Nassau County NY Business Lawyers | Bashian & Papantoniou, P.C.

Family Law Update: California Judgment, Dissolving Marriage And Distributing Marital Assets, Was Entitled To Full Faith And Cred

A California court’s divorce judgments, dissolving the parties’ marriage and distributing the marital assets, were entitled to full faith and credit by the New York courts. Under full faith and credit doctrine, out-of-state judgments give res judicata effect to those issues conclusively decided, thereby avoiding relitigation of those previously decided issues in any other State. Thus, the wife’s subsequent New York divorce action was barred by res judicata. The New York Supreme Court held that the California courts had requisite jurisdiction to dissolve the marriage, where, regardless of the wife’s domicile, the husband had was a resident of California. Furthermore, the California court had clearly asserted its jurisdiction over the wife in renewing the divorce action, despite initially withdrawing its jurisdiction over the action.

Family Law: Change In Circumstances Required Modification Of Visitation Order To Limit Non-Custodial Parent's Visitation

The NY Supreme Court, Appellate Division, held that a custodial parent established change in circumstances that required modification of visitation order to limit non-custodial parent’s visitation to ensure the best interests of the child; non-custodial parent harassed and threatened custodial parent, used illegal drugs in front of the child, overmedicated the child by giving him adult cold medicine in a dosage that was higher than that recommended for adults, and brought the child to watch as non-custodial parent shot rats that were inside grandparents’ home, all of which caused deterioration in non-custodial parent’s relationship with child. (White v. Cicerone)

Family Law: Modification Of Child Custody Order To Permit Custodial Father To Move With Child To Thailand Was In Best Interests

A father, who resided in Pennsylvania and had primary physical custody of his child, cross-petitioned for a modification of a child custody order which would permit him to move with the child from Pennsylvania to Thailand. Under New York law, a party seeking relocation of his or her child must establish, by a preponderance of the evidence, that the relocation would be in the child’s best interests. In this case, the Family Court credited the father’s explanation for moving of desiring to keep his family intact; his current spouse had been offered a transfer by the French corporation for which she worked, with lucrative pay and benefits. While recognizing that the move would severely restrict the birth mother’s parenting time, the Family Court observed that such restriction might be positive for the child since the birth mother (and her parents) had frequently engaged in behavior that had a harmful effect on the child. This included repeated derogatory comments about the father, attempts to manipulate the child to say negative things about the father, and the frequent use of profanity around the child. The father won the modification and mother appealed. On appeal, the Supreme Court, Appellate Division, Third Department affirmed the Family Court’s decision and held that the modification of a child custody order to permit the custodial father to move with the child to Thailand was in the best interests of the child . Hissam v. Mancini

Family Law: Mother Entitled To A Hearing On Return Of Children Who Had Been Removed From Her Home And Placed With Their Father

In the early morning hours of February 4, 2009, three children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the Garden City Administration for Children’s Services filed petitions in the Family Court, Queens County , alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their father and his mother (the children’s paternal grandmother), with whom the father lived. On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care.

The Supreme Court, Appellate Division, Second Department held that the Family Court’s finding of a legal distinction between a child’s “removal” from the home and placement in the custody of another parent, on one hand, and placement in the custody of a governmental agency, on the other hand, is illusory. The Court reasoned that the removal of children from their mother’s home and temporary placement into the custody of their father, on an emergency basis, was a “removal” triggering a hearing on the mother’s application for return of the children, even though the children were not placed into government-administered foster care. The statute requiring a hearing upon the application of a parent of a child who had been temporarily removed did not make any distinction between removal and placement into the custody of another parent, on one hand, and removal and placement into the custody of a governmental agency, on the other hand. Read the Court’s Opinion .

Husband's Appeal To Bring Suit Against Former Wife's Attorney Seeking To Recover Damages For Fraud And Breach Of Fiduciary Duty

The Supreme Court, Appellate Division, Second Department recently upheld the lower court’s decision to deny a husband’s action against an attorney, in which the attorney represented his former wife in a divorce action, seeking to recover damages for fraud and breach of fiduciary duty . The husband alleged that the attorney advised his former wife to conceal funds in retirement accounts and bank accounts prior to the wife’s commencement of the divorce action. The Second Department held that, the lower court was within its discretion to deny the husband’s motion for leave to enter a default judgment and that the husband failed to state viable claims for fraud and breach of fiduciary duty against the attorney. Hense v. Baxter

Katie Holmes Seeks Split from Tom Cruise Under New York Law

It appears a legal battle is waiting in the wings to determine the proper venue for the divorce suit between actors Katie Holmes and Tom Cruise , and custody over their daughter Suri. According to New York state law, a couple must satisfy one of the following residency requirements to be divorced in New York:

You or your spouse must have been living in New York State for a continuous period of at least two years immediately before the date you start your divorce action; OR
You or your spouse must have been living in New York State on the date you start your divorce action and for a continuous period of at least one year immediately before the date you start the divorce action, and at least one of the following must also be true :
1. Your marriage ceremony was performed in New York State; OR
2. You lived in New York State with your spouse as married persons; OR
3. You or your spouse must have been living in New York State for a continuous period of at least one year immediately before the date you start your divorce action and your grounds for divorce must have happened in New York State. (“Grounds” means a legal reason for the divorce); OR
4. You and your spouse must be residents of New York State (no matter how long) on the date you start your divorce action, and your grounds for divorce must have happened in New York State. (“Grounds” means a legal reason for the divorce).

Holmes is believed to have been renting an apartment in Manhattan just prior to her filing for divorce and also claims in her divorce papers that the former couple are residents of New York State.

New York Divorce Lawyers Are Seeing a New Shade of Green

With a number of our neighboring states having already legalized same-sex marriage, notably Massachusetts, Connecticut, New Hampshire and Vermont, the recent decision adding the state of New York to that list is expected to spur a ripple effect throughout the nation. But this is not the only expected byproduct. With a population of roughly 19 million, we have now become the largest state to legalize gay marriage. However in this country, with marriage, inevitably divorce follows closely behind; along with alimony, child support, and maintenance.

With the State of New York now recognizing same-sex marriage, so too will the courts acknowledge their right to divorce. However, what if one marries in New York and then moves to one of the many states which still refuse to recognize the union? While some states, like Maryland, may grant the divorce without needing to legally recognize the marriage, others, such as Texas, may allow neither. No matter what state you marry in, live in, or move to, one thing is for sure: courts everywhere are going to need to adapt to these changes.

And what of the New York property law? In this state, the equal division of a married couple’s property and assets only considers those acquired after marriage. However, as a result of the long and uphill battle towards the legalization of same-sex marriage, some couples have spent 20 years or more together, pooling their incomes, purchases and debts. Will those ‘pre-marital contributions’ count for anything in the eyes of the courts? The law is adapting, and we are going to need to be ready for the logical progression that is certain to follow. For more information contact the attorneys at Bashian & Papantoniou, P.C.

New York's Same Sex Marriage Law Stands | Marriage Equality Act

New York’s highest court has dismissed a case challenging the administrative procedures that allows allow gay men and women to marry in New York State. The Marriage Equality Act was challenged on the basis that the NYS Senate violated New York’s Open Meetings Law because it held closed-door meetings before voting on the Act instead of allowing citizens to attend and observe the meetings. The purpose of the Open Meetings Law is to keep citizens informed of what their elected officials are deciding and their reasoning so as to “retain control over those who are their public servants.” Pub. Officers Law, Art. 7 § 100. Last year, an appeals court struck down the Open Meetings argument, and in or around October, 2012, the Court of Appeals declined to hear the challenge, thus allowing the Marriage Equality Act to stand in New York.

Nobel Prize Winner Claims Professional Negligence By His Lawyer Forced Him To Lose Some Of His Award Money In Divorce

Jury selection began today in Federal Court in Washington, D.C. for a case involving Nobel Prize award money. Prior to winning the Nobel Prize in Economics in 2001, Joseph Stiglitz hired a divorce attorney. Stiglitz is now suing his former attorney for $1 million for professional negligence, which he claims resulted in him having to share a portion of the $300,000 prize money with his ex-wife.

Stigler claims that in 2000, around the time he hired attorney Rita M. Bank, he was contemplating filing for divorce in Washington D.C. against his second-wife, Jane Hannaway. According to Stigler, he made it clear to Bank that he might potentially win the prize and that he was concerned about losing his future earnings in the divorce. Despite his concerns, Bank convinced him to attempt to settle with Hannaway instead of filing divorce papers in Washington, D.C. Stigler claims that Bank intentionally did not disclose to him that she had previously consulted with Hannaway.

Later, in 2002, Bank advised Stigler that she was leaving her current position to join a firm that was already representing Hannaway, and could therefore no longer represent Stigler due to the conflict of interest involved. The complaint states that Hannaway found out “weeks, perhaps months” earlier, and proceeded to file divorce papers in New York. Unlike Washington D.C., state law in New York allows a party in a divorce proceeding to make a claim on a spouse’s future earnings. According to Stigler, Bank’s delay in filing the divorce papers resulted in his ex-wife being awarded some of the prize money in the divorce.

NYC Strikes a Deal to Help Foster Care Youth Find Housing

Garden City has formed an agreement based on a proposed settlement of a lawsuit claiming inefficiencies in preparation of youth exiting foster care. The lawsuit alleged that the Administration for Children’s Services (ACS) was inadequately preparing foster care children who reached the age of 18 to live independently, resulting in a large number of them ending up homeless. Under state law, the city is required to both supervise and assist in finding housing for youths who have aged out of foster care.

Following two years of negotiation among the ACS, the Legal Aid Society and the advocacy group Lawyers for Children , an accord has finally been made. It ensures that the city maintain a unit at ACS for the exiting youths, begin training of foster care agencies, modify the procedures for helping in the process of finding housing and improve teens’ relations with and access to resources. The children’s services agency will develop permanent stable housing plans and will work with foster care agencies to maintain that the plan is created in time to secure adequate housing. Those youths will be monitored by both the city and agencies until their 21 ^st birthday. The accord also seeks to do some retroactive good; helping former foster children, currently older than age 21 to find appropriate housing.

Between 800 and 1,100 teenagers exit foster care annually, an unfortunately large portion of which can attribute to a significant percentage of the staggering numbers of homeless youths. The suit noted lamentable statistics, citing studies and testimony from officials with the city’s Department of Homeless Services identifying that roughly one third of youths in homeless shelters were once foster care children. This agreement hopes to bring that sizeable number down in addition to better planning for the future generation of youths exiting the system.

Resisting Arrest Charges Dismissed in Brooklyn Family Court

On May 7, 2012, the Court in Matter of Victorino W., D-29783-11, dismissed two resisting arrest charges against two female students when it held there was insufficient evidence to show that neither of the two respondents knew they were being arrested. The first student Victoria W. allegedly pushed a safety agent during a cafeteria fight, climbed onto a table and refused to come down when ordered to do so. It is alleged the second student Karen B. bit a Garden City police officer who was trying to escort her into an ambulance. The Court reasoned that “[b]ecause neither respondent was made aware that she was to be arrested, before she committed the acts alleged to constitute resisting arrest, and because the circumstances were not such as to give an inference the respondent knew she was to be arrested, the evidence in each case is insufficient as a matter of law to establish an intent to resist arrest.”

Pursuant to New York Penal Law § 205.30, “a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” Resisting arrest is a class A misdemeanor.

Please contact Erik M. Bashian, a New York trial attorney and former juvenile prosecutor, if your child is the subject of an arrest and requires legal representation in the New York Family Court system.