New York: Family Law

Child Custody
Divorce

Child Custody
1. Introduction
  
  If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover. When determining child custody, the court’s primary consideration is to decide what is in the “best interests of the child, and what will best promote its welfare and happiness.”¹
2. Text of Statutes
  
  1) N.Y. Dom. Law § 70 – Habeas corpus for child detained by parent
  
  (1) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness and make award accordingly.
  
  (2) Any order under this section which applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to the provisions of part eight of article ten of such act, sections three hundred fifty-eight-a and three hundred eighty-four-a of the social services law and other applicable provisions of law against any person or official having care and custody, or temporary care and custody, of such child.
  
  2) N.Y. Dom. Law § 240 – Custody and child support; orders of protection
  
  (1) (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child’s custody and support, including any prior orders, and shall enter orders for custody and support as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section. If a parent makes a good faith allegations based on a reasonable belief supported by the facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases, there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eight-four-a of the social services law and other applicable provisions of law against any person having care and custody or temporary care and custody, of the child.
3. Cases
  
  A search of New York cases citing these laws did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
4. Practice Pointers
  
  New York forms regarding child custody are also available online.²
1. N.Y. Dom. Law § 70. ↩
2. New York State Unified Court System, “Family Court Forms – Custody & Visitation Forms,” available at http://www.nycourts.gov/forms/familycourt/custodyvisitation.shtml (last visited Apr. 28, 2012). ↩
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Divorce
1. Introduction
  
  Until July 1, 2010, New York recognized divorces only upon fault-based criteria.¹ Thus, in New York, divorce had to be based upon one of the following: (1) cruel and inhuman treatment;² (2) abandonment for a continuous period of one year or more;³ (3) imprisonment of more than three years subsequent to the marriage;⁴ (4) adultery;⁵ (5) conversion of a separation judgment;⁶ (6) conversion of a written and acknowledged separation agreement after living separate and apart for more than one year.⁷ Under New York’s no-fault divorce bill, however, a new ground was added, allowing divorce where the relationship between husband and wife had broken down irretrievably for a period of at least six months.⁸ The grounds do not include allegations of bad conduct against the plaintiff or any of the following: irreconcilable differences; incompatibility; mutual consent; no communication.⁹ The complaint for divorce must specify the grounds for the divorce and any ancillary relief sought—e.g., attorneys fees, child custody, etc.¹⁰
2. Text of Statute(s)
  
  1) N.Y. Dom. Law § 170 – Action for Divorce
  
  An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
  
  (1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
  
  (2) The abandonment of the plaintiff by the defendants such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
  
  (3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
  
  (4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
  
  (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
  
  (6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgement of proof of such agreement of separation.
  
  (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
  
  2) N.Y. Dom. Law § 173 – Jury Trial
  
  In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.
  
  3) N.Y. Dom. Law § 175 – Legitimacy of Children
  
  (1) Where the action for divorce is brought by the wife, the legitimacy of any child of the parties, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage.
  
  (2) Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offense charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed.
3. Cases
  
  Research is ongoing. My search of New York cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
4. Practice Pointers
  
  New York law requires parties in divorce or child custody proceedings to use standard forms in their disputes. These forms are available online.¹¹
1. Nevertheless, the parties could agree to enter into a separation and have the separation agreement or judgment be the further basis for a divorce after another year. The parties could also agree to an uncontested divorce as long as one of the parties willingly alleged one of the fault-based grounds or had the requisite separation agreement or judgment. ↩
2. N.Y. Dom. Law § 170.1. ↩
3. N.Y. Dom. Law § 170.2. ↩
4. N.Y. Dom. Law § 170.3. ↩
5. N.Y. Dom. Law § 170.4. ↩
6. N.Y. Dom. Law § 170.5. ↩
7. N.Y. Dom. Law § 170.6. ↩
8. N.Y. Dom. Law § 170.7. ↩
9. “Frequently Asked Matrimonial Questions,” available at http://www.victorylibrary.com/divorce/faq.htm (last visited Apr. 28, 2012). ↩
10. Id. ↩
11. New York State Unified Court System, Divorce Resources, available at http://www.nycourts.gov/divorce/forms.shtml (last visited Apr. 28, 2012). ↩
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New York: Family Law

Contents

Child Custody

Divorce