Columbia County Support Collection Unit, v. Risley, 2016 WL 3147588 (2016) the Court of Appeals held that Family Court, in revoking two prior suspended orders of commitment, was authorized to order consecutive six-month sentences for each to run consecutively with a third six-month sentence imposed for a current violation. The Court, in an opinion by Judge Garcia, observed that Family Court is empowered “to use any or all enforcement powers in every proceeding brought for violation of a court order” of support (Family Ct Act § 454[1] ). Such powers include the authority to sentence willfully non-compliant parents to jail “for a term not to exceed six months [,]” but also to suspend such orders of commitment when appropriate (see Family Ct Act §§ 454[3][a], 455[1] ). The Appellate Division rejected the contention that consecutive commitments were not authorized by Family Court Act § 454(3) and concluded that “[g]iven the father’s failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively” (122 AD3d 1097, 1098 [3d Dept 2014] ). The Court of Appeals agreed with the Appellate Division and affirmed its order.