ARTICLES

New York’s Changing Wiretap Law: Can a Parent Consent on Behalf of a Child?

I. Where a parent has a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her infant child to record a conversation between the child and another person without the other person' consent, the parent can consent to the recording on the infant child's behalf and admission of the recording is not precluded by CPLR § 4506.   Penal Law § 250.05 states that "[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication."  Penal Law § 250.00(1)…

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Grandparent & Non-Parent Rights to Child Custody and Visitation

  In all of this troublesome and troubled area[,] there is a fundamental principle.  Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling.  Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children.  Again, this is not so much because it is their right, but because it is their responsibility. Bennett v. Jeffreys,…

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What is Legal Custody? Physical Custody? Can a Parent be Denied Visitation?

I.      WHAT IS LEGAL CUSTODY?   Legal custody is the ability to make decisions for a child, including medical, educational, and religious decisions.  Joint legal custody is where both parents are granted legal custody of the child and expected to work cooperatively to make decisions for the child.  Sole legal custody is where only one parent retains legal custody of the child.   II.       WHAT IS PHYSICAL CUSTODY? Physical custody refers to which parent the child primarily lives with.  The parent who the child resides with for 51% of the time or more has primary…

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What are the grounds for divorce? What is “No Fault Divorce”?

In order to obtain a divorce, the party seeking the divorce must establish "grounds" for the divorce.  In other words, each state determines what reasons they believe justify a divorce and, to receive a divorce, one of those reasons must be proved.   New York has seven different grounds for divorce:   The parties were married in New York, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement proceeding, or Cruel and inhuman treatment of the plaintiff by…

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Can I Bring a Divorce Action in New York? What is Residency?

Depending on which side of the litigation a spouse is on, New York's laws can be much more generous than the laws of other states.   In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., "forum shopping," New York requires that a plaintiff establish a sufficient connection to the State of New York  in order to commence a matrimonial proceeding in New York.  Proving this connection to New York is commonly referred as establishing "residency."   Residency can be met by proving that:…

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Equitable Distribution of Marital Debts

I.      Equitable Distribution of Marital Debts A.     Can a Court Distribute Debts as Well? Simply put, yes.  In effecting equitable distribution of property, a court can also allow marital debts to be split between the parties. Nielsen v. Nielsen, 256 A.D.2d 1173 (4th Dept. 1998).  However, the court has discretion to refuse to take into consideration marital debts that are unproven. Fabricius v. Fabricius, 199 A.D.2d 695 (3d Dept. 1993).   In determining whether the debt is marital or separate, the court will look at the nature of the debt itself, the manner in which and…

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Equitable Distribution Overview

I.      What is Equitable Distribution of Marital Property?   During a marriage, each spouse will usually accumulate assets in his or her name.  Frequently, there will also be assets titled in the name of both spouses, jointly.  "Equitable distribution" is the equitable, and not necessarily equal, division of those assets between the spouses pursuant to a matrimonial action.   Absent an agreement between the parties, a court will determine each parties respective rights to "marital property" and "separate property," and will provide for the disposition thereof in the final judgment. DRL 236-B(5)(a).  Marital property "shall be distributed equitably…

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Temporary & Post-Divorce Maintenance

I.      WHAT IS MAINTENANCE?   New York calls "maintenance" what other states call "alimony."  However, there are two different types of maintenance and the lingo can be quite confusing.  Even more importantly, the Legislature has recently enacted, and is expected to enact even more, major changes to the statutes controlling maintenance.   The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.   Gordon v. Gordon, 979 N.Y.S.2d 121, 123 (2d Dept. 2014) (citing, Sirgant…

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Sanctions for Frivolous Conduct in a Civil Proceeding

A court may also order counsel fees to sanction "frivolous conduct" by a party during the proceeding. 22 NYCRR 130-1.1.  Conduct is frivolous if it:   is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or asserts material factual statements that are false.   Id.  Interestingly, frivolous claims of frivolous conduct are, in and of themselves, frivolous conduct!   If you have any questions or concerns, click…

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Obtaining Attorneys & Experts Fees from the Other Party

In the United States, we follow what is commonly referred to as the "American Rule": that a "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyseka Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).  Accordingly, it is the rule in New York that "a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule. No. 1 Funding Center, Inc. v. H & G Operating Corp., 49 A.D.3d 908, 911 (3d Dept. 2008) (internal citations omitted).  Thus, unless…

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