New York Family Law and Divorce

Child support under Domestic Relations Law 240 or Family Court Act 413 is straightforward to calculate under most circumstances. However, the statute is silent on how to determine support when the child spends equal time with both parents. This question was addressed in the 1998 case of Baraby v. Baraby.

Baraby is often misunderstood by the following quote:

where, as here, the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the “noncustodial” parent for the purpose of support

At first glance, this determination seems grossly unjust; one parent earning slightly more than the other is apparently obligated to pay the full amount of child support. However, that is not what the Court in Baraby held.

In Baraby, the parents had equal time with their children. At trial, the Supreme Court based child support on the time spent with each parent to offset child support. The Appellate Division held that such an offset is impermissible under the statutory framework of DRL 240. DRL 240[1-b](f) requires that “The court shall calculate the basic child support obligation, and the non-custodial parent’s pro rata share of the basic child support obligation”

Since the statute is silent as to joint custody arrangements, the court ruled that for purposes of complying with the statute, one parent must be deemed “custodial” and the other “non custodial.” This step must be taken before a deviation from the support guidelines could be made under DRL 240[1-b](f) and (g).

Until the statute is changed, this is not an unreasonable solution to a child support statute that does not address joint and split custody.

For parents who are contemplating true shared custody, be careful not to fall into the “Baraby trap.” Baraby does not mean the parent with the higher income must pay full child support. It simply provides a way to comply with the statute’s failure to address child support under joint custody.

Tags: Child Support // Add Comment »

The following information is from the U.S. State Department website:

The Children’s Passport Issuance Alert Program (CPIAP) is a service for the parents and legal guardians of minor children. It enables the Department of State’s Office of Children’s Issues to notify a parent or court ordered legal guardian, when requested, before issuing a U.S. passport for his or her child. The parent, legal guardian, legal representatives, or the court of competent jurisdiction must submit a written request for entry of a child’s name into the program to the Office of Children’s Issues.

Request Entry of a Child into CPIAP

Passport Issuance to Children

A person applying for a passport for a child under 16 must show that both parents consent to the issuance or that the applying parent has sole authority to obtain the passport. Passport applications made in the U.S. and at consular offices abroad will both be covered by the new law. Exceptions to this requirement may be made in special family circumstances or exigent circumstances necessitating the immediate travel of the child.

Once a passport is issued, its use is not tracked or controlled by the Department of State. There are no exit controls for American citizens leaving the United States. If you believe that your child may be abducted internationally, immediately contact the Office of Children’s Issues and inform appropriate law enforcement officials.

Information regarding the issuance of a passport to a minor is available to either parent, regardless of custody rights, as long as the requesting parents’ rights have not been terminated. The Department of State’s Children’s Passport Issuance Alert Program is a program to alert us when an application for a United States passport is made. This is not a program for tracking the use of a passport. This program can be used to inform a parent or a court when an application for a United States passport is executed on behalf of a child. The alert program generally remains in effect until each child turns 18. It is very important that parents keep us informed in writing of any changes to contact information and legal representation. Failure to notify CA/OCS/CI of a current address may result in a passport issuance for your child without your consent.

Passports - General Information

A passport is a travel document issued by competent authority showing the bearer’s origin, identity, and nationality, which is valid for the entry of the bearer into a foreign country (8 United States C 1101(3)).

Under United States law, U.S. citizens must enter and depart the U.S. with valid U. S. passports (8 United States C 1185(b)). This requirement is waived, however, for travel from countries within the Western Hemisphere, with the exception of Cuba (22 CFR 53.2). However, each foreign country has its own entry requirements concerning citizenship, passports and visas.

Information regarding those requirements may be obtained from the appropriate foreign embassy or consulate. The addresses and telephone numbers for the foreign embassy or consulate near you are found in our Foreign Entry Requirements .

The Privacy Act and Passports

Passport information is protected by the provisions of the Privacy Act (PL 93-579) passed by Congress in 1974. Information regarding a minor’s passport is available to either parent. Information regarding adults may be available to law enforcement officials or pursuant to a court order issued by the court of competent jurisdiction in accordance with (22 CFR 51.27). If you want us to forward to the Foreign Embassy the information contained in your request to the Office of Children’s Issues, please complete and sign the Foreign Embassy Contact Form. That form contains a waiver of your Privacy Act Rights and the rights of your minor children. For further information regarding the issuance or denial of United States passports to minors involved in custody disputes, or about international child abduction, please contact us at (888)407-4747 (this is a recorded message which provides access to country officers).

General passport information is available on our home page. While we make every effort to be of assistance, the Office of Children’s Issues can assume no legal responsibility for the services provided.

Dual Nationality for Children

Many children, whether born in the United States or born abroad to a United States citizen parent, are citizens of both the United States and another country. This may occur through the child’s birth abroad, through a parent who was born outside the United States, or a parent who has acquired a second nationality through naturalization in another country. There is no requirement that a United States citizen parent consent to the acquisition of another nationality.

The inability to obtain a United States passport through the Children’s Passport Issuance Alert Program does not automatically prevent a dual national child from obtaining and traveling on a foreign passport. There is no requirement that foreign embassies adhere to United States regulations regarding issuance and denial of their passports to United States citizen minors who have dual nationality. If there is a possibility that the child has another nationality, you may contact the country’s embassy or consulate directly to inquire about denial of that country’s passport. The addresses and telephone numbers for the foreign embassy or consulate near you are found in our Foreign Entry Requirements .

More information about the child-related services available to parents through the Bureau of Consular Affairs is available by calling the Office of Children’s Issues at (888)407-4747 and speaking to an officer who deals with a specific country. There is more information about the prevention of International Parental Child Abduction .

Source: US Department of State

Tags: Custody // Add Comment »

In Johnner v. Mims, the Appellate Division, 4th Department affirmed the trial court’s award of $60,425 in counsel fees to the wife. The husband argued that since the wife’s attorney failed to bill her every sixty days, the court could not grant her counsel fees.The Appellate Division disagreed, and said that the right to receive invoices every sixty days rests with the wife, not the husband, and to deny her this award would result in a windfall to the husband.

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The dangers of filling out a statement of net worth carelessly are illustrated in the recent Third Department case of Dudla v. Dudla. The court used the wife’s information in setting the value of the marital home, which included the value she claimed in her statement of net worth, and set the value at $184,500. In denying the husband’s appeal alleging the house was undervalued, the court noted the husband failed to submit any information regarding the value, and that his statement of net worth’s section regarding property was blank.

The basic rule is simple, to establish value of any asset, you must offer some evidence at the trial. What is interesting in this case is the court specifically noted the husband’s real estate section of his net worth statement was blank.

This is just an illustration of one of the many pitfalls of a poorly prepared statement of net worth. The extra time spent completing it accurately is well worth it.

Tags: Discovery // Add Comment »

Choosing the right family law attorney for your divorce is one of the single most important decisions you will have to make. Below are seven critical questions that you should have the answers to at the end of the initial consultation.

Question 1: How much experience do you have in family and divorce law?

A divorce lawyer should have at least 70% of his or her practice dedicated to family law. There are many subtle nuances that someone who only dabbles in family law may miss. The lawyer should also understand the tax implications of a divorce as well.

Beware of lawyers who hold themselves out as “specialists.” New York prohibits the use of this term for lawyers. Likewise, a lawyer who can promise a specific result should be avoided at all costs, lawyers can predict the likelihood of outcomes, but it is impossible to guarantee one.

Question 2: How will I be charged?

It is required that a divorce lawyer provide a written retainer agreement. This agreement should clearly state the lawyer’s hourly rate, the amount of the retainer, whether or not there will be a minimum fee, how and when the retainer will be replenished, how often you are billed, and the minimum time increment for billing.

A lawyer is not permitted to charge a contingency fee for a matrimonial action, nor can a lawyer make a retainer non refundable. A minimum fee is permitted however. A lawyer must send out an itemized invoice no later than every sixty days.

Question 3: What are the steps in the divorce process?

During the initial consultation, the lawyer should explain the basic steps from start to finish, including how to file for temporary orders, how the courts determine custody, child support, spousal support, and how marital property is divided.

Question 4: What is the lawyer’s estimated outcome of the divorce?

While it is often impossible to make an accurate prediction of the final outcome early on, the lawyer should be able to explain a best case, worst case, and most likely case scenario. The lawyer should also explain what additional facts are necessary to obtain a better prediction of the final outcome, along the time and costs involved.

Question 5: How many cases has the lawyer “won?”

How a lawyer answers this question will provide valuable insight as to how he or she handles a divorce. A lawyer who brags about “winning” most of their cases at trial will often mean that the lawyer is a poor negotiator and as a result, will usually have to charge a significant amount of legal fees to take a case to trial that could otherwise be settled on the same terms. A good lawyer should have a small number of cases that ended in a trial, and a much larger number that were settled on favorable terms.

Question 6: What approach does the lawyer take?

Many attorneys hold themselves out as bulldogs, ready to fight at a moments notice. But what most people don’t realize is that a lawyer’s job is not to fight, it is to persuade. A good lawyer will be able to use a number of approaches, ranging from low key to full combat when needed, and know when to use each one to your advantage. A lawyer who only knows how to fight is lacking a number essential tools necessary to resolving a divorce quickly and effectively.

Question 7: What other costs are involved besides legal fees?

There will be court fees, process server fees, and possibly expert fees for custody and valuation of marital assets. During the initial consultation, the lawyer should explain which fees you can expect and which experts may be necessary.

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