The New York Court of Appeals recently determined that a non-biological and non-adoptive parent may have standing to seek custody and visitation of a child. The decision came at a time in which the social setting of the United States was calling for an acknowledgement of the parental rights of non-biological and non-adoptive parents. The Court of Appeals concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation, if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.
After the recognition of same-sex marriage in New York State, and the 2014 United State Supreme Court decision in Obergefell v. Hodges the New York Court of appeals recognized that the term “parent” as defined in New York State was outdated. Previously the court had relied on the case of Allison D. v. Virginia M. when determining that the term “parent” only applied to a person with a biological or adoptive relation to a child. The twenty-five-year-old decision was considered by the court, and it was determined that the definition of the term parent was unsustainable in today’s legal landscape.
The decision was reached on two separate cases. In the first case, the same sex couple jointly decided to have a child through artificial insemination of one of the parties. The parents raised the child together for two years before their relationship ended.
Similarly, in the second case, a same-sex couple came to an agreement to have a child through artificial insemination, after which the relationship ended. However, in this particular case, the biological parent had previously sought child support from the non-biological parent. The lower-level court granted the biological parent’s support petition, and used that in their determination that if the biological parent claimed the non-biological parent would have to pay child support, then they cannot later deny that they are a parent in a custody proceeding. In that decision, the court noted that without the support petition, the non-biological parent would not have the standing to seek custody or visitation.
The Court in looking at the two cases stated, “by fixing biology as the key to visitation rights, the rule of Allison D. has inflicted disproportionate hardship on the growing number of nontraditional families across the state.” Demographic changes have transformed the elusive concept of the “average American family,” and therefore the court gathered that the fundamental concept of “the best interest of the child“ is being affected by such changes. Consequently, the court concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.
Never look back, only forward.
For most people life does not end with a divorce. Rather, it is the beginning of a new life upon which you (hopefully) have gained added knowledge. Perhaps you have learned from past errors, mistakes in judgments, fears or mistrusts, which may have existed in your marriage.
This knowledge should lead to “insight” which can be used to build a firmer and more lasting relationship, or perhaps, even as an aid in making the choice that for you, no permanent relationship is the best course of action.
That choice, if it is made, is as valid as a choice made by another person to remarry.
Never hesitate to seek professional counseling.
Most people do not understand the vital role counseling can play in copying with a difficult marital situation. The seeking of counseling is not a sign of weakness. Quite the contrary, it is a sign of strength.
Counseling does not necessarily mean marriage counseling, not necessarily divorce counseling, but counseling designed to assist you in the handling, coping and adjusting to difficult problems, marital or otherwise. If you had a toothache, you would not hesitate to see a dentist.
Never allow the statements of your spouse or the advice of your family, friend and other acquaintances who have done through matrimonial litigation to undermine your confidence or your relationship with your attorney.
Frequently, one spouse will advise his mate that his Lawyer is “terrific”, “knows all the judges”, “has friends in court”. And otherwise, has a more adept lawyer than you. Remember, these threats are designed to undermine your confidence in your relationship with your attorney. If they succeed, then your ability to work with your attorney is ruined. Similarly, you may have acquaintances who find out about your matrimonial problems and discuss the facts of their case with you. You may well wonder why the approach or theory which your friends so rightly feel was good for them IS. Not being used in your care. You must remember, no two matrimonial cases are alike. Each one IS different; each one has its strengths and weaknesses.
The best way to handle your fears about litigation IS by open and frank discussions with me. I welcome it. In fact, I insist upon it so that you may be fully advised as to the philosophy of your matter, as the reasons why certain choices are being made in your case and other rejected.
Common misconceptions about divorce or separation
Question: True or False?
IF you are separated by written agreement (a so-called legal separation) or by a Court awarding you a judicial separation, whether contested or not, you are free to commit adultery.
Your spouse can divorce you if he or she can prove that you have committed one act of adultery while you are legally separated, regardless of whether you are separated pursuant to a written agreement or by Court order. A separation does not change your marital status. Only when you are divorced, are you free, in a sense, to engage in an adulterous relationship.
Question: True or False?
After a separation agreement is signed, you must wait one (1) year for a divroce and then is it automatic?
A separation agreement does not waive any rights that you may have to obtain a divorce based upon cruel and inhuman treatment or adultery. It is only when you seek a divorce based upon an existing separation agreement that the law requires you wait for one year after the agreement is signed, and in that event, the divorce is never automatic.
Whoever seeks a divorce pursuant to a separation agreement or judicial separation must establish that he or she has substantially complied with the terms of the separation. The only defense to a judicial separation is the fact that the party seeking the divorce, pursuant to the judicial separation, has not substantially complied with the terms of the separation. There are two defenses, however, to a divorce action founded upon a separation agreement. The second defense is that the parties resumed cohabitation as husband and wife after a separation agreement. Remember, one isolated act or a series of infrequent acts of sexual relations between husband and wife after a separation agreement is signed does not void the separation agreement. However, a resumption of the marital relationship would void the separation agreement, making it useless as a foundation for a subsequent divorce action.
Question: True or False?
A parent who is guilty of adultery IS in greater likelihood of losing custody of his/her children.
The mere commission of adultery also IS not sufficient grounds to deprive a parent of the custody of a child or children. It is, however, one factor to be considered among many which bear upon the welfare of the child or children.
Question: True or False?
A husband or wife can refuse to “sign” for a New York divorce.
This question is nonsense. In the State of New York, neither party “signs” for a divorce. The divorce is granted by a Judge provided that party seeking the divorce proves to the Judge’s satisfaction that he or she has sufficient grounds under the laws of the State of New York to be entitled to a divorce. Note, that there a number of foreign countries in which a divorce by “consent” call be obtained. In other cases, “signing” for a divorce is applicable.
Never be afraid to tell me the truth, no matter how bad you think it might be.
Are you engaging in an extramarital sexual relationship? Do you earn money off the books? These and similar important matters must be discussed openly, honestly and frankly. Precautionary measures must be taken to avoid adverse results during trial.
Remember, preparation IS the key to a successful result in a divorce. Surprises, during trial, is difficult to combat, and is frequently disastrous. Don’t be shy. There is nothing, and I mean nothing, that you could tell me that I have no already heard and then some. Commit to writing all your thoughts and questions. When I review your file, we can further discuss your questions.
Never believe the threats of your spouse.
They are designed to frighten you into accepting less of a financial settlement and otherwise make you fearful of going to Court. (As a matter of fact, the vast majority of divorce actions are settles, many on the day of trial, through conference with the Presiding Judge.)
Some threats range from leaving the state to preventing visitation with children. Most are idle. Some are real. All of them have been tried before. The law has provisions for all of them.
Never use children as pawns or go-betweens
Family Court IS full of children from so-called broken homes charged with juvenile offenses ranging from using drugs to burglary and truancy. A child in a broken home situation needs to have the security and the knowledge that both parents love them. For a greater explanation of the thoughts that go on in a child’s mind, I suggest you read, The Boys and Girls Book About Divorce, by Dr. Richard Gardner.
Keep in mind that the “custodial or residential parent” should encourage visitation between the non-custodial and non-residential parents and the child or children.
Under no circumstances, should either parent discuss or expose the children to financial problems which exist as a result of one spouse’s failure to pay adequate support.
Neither parent should, at any time, speak ill of the other parent in the presence of their child or children or permit anyone else to do so.
There are a number of other excellent books which are designed to assist the respective parents in copying with the fears that children of all ages go through when their parents separate and divorce. I welcome any opportunity to discuss these issues with you or recommend action or supplemental reading material to you.
Keep and write a diary of each days expenses (save and organize all receipts).
You must know how much it costs you to live, whether a man or a woman, with children or not. Most marital actions are fought on a financial basis only. This information is vital. If you keep a diary with receipts stapled in it showing your costs, you will favorable impress the Court. You will establish that your requests for support or living expenses are accurate and not inflated. A separate guide is available to show you how to make “cost of living” computations.
Never discuss the facts of your case or the philosophy or theory of your case with your spouse, his or her relatives or family members, including close friends.
You never know where information leaks exist. These can be fatal to the successful outcome of a divorce action. Very frequently, one spouse will engage the other in a conversation on the telephone, discussing the facts and circumstances of the marriage. In an effort to be conciliatory, you may make such statements as, “I know, it was all my fault.” Unbeknownst to you, recordings of these conversations are being made by your spouse. In court, one might think that such tape recordings are not allowed and cannot be heard as evidence. As a matter of fact, such recordings are admissible; they are evidence; and generally, they are the most dramatic evidence that can be obtained. Never discuss any of the facts and circumstances of your case with anyone, especially on the telephone. Should you feel that it may be advisable in your case for you to use tape recordings, I will be happy to discuss this with you.