Family Court Judge, W. Dennis Duggan, sitting in Albany County, New York, recently ordered a father to pay 71% of private school tuition for his son even though the parties had an oral agreement whereby the Mother would pay 100% of the private school tuition for the child.  Judge Duggan in his decision said there is “a sound and substantial basis” for requiring the father to pay the lion’s share of the tuition pursuant to New York State Family Court Act section 413 (1)(c)(7).  This section requires the non-custodial parent to pay educational expenses if “private, special or enriched” schooling would be in the best interest of the child as determined by the Court.

 Private School Best Educational Setting For Son

Judge Duggan ruled when the father consented to have his son attend the Christian Brothers Academy, this was an acknowledgment by him attending this school was the best educational setting for his son.  Although the parties had an oral agreement which required the mother to pay the entire $55,600 tuition for the school, Judge Duggan ruled this agreement was “not relevant to the outcome of [the father’s] objections” to the Support Magistrate’s finding which directed him to pay 71% percent of the schooling costs.  “The reason that this is so is because the Family Court has no authority to enforce contracts.”

Agreement Regarding Private Not In Writing

Judge Duggan took the position that the Court wasn’t setting aside the parents agreement because there was no agreement.  Agreements, pursuant to New York State Statute of Frauds, must be in writing.  Although there was an oral discussion, the Judge’s decision was this was not a binding agreement.  The Judge further noted because the Family Court is a court with “limited jurisdiction, it has no authority to rule on such issues.”  “Its jurisdiction is limited in this case to applying Family Court Act section 413(1)(c)(7) to the evidence.  The interpretation of an oral contract between the parties imposing equitable relief is beyond the courts authority.”

 Son Thriving In Private School

Judge Duggan took into consideration a Support Magistrate had made findings the parties son was “thriving and his emotional state had improved because he had attended the Christian Brothers Academy.”  Prior to this, he had been attending public school where he had been subject to being bullied.  The Judge’s position was the cost of the Christian Brothers Academy were proportionate to the improvement in the child’s life and the benefits the child received from attending this school.  The allocation of 71% of the tuition cost to the father was based on the analysis under the Child Support Standards Act.

Conclusion

Fathers beware!  If your children attend private school you can be forced to pay for a portion of the tuition.

William Marriato of Topeka, Kansas, in 2009, responded to an advertisement on Craigslist.  A lesbian couple, also located in Kansas, were seeking a sperm donor.  He stepped up to the plate and donated the sperm.  He did this to be kind and helpful.  He received no financial remuneration.  The donation resulted in the successful birth of a daughter.

 Lesbian Couple Breaks Up

After the child was born, the lesbian couple broke up.  One of the women was unable to continue working because she had become ill.  As a result, she applied for welfare from the State of Kansas.

Child Welfare Department Goes After William Marriato For Child Support

The Welfare Department in Topeka, Kansas brought legal proceedings against William Marriato.  Mr. Marriato argued he had entered into written agreements prior to making his sperm donations.  He claimed this agreement released him from all financial responsibility from children born from his sperm donation.  The Department of Children and Families disagreed with Mr. Marriato.  They claimed he was financially responsible for supporting the child because a physician did not perform the artificial insemination.

 Kansas Law Considers Him The Father

Unfortunately, for Mr. Marriatto, under the law in Kansas, he is considered the father of the child and is financially responsible for child support.  This was because a physician did not handle the artificial insemination of the mother.  In Kansas the utilization of a physician to artificially inseminate the mother is necessary to prove the sperm donor was actually a donor and did not have sexual relations with the mother.  In the event a physician had been utilized to artificially inseminate the mother, the physician would first check for sexually transmitted diseases.  In addition, the physician would have investigated as to whether either of the parents had genetic disorders which would have impacted on the child.

Conclusion

Before you donate sperm, you should be careful to investigate the laws of the state you are in.  Kansas is a state that does not recognize same sex marriages.  Self-help in this situation allowed for the birth of a healthy child and caused the gracious, cooperative, good intentioned father to be stuck with between 18 and 21 years of child support!

In a recent case in Nassau Country, Justice Daniel Palmieri, sitting in a Matrimonial Supreme Court Part, awarded a husband legal fees of $84,000 pursuant to New York Domestic Relations Law Section 237.  A trial had taken place between the husband and wife.  The parties agreed the court would consider issues concerning attorney’s fees.  The husband had requested $120,000 in legal fees for the two different law firms that had represented him during the course of the matrimonial litigation.

Obstructionist Tactics

The wife’s attorneys presented an argument that the husband had engaged in “obstructionist tactics” by forcing the case to go to trial.  They claimed he had unreasonably refused to settle the case.  His actions, in refusing to settle the case, resulted in the litigation being prolonged and a trial being necessary causing significant attorney’s fees to accrue.  Justice Palmieri took the position the husband did not engage in obstructionist tactics.  He stated, in his decision, the husband simply did not want to settle. His decision stated “bad faith by a litigant could not be inferred because the Court had ruled against the litigant with regard to certain applications before it.”

Disparity Of The Income Of Husband And Wife

The Court took into consideration the disparity in income between the husband and wife.  Husband earned about $90,000 a year while the wife earned $365,000 per year.  Unfortunately for the husband, the Court refused to award him attorneys fees for the legal service provided by one of the two law firms that had represented him because no bills or affidavits documenting said attorneys fee’s had been submitted with regard to this application.  In the end, the court found the wife should pay $84,000 dollars in legal fees pursuant to the husband’s application.  The court ordered that $53,000 was to be paid to his attorney and the balance was to be paid directly to the husband.

Conclusion

Fathers who exert their rights can succeed in obtaining all types of relief from the Family Courts and Supreme Courts in the State of New York.

Judge Lillian Wan, sitting in the Family Court in Bronx County, New York, recently made an unusual decision which resulted in an out of state father receiving custody of his son.  In this case, the father’s name was London.  He resided in Georgia.  He had brought an application for custody.

Neglect Proceeding Against Mother

Neglect proceedings had been brought against the child’s mother, Sameerah.  The parties’ son, Jadaquis, and his three siblings had been placed in foster care in New York.  Jadaquis had been placed in a non-kinship foster home.  He had been separated from his brothers.  He had been moving from one foster home to another.

Interstate Compact Concerning Placement of Children

Pursuant to an interstate compact considering the placement of children, an application was brought to the child welfare authorities in Georgia on three separate occasions.  These applications requested a review and approval of London’s residence in Georgia as an appropriate place for Jadaquis to live.  On each of the three occasions, the Georgia Welfare authorities found London’s residence in Georgia was unsuitable for Jadaquis to reside in.

Judge Lillian Wan noted, even though the Georgia Welfare authorities took the position London’s residence, in Georgia, was unsafe for Jadaquis to reside in, the Georgia authorities took no action regarding London and his wife’s six year old child who resided with them in the home.

Judge Wan ruled Jadaquis, who during the pendency of this proceeding lived in five non-kinship foster homes, should be allowed to live with his father in Georgia.  Judge Wan’s decision held Jadaquis’ best interest would be to reside with his father in Georgia.  Judge Wan gave the father sole custody of his son.

            Supreme Court Justice, Kenneth Fisher, sitting in Monroe County, New York, recently dealt with issues concerning the obtaining of mental health records for litigation purposes by use of a parental release under the Federal Health Insurance Portability and Accountability Act (HIPAA).  The court held a HIPAA release form was inappropriate to obtain medical records for children. The court went further and found that only a court order after disclosure and presentation to a judge would be appropriate to obtain children’s mental health records related to custody litigation.

            Justice Fisher ordered the father, who had obtained the mental health records pursuant to a HIPAA release form, to return the records of his daughter to the psychologists and psychiatrists who had given them to him.  The psychiatrist had provided the father with medical records because he believed “parents have an unfettered right of disclosure.”

 Privileged Records

            In this case, the court held “a party seeking to obtain privileged material as it pertains to a minor child is obligated to utilize a judicial process sufficient to give notice to the court and the treatment provider by a motion or application for a judicial subpoena deuces tecum on notice to the parties and the treatment provider.”  The court went on to say it had a duty in custody matters to deal with issues concerning the children’s best interest. The court stated that in “the context of a child custody proceeding within a matrimonial action communications between an unemancipated minor and her therapist may not be disclosed to the parties or counsel in the absence of judicial process sufficient for the core opportunity to exercise its obligations to determine the best interests of the child and its role as parents patriae in determining the custody of a minor child.”

Conclusion

            HIPAA forms are insufficient to obtain medical records in contested custody proceedings. An application has to be made to the court.

Elliot S. Schlissel, Esq. and his dedicated associates are available 7 days a week to speak with clients and potential clients.  They provide aggressive, responsible, expert legal representation regarding all types of matrimonial and family law issues.  Call for a free consultation.

The divorce rate for second marriages, as one might think, would be lower than that of first marriages. However, this is also not true. Approximately two-thirds of all second marriages end in divorce. There are a variety of reasons for this increase in the divorce rate. Since individuals going through a second divorce are experienced with the legal system from the first divorce, they are not as afraid of the system. They realize it is not as difficult to obtain a divorce as they had anticipated. It is also thought individuals in second marriages are less willing to deal with aggravation and other marital problems before they move forward with a divorce than individuals in first marriages.

 Divorces Are Expensive

The enactment of no-fault divorce statutes in all 50 states in the United States has brought down the cost of divorce. If the parties do not have significant assets, are reasonable and can have mature, intelligent discussions with each other concerning issues such as custody, visitation, child support and division of assets, divorce can be simple, inexpensive and not overly burdensome. Yes, there still are cases where people go to war with each other that causes divorces to be expensive.  However, these “war of the roses” types of cases are rare.

Only Women Receive Alimony

This is also simply untrue. In the State of New York, the statute concerning alimony which is called spousal maintenance, is gender neutral. The spouse with the lower income or lack of income whether it be a male or a female can petition the court for spousal maintenance based on a formula related to the needs of the lower income or non-working spouse. In those situations, the spouse with the higher income must pay spousal maintenance over a period of time to the other spouse. In today’s marketplace, many women are the primary bread winners of their family. In these cases, men can petition the court for spousal maintenance and be successful.

Many people think a mother will always get custody of the children in a divorce. This is simply untrue. In the State of New York, each parent has equal rights to obtain custody. The decision as to which parent receives custody is based on the best interest of the child or children. In the end, if the parties cannot resolve custody issues through negotiations between the attorneys, a hearing will be held. At the hearing, a judge will determine who is awarded primary residential custody of the child or children. In situations where both parents have been active in their children’s lives, joint custody is often the best route to follow.

There are numerous factors courts examine to determine who is the more suitable residential custodial parent.  Custody litigation is complicated.  Make sure to have an experienced Family Law attorney representing you in these proceedings.

 The father brought an application to the Family Court requesting he receive joint custody of the child. The Family Court found the mother had intentionally violated the prior custody order.

On appeal, the court found the mother had relocated to Massachusetts without providing the father with an address, telephone number or any other means to get in touch with the child. During the course of the hearing, the mother also conceded she had been intoxicated in the presence of the child, which was a violation of the prior custody order.

In the end, the court based its opinion on the mother’s lack of acting appropriately in the presence of the child because of  alcohol abuse and other mental health issues. The court found the mother to be an unfit custodial parent.

New York has had a no fault divorce law for approximately 20 months. During this period of time, divorce rates have increased throughout New York State between 6 and a 9%. This is a similar increase other states experienced when they adopted no fault divorce law.

Irreconcilable Differences

To obtain a divorce in New York, you no longer have to allege cruel and inhuman treatment, adultery, abandonment or living separate and apart under a written agreement of separation for a period of more than one year. All you have to allege is you have irreconcilable differences with your spouse for a period in excess of six months. You don’t even have to explain what the irreconcilable differences are. Not getting along for six months is enough to get you divorced in New York State!

So now you’re involved in a divorce and you have alleged irreconcilable differences. Issues such as equitable division of property, custody of children, child support, spousal maintenance (alimony), health Insurance and other issues still must be resolved.

 Negotiate Your Divorce

            The best way to deal with a divorce is to negotiate all the issues out of court and enter into a written agreement concerning these issues. This will most often eliminate the need for either of the parties to the divorce to actually appear in court. A trial is not necessary under the new No Fault divorce law.

 Spousal Maintenance

            At the time the No Fault divorce law was passed, the legislation in New York passed a method for calculating temporary spousal maintenance (alimony). This is the amount of money the party to the marriage with the superior earning power pays to the party of the marriage with lesser earning power. Unfortunately, the new statute, instead of simplifying matters, made it more complicated and has resulted in many unfair court decisions. The temporary spousal maintenance statute doesn’t deal with who has to pay the household bills such as mortgage payments, electricity payments, fuel oil payments and cellphone payments. They are not dealt with in this new temporary maintenance statute. It is expected that in 2013, the legislature will consider amendments, recommendations and modifications to this temporary maintenance statute.