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Historically legal marriage was defined as “a contract between man and woman who consent to marriage”. Even though that is how marriage has been defined, limitations of marriage were placed on residents by individual states. For instance, many states made interracial marriage illegal until the U.S. Supreme Court found that it was unconstitutional in Loving v. Virginia in 1967. And although the states have the authority to determine its own marriage requirements, there are times when Congress has enacted laws that addressed marriage. In 1996, Congress passed the Defense of Marriage Act (“DOMA”), which states that marriage is defined as “a legal union between one man and one woman”. This legislation gives states the authority not to recognize same sex relationships that would be recognized as marriage in another state. (40 states have adopted their own version of DOMA, New York has not.) There are other instances where either Congress or the U.S. Supreme Court has forbidden certain types of marriage. Polygamous and close relative marriages, for example, are not permitted in any state. States, consequently, do have some basic requirements that are common amongst each of them. These basic requirements include the capacity to marry, consent to marry and age to marry. Where states differ are on the procedural requirements, the types of marriage and more recently, whether same sex can legally marry. New York law on marriage is governed by the Domestic Relations Law (“DRL”). Under New York’s DRL, marriage is legal when: -The parties are 18 years old or 16 years old but with judicial or parental consent; If these requirements are not met then the marriage is considered “void” in New York, or not legal. On the other hand, there are instances when marriages are “voidable”, where a court must “declare” the marriage void. Voidable marriages in New York, are marriages that occur when either party is under 18 years old; is incapable of consent or lacks understanding; is incapable of being married because of physical limitations; or acquired consent by fraud, duress or force or has an incurable mental illness for a period of five years or more. Although not explicit in the statute, New York forbids common law marriages, same sex marriages and proxy marriages. The statute, however, implicitly permits first cousin marriages, religious marriages and marriages performed outside of the U.S. (as long as the legal marriage requirements of that country are met). Further, New York criminalizes bigamous or polygamous marriages, Penal Law § 255.15 states: A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse. Bigamy is a class E felony. Even where New York does not permit specific types of marriages (common law, same sex and proxy marriages), marriages legally established in other states pursuant to those states’ laws will more than likely, be recognized in New York. (Although this is still a debatable issue regarding same sex marriages, see my blog entry “Will New York Recognize Same-Sex Foreign Marriage and/or Divorce”). Common law marriages, particularly, are the most common “untraditional” type of marriage (at least 15 states permit them). These marriages are marriages that were not solemnized by clergy or judge and the parties did not have a marriage certificate. Proxy marriages, on the other hand, are not automatically recognized. These marriages occur when either party is not present during the actual ceremony, but appear by a power of attorney, proxy or other legal stand in (these are only permitted in four states). Feel free to contact my office to discuss your legal rights under your “nontraditional marriage”. In some situations, it may be appropriate to file for guardianship of a minor as opposed to filing for child custody. Guardianship cases are typically filed when a child’s parent has died, is incarcerated, has been deported or is physically or mentally disabled and unable to care for the child. However, these instances do not preclude the filing of a child custody petition. Guardianship grants one the legal authority to take care of a child; the guardian has the same power of a parent (and to some extent more than a parent). Child custody, on the other hand, grants one the authority to make all major decisions for the child, including medical, education, as well as the day to day decisions that need to be made. Both require the courts use the “best interest of the child standard” even though the requirements for either may seem stringent. However, there are some legal and practical differences between the two, here is a list of them: 1. Who May File: Guardianship- A non-parent, non-relative may file 2. Residency Requirements: Guardianship- No minimum 3. Legal Status Requirements: Guardianship- Petitioner must be legal resident or citizen of the U.S. 4. Appointment: Guardianship- May be designated by deed of guardianship, will or 5. Courts: Guardianship- Can be brought in Surrogates Court or Family Court 6. Qualifications of Person Filing: Guardianship- Requires criminal background check, fingerprints, State Custody- Requires investigation by ACS or Probation Department 7. Child’s Desires: Guardianship- a child 14 years or older must give written permission Guardianship- may be revoked by release of parent, return of parent or 9. Preference: Guardianship- there is no preference where parent is unable to care for child Custody- either biological parent is preferred over a non-parent/relative 10. Necessary Parties: Guardianship- the mother must be put on notice of the action if she is alive; Guardianship- may seek support from either parent legally, but may only 12. Child Visitation: Guardianship- no court order necessary 13. Duration: Guardianship- may take up to a couple of months, trials are rare 14. Costs & Fees: Guardianship- minimal if any costs Although it may be much more practical and efficient to proceed with guardianship, there are particular cases where this may not be an option. Conversely, although it may be preferable to have stability by seeking child custody, there are instances where this is not an option. If you are not sure of which petition to file, it is always advisable to speak to a experienced family law attorney. There is nothing more fundamental that being able to raise your child as you see fit. One should conceivably be able to raise their child according to his or her own values, beliefs and ideals, without the overreaching and intrusive interference of the state. However, if states were to leave this role up to the parents or legal guardians entirely, there would be no voice to protect the rights of the children, putting their physical and emotional well-being in jeopardy. Each state has taken on the role of safe keeper of children, once the number of parents abusing their right to parent has skyrocketed, which ultimately resulted in an immeasurable number of fatalities. In New York, Article Ten of the Family Court Act was enacted in 1969, as a result of the public outcry over the death of a young girl. And although this statute was promulgated to protect children from abuse and neglect, it was the passing of the Child Protective Services Act of 1973 that directly addressed the reporting and investigating of child abuse and neglect cases in New York. Under the Act, a Child Protective Service (“CPS”) office was established in each county, to encourage more complete reporting of child abuse cases, to investigate and prevent abuse and to provide rehabilitative services to parents, caregivers and children that were involved in such cases. Allegations of child abuse and neglect cases provided to the State Central Registry by “mandated reporters”, which include medical providers, mental health professionals, law enforcement, daycare providers/workers, teachers and district attorneys, are investigated by the agency as they are reported. Although examples of child abuse are pretty obvious , i.e. sexually abusing, physically abusing, or allowing another to abuse the child in this way, child neglect cases can be a lot less identifiable. For this reason, child neglect cases are more frequently investigated by CPS and brought before the court than child abuse cases, even though both may result in misdemeanor, felony and/or domestic violence criminal cases being brought in addition to the Family Court case. Child neglect is when a parent or person legally responsible for the child, fails to care for the child and causes physically, mentally or emotionally to the child as a result or when the child is in danger of such harm because of the parent’s failure to care for him/her. A parent, or person legally responsible, may be charged with neglect for failure to feed a child properly, failure to enroll or send a child to school, failure to seek medical treatment for a child, leaving a child home alone or with another child not old enough to watch the child, amongst many other. There are many times when a parent, who happens to be faced with other life challenges, may unintentionally fail to act or to do something that is necessary to the child’s well-being. Many of these situations should not necessarily rise to the level of an child neglect case but they do. For instance, one of the most litigated child neglect case is when a parent uses corporal punishment to punish the child. The laws in New York do not prohibit the use of corporal punishment; it prohibits the use of “excessive” corporal punishment or “unreasonable” physical force. The New York Family Court Act and the Penal Law both address the extent to which parents’ may inflict physical harm on children. The applicable provisions read as follows: Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof, including excessive corporal punishment. (Fam. Ct. Act Sec. 1012).
Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. (Penal Law Sec. 35:10). The difficulty for most parents comes into play when trying to discern what is “excessive” and/or what is “unreasonable” according to the law. For example, in some instances the use of a belt to discipline a child is considered excessive and/or unreasonable, while in others the courts will dismiss a child neglect charge under such circumstances. There is little uniformity in the definition of “excessive corporal punishment” or “unreasonable physical force” when it comes to the courts. This is mainly attributed to the fact that bureaucratic and judicial decision-making are largely subjective in Family Court, leaving the consistency and fairness of the implementation of the child abuse and neglect laws up to the agencies. Nonetheless, the key to determining if the line has been crossed, is first limiting the use of or refraining from the use of physical or corporal punishment altogether. However, in instances where it is necessary to “maintain discipline or promote the child’s welfare”, some physical discipline may be justified from all perspectives. In other circumstances, however, where the child neglect case arose out of a parent’s failure to act, avoiding CPS’ involvement may be impossible. Even when harm to the child was unforeseeable, not knowing that one should have done something may lend itself to agency involvement. In a medical neglect case, for instance, where a parent fails to take a child to the doctor to be treated for an ear infection, his or her legitimate belief that an ear infection may eventually heal itself does not prevent CPS from opening an investigation against that parent. This may not be fair considering the fact that some parents are much more experienced and savvy when dealing with less serious ailments, than the new parent, for instance. Furthermore, in this day and age where many households are single parent, one wage-earner units, the practicality of acting in every instance is almost non-existent. Unfortunately, there is no surefire way to avoid CPS’ involvement in any scenario. It’s almost as if choosing to become a parent automatically opens one up to the susceptibility of state intrusion to some degree. A parent’s best bet is to know what not to do, than what not knowing what to do! Communicating openly with physicians, school administrators, social service workers, etc. may not necessarily avoid agency intervention, but doing so may better prepare one to explain or defend his or her actions if questioned by the players involved.
If you need to discuss your child abuse or neglect case, please contact my office for a consultation. Do It Yourself kits have become widespread since the ‘90s. With advancements in technology, access to legal forms and Do It Yourself kits have become surged. Although each state has its own set of particularized forms, just about each state has permitted the use of some of the more common forms. Preparing legal forms oneself, saves time, money and in many cases, heartache. Not only is it convenient to be able to prepare forms on your own computer, but often times it keeps the peace by avoiding the contentiousness that arises when a lawyer gets involved. Here I will discuss some of the most common Do It Yourself kits and when it is appropriate to use them. Every situation or circumstance is different, so there is rarely a one size fits all form that should be used in each case. The most common Do It Yourself kits and legal forms are:
Divorce Kits: Divorces are usually very complex cases, particularly contested divorces. When parties decide to divorce they typically have to split up property, settle debts, determine child custody and calculate child support, amongst other things. Although it may appear simple when faced with the decision of who takes the television sets, for instance, but trying to discern if one should get a portion of the other party’s retirement is not always even a ‘thought’. There are instances when a Do It Yourself divorce is economically feasible and extremely convenient. In assessing your situation you should consider: if there is real or personal property of the marriage, if there are children and child custody or child support need to be determined, if there is a history of domestic violence, if one party needs financial assistance from the other to “get back on his or her feet”, if the location of your spouse can not be ascertained or if the other party is represented by an attorney. If any one of these factors exists, at least consulting with an experienced family law attorney is highly recommended beforehand. Divorce kits are ideally for parties with no property, no debts, no children, or for those who agree on all terms of the divorce. If you insist on doing the divorce yourself and fail to address any one of these issues at the time, it may wind up costing more in the long run when attempting to rectify them.
Wills or Living Trusts Kits: Preparing for your future is no longer an option. Having a will and/or living trust prepared minimize disputes over property, avoids lengthy and costly litigation that only prolongs distribution of the estate and prevents hefty tax burdens imposed on the estate. You have much more control over what happens to your most ‘prized possessions’ when you take the initiative to have a will and living trust prepared before you pass on and can usually avoid probate if it is done correctly. However, even the most “simple” or the smallest estates has its own set of factors specific to it, requiring the expertise of an experienced elder law attorney. Tax consequences, legal ownership of property, rights of heirs and financial implications all require the legal advice of an attorney. Preparing a will or living trust without having an attorney present only compounds the very issue one is usually trying to avoid in the first place. Probating an estate can be very expensive, very time consuming and can wind up having assets dispersed in a manner not intended by the deceased.
Premarital Agreements or Separation Agreements Forms: Getting married is one of the most life altering decisions one can make. It alters one’s life economically, emotionally/psychologically and physically, at the very least. Combining assets, adjusting lifestyles, adapting to habits and compromising on ideals or beliefs are typical elements that comprise a marriage. Given all of these considerations, not only is it wise to try to resolve these issues before the bond is created, but it is quite practical. Premarital agreements (“prenuptial agreements”) are generally used when the parties have separate property that they want to keep separate, one party has more assets than the other, there are children from a previous marriage or relationship, there is extended family members that need to be taken care of or if one party will be putting the other through college or further education during the marriage. Although most terms of the marriage may be addressed in the premarital agreement, not limited to money issues, they should not attempt to replace other important legal documents, i.e. wills. Having the premarital agreement prepared by an experienced matrimonial attorney may avoid having the agreement being voided by the court if it is challenged by the other party for “unfairness”. Separation agreements, generally addresses all of the same issues addressed in premarital agreements, except that it is done after the parties are married but before they divorce. Although separation agreements are not usually challenged on the same grounds premarital agreements are challenged, they are at times questioned on other bases. Separation agreements must address all of the issues, property, child custody, child support, debts, etc. at the time it is signed (and acknowledged) or it may be “vacated” or “set aside” for its failure to do so. Not only does having an experienced matrimonial attorney prepare the separation agreement avoid this, it will obviate the need to start the entire process all over again. In today’s climate, where time is a commodity and finances are limited, avoiding the costly and lengthy legal process is usually very appealing. Even after doing some extensive research, getting insight from others that have endured the process, familiarizing oneself with the “lingo”, having legal documents prepared with the assistance of an experienced attorney is priceless. Albeit, there are many instances where the procedural rules for drafting, filing or finalizing legal documents are esoteric and only understood by a licensed professional. Nonetheless, there are some simple documents, like a deed, power of attorney, name change that are not that intricate and can therefore be prepared without an attorney. However, to avoid the possibility of creating unnecessary problems it is always advisable to at least speak to an attorney first.
If you need to discuss any of these issues, please feel free to contact my office for a consultation. Many people want to start the new year of with a new life, particularly after a divorce, relationship split or partnership dissolution. Although not necessarily a bad idea, there are circumstances where you cannot just pick and move out of the state without the noncustodial parent’s permission or the court’s approval. And although the right to raise your family is a fundamental one, the states’ emphasis on the interests of the child trumps any such right. Ensuring that the child has a relationship with both parents is the ultimate objective in the courts’ interference in relocation cases. Each state has laws regarding relocation with children out of state. Some states take the position that the custodial parent’s intentions, the impact on the noncustodial parent’s relationship with the child and the benefits to the child, to name a few, are of paramount importance. While others, like New York, applies the “best interest of the child standard” to make the determination. Previously New York courts applied a three -part analysis to determine if relocation should be permitted. The first part was to determine if the move would pose interference with the noncustodial parent’s “regular and meaningful” visitation/access with the child. If there was a finding that no such interference existed, the court would permit the move. If however, the court determined that there would be interference with the child-parent access, then the presumption that the move would not be in the child’s best interest would be interposed and thus, a showing of “exceptional circumstances” must be shown. If the custodial parent is successful is proving that there are exceptional circumstances, the court will go on to hear the merits of the case and decide if the move is justified. However, because of the problems with applying this three-part test, i.e. the failure of the courts to specifically and uniformly define “meaningful access”, the unfairness in the courts refusing relocation because the “exceptional circumstances” requirement has not been met without considering the benefits to the child despite this and the complexity of standardizing such an analysis in such highly sensitive cases, the Court of Appeals has abrogated this approach and replaced it with a much more fundamental one. This landmark decision was decided in New York’s Court of Appeals in Tropea v. Tropea in 1996. The decision in this case set forth the standard currently used in relocation cases, that is that each case should be decided on its own merits and that the outcome of the relocation should serve the best interest of the child. In a practical sense, what this means is that actual distance is not an automatic deterrent, nor is interference in regularly scheduled child visitation, even if the visits were occurring daily, between child and parent. Factors usually considered now, include the child’s relationship with both parents (particularly the noncustodial parent), a comparison of the quality of education and availability of extracurricular activities in the new location and the current one, the relationship the child has with siblings and extended family in the current state, the degree to which the noncustodial parent is involved with the child’s school, extracurricular activities, healthcare professionals, etc. and the potential for “parental alienation” if the child were to relocate. However, there are some factors that are usually considered more justifiable reasons for the relocation than these, like a better economic position for both parent and child in the new state, health related concerns of either or both and the custodial parent’s remarriage and its impact on the move. In instances where these factors are given considerable weight, the court usually employs other means of sort of “balancing” the imposition placed upon the noncustodial parent’s access to the child. The court may, for instance, direct the custodial parent to pay most if not all of the travel expenses when the noncustodial parent exercises child visitation, allow extended summer and holiday vacations and in some rare circumstances, may allow the move for trial period in an effort to determine its impact on all or some of the factors. Either way, planning to relocate must certainly include getting the noncustodial parent’s written permission in advance, unless that parent’s location is unknown or has not been an active part of the child’s life. Not active means that the noncustodial parent does not see the child at all or sees the child sporadically (although the court’s interpretation of sporadic varies). However, if there is a court order for child visitation, whether the noncustodial parent exercises it or not, that parent’s permission or the court’s approval is required. Joint legal custody, joint physical custody, shared custody, split custody and even sole custody (with a provision in the court order that relocation is restricted), whether issued as a result of divorce or not, requires permission of either the noncustodial parent or the court. Choosing to relocate without either the noncustodial parent’s permission or the court’s approval may result in extremely harsh consequences. There may be criminal penalties ( taking your own child out of state may constitute kidnapping); the court may issue a writ of habeaus corpus (requiring the return of the child to the original state) or restraining order (failure to follow court orders may subject the relocating parent to criminal contempt); custody may be granted to the noncustodial parent as a result; and may cause embarrassment, humiliation and inconvenience by the enforcement of these measures. I always suggest that it is much easier to err on the side of caution and get permission before moving. Of course a move of 50 miles may not necessarily require permission, unless there is an express restriction of any such move, but beyond a minute distance taking the necessary steps beforehand can save unnecessary distress, time and money.
Feel free to contact my office to disuss all of your child custody, child visitation or modification petitions. |
