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AVOID THE PRELIMINARY CONFERENCE

 

The preliminary conference is the first court appearance in a contested divorce.  At this conference, the lawyers for the parties explain to the judge what issues in the case are unresolved such as child custody, child support, equitable distribution and alimony.  The judge then sets a deadline for discovery, which is the exchange of information by the parties prior to trial.  Very rarely does the case get resolved at the preliminary conference.  The purpose of the preliminary conference is to set a schedule for resolving the case and to let the judge know what issues are in dispute.

 

If you and your spouse can resolve these issues together in an amicable manner, then the preliminary conference is NOT NECESSARY,saving the couple time, legal expense and aggravation.

 

If you desire a FRIENDLY, UNCONTESTED DIVORCE, call the dedicated staff at DivorceFilers.com today at 212-608-1630.

 

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Child Support – Award – CSSA – Shared Custody – First Department Rejects Rule Established in Baraby That in an Equally Shared Custody Case the Parent Who Has the Greater Income Should Be Considered the Noncustodial Parent for Purposes of Support

In Rubin v. Salla,  — N.Y.S.2d —-, 2013 WL 1681220 (N.Y.A.D. 1 Dept.)  the Appellate Division, First Department rejected the rule established in Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of support. It held, based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the  “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”  Inexplicably, the Court distinguished the decision in Baraby, although it appears to have rejected its holding entirely.

Plaintiff (mother) and defendant  ( father) were the unmarried parents of a 9–year–old son. The mother and father always lived  separately. In April 2009, the mother commenced an  action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support. The father also sought primary custody of the child. After  trial, the court  awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father moved for summary judgment dismissing the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father’s motion included a calendar showing that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods equated to the child being with the father 56% of the time and with the mother 44% of the time. The mother conceded that the child would reside with the father “most of the time,” that the father was the “de-facto custodial parent,” and that she may not be the “custodial parent” for purposes of the Child Support Standards Act (CSSA). She also agreed that under a “strict application” of the CSSA, the father could not be ordered to pay child support. Nevertheless, the mother argued that she was entitled to an award of child support because any other result would be unjust and inappropriate.

Supreme Court denied the father’s summary judgment motion, finding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

In reversing the order of the Supreme Court, Justice Richter, writing the opinion for the First Department,  held that under the current child support structure enacted by the Legislature, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. The CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court.  Unlike the discretionary system of the past, a court is required to make its child support award pursuant to the CSSA’s provisions. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.” The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction.

Justice Richter observed that in Bast v. Rossoff,  91 N.Y.2d 723 (1998) the Court of Appeals addressed how child support awards should be calculated in cases involving shared custody. Contrary to the conclusion reached by the court below, Bast left no other option than to direct payment by the noncustodial parent to the custodial parent. The Court in Bast recognized that there are “practical challenges” in applying the CSSA to shared custodial arrangements. Nevertheless, Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent”. Bast explained that “[i]n most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time”.

Justice Richter, referring to Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), pointed out that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. She noted that Courts have uniformly followed Bast, finding that where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—stood in marked contrast to the cases cited by the mother where the parents had equal, or essentially equal, custodial time.

Justice Richter found that the Supreme Court ignored its own custody schedule when it stated that the parents here shared “very nearly equal” physical custody of the child. In an attempt to equalize the custodial time, the court focused on how much “waking, non-school time” the child spent with each parent. The Supreme Court suggested that a custodial parent could be identified by calculating the number of waking hours he or she spends with the child.  This approach was  rejected in Somerville v. Somerville,.5 AD3d 878 (3d Dept 2004).  She reached the same result here and rejected the counting of waking hours as a method of determining who is the custodial parent.

Although the Court in Bast did not elaborate on what constitutes a “majority of time,” Justice Richter believed that the number of overnights, not the number of waking hours, is the most practical and workable approach. She found that there are sound policy reasons why calculating the waking hours spent with each parent should not be the method used to determine who is the custodial parent. Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing. Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. The use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”. An hour-by-hour analysis of custodial time is just not workable and would run afoul of the “greater uniformity [and] predictability” the CSSA was designed to promote.

Justice Richter wrote that in finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. Neither the CSSA, nor Bast v. Rossoff, allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal.  Moreover, there was no support for the mother’s argument that in shared custody cases, a court has the discretion to determine the custodial parent based on what is “just” and “appropriate.”

The New York No Fault Statute Encourages Couples to Pursue their Desire to Divorce

“No Fault” Divorce in New York makes it Psychologically Easier to Divorce

 

In the past, many couples were hesitant to divorce in New York even though they were ready and willing to divorce one another in a friendly manner. The reason for this was due to the fact that they were forced to assign “blame” on one another in order to meet the statutory requirements of “fault” previously required.

In October, 2010, the New York Domestic Relations statute was amended in order to allow a divorce based upon the “irretrievable breakdown” of the marital relationship for the past six months under a new provision under Section 170 (7) of the Domestic Relations Law of the State of New York. Now, instead of accusing one party of physical or mental cruelty, abandonment, adultery or a refusal to engage in intimate, martial relations otherwise known as constructive abandonment, one party now simply has to allege that the couples no longer “gets along.”

Many couples truly interested in obtaining a divorce in the past simply delayed or even forgot about their desire to end the marriage since the very thought of making what in many instances was a falsie accusation against the other was a repugnant thought. Under the new amended statute, such false and unsubstantiated allegations has become a dinosaur relic of the past. New York has finally joined the rest of the country in enabling its residents to obtain a divorce from one another in a friendly, non-accusatory manner.

The new law has most definitely caused an “uptick” not in the number of people interested in obtaining an uncontested divorce in the New York State but rather in the number of people who are actually seeking out and obtaining final judgments of divorce. Professionals handling and processing divorce cases no longer have to perform the so-called “wink and the nod” when listening to their clients tell them how their spouse either, abandoned them (physically or sexually) committed adultery or behaved in a cruel and inhuman manner towards them.

New York has not only joined the other 49 states in finally allowing its citizens to obtain a “no-Fault” divorce but it has truly entered the new millennium in allowing true democratic freedom and truth to prevail in the world of matrimonial law.

 

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