New York State Pension Rights for Same Sex Couples

A man I personally admire, New York State Comptroller, Thomas DiNapoli,recently recognized, for pension purposes, a Canadian same-sex marriage. He decided that the marriage was valid even though New York State’s highest court, the Court of Appeals, recently held that same-sex marriages are not permissible under the New York state constitution. Mr. DiNapoli recognized the same-sex union between two state workers who got married in Canada.

Mr.DiNapoli’s decision was taken to court, and Justice Thomas J. McNamara in the case of Godrey v. Hevesi, 5896-06, agreed with him. Judge McNamara noted that New York has long recognized the legality of marriages performed in other states and countries, even if such marriages could not be performed in New York.

While proponents of same-sex marriages may view this decision as a victory, it raises as many questions as it settles. Since the Court of Appeals decided Hernandez v. Robles 7 NY3d 338 (2006), the rule in New York has been that same-sex marriages are not permissible.

Judge McNamara’s decision does not necessarily provide a loophole. The problem lay in difference between laws passed by a sister state and laws passed by a foreign county.

The starting point is the United States Constitution’s Full Faith and Credit Clause. This constitutional provision states that one state must give full faith and credit to a judicial ruling of another state. (There are some exceptions, but it is beyond this scope of this posting to get into them.) Similarly, there is a rule known as “comity”. Under comity, a state judge can enforce a foreign county decision if the requirements of due process are met. Unlike the Full Faith and Credit Clause, a court is not required to recognize a foreign nation’s actions.

Now, that brings us back to Judge McNamara’s decision. Two other judges have refused to recognize same-sex unions performed in Canada. In the cases of Funderburk v. New York State and Martinez v. Monroe Community College,two other trial judges decided contrary to Judge McNamara. The Appellate Divisions have not spoken on this issue. But, ultimately, this issue will have to be decided by the New York Court of Appeals. Frankly, I don’t think anyone knows which way the court will decide on this issue.

Equitable Estoppel And Paternity

In an earlier posting, I discussed a legal concept known as “equitable estoppel”. This is principal which allows a court to declare that a man is the legal father, even though is not the biological father.

Recently, Judge Richard Lawrence, Family Court, Nassau County was presented with such an issue. The case, Matter of KJP v. VB was reported in the September 24, 2007 issue of the New York Law Journal.

The mother brought an action for paternity. She further asked that there no be any genetic testing, but instead that the respondent be declared the father by equitable estoppel. She asserted that the respondent is the father, and the child has always known him to be his father. Although there is no father’s name on the birth certificate, the mother explained that she had stopped seeing the father prior to the birth, due to his violence against her. She claimed that the respondent knew about the child and that told informed him that he was the father when the child was two years old. The mother claimed that she never identified any other person as the father, and the child always considered the respondent to be his father.

The Respondent opposed the petition and demanded genetic testing. He only admitted to being the father of the child’s sister. He claims that the first time he learned that the mother was claiming that he was the father was when he was served with paternity papers. He claimed that the child calls him by his first name and that he saw the child only when visiting his daughter. The respondent stated that he never held himself out to be the father.

Judge Lawrence noted that the mother, seeking to enforce the doctrine of equitable estoppel has the burden of proof before the court. The moving party, in this case the mother, must set forth what is called a “prima facie” case. A prima facie showing is more than a mere allegation. In this instance, the law requires that the mother show that the child considers the respondent to be his father, and that the child could face some harm if the motion is denied.

Judge Lawrence noted that a hearing should be held to determine the credibility of the witnesses. Further, “the evidence should be construed from the child’s perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing includes the child’s interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect of testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. Importantly, the paramount concern in an equitable estoppel case is the best interests of the children.”

Faced with such conflicting stories from the parties, Judge Lawrence ordered that a hearing be held to decide whether or not to order genetic testing. “Ultimately, a court shall not order genetic testing in a paternity matter without first issuing a written finding that it is not in the best interests of the child on the basis of equitable estoppel.”

This case merely restates the position that a biological stranger could be found to be the legal father, if it is in the bests interests of the child. As more children are born out of wedlock, and couples co-habitat without being married, the doctrine of equitable estoppel will be applied with greater frequency.

Parental Alienation

Recently, Judge Richard Lawrence, Family Court, Nassau County, noted in Matter of FS-P v. AHR, published in the New York Law Journal on August 31, 2007, that “a court may suspend a non-custodial parent’s duty to provide child support after a finding that the custodial parent has willfully denied or interfered with visitation or has engaged in ‘parental alienation.’”

At issue in this case was whether the father could raise parental alienation as a defense before there was a support order. The father was seeking to invoke this defense to the mother’s request for an order of support. Judge Lawrence recognized that after an order is issued, the court can relieve the father of the responsibility if there is interference with child visitation. But, can the father raise it as a defense to prevent an order from being issued in the first place? In this instance, the Judge said it is a defense.

A couple of points: (1) If there is a support order in place, I’d strongly advise against stopping the payments if there is game playing on the visitation. As long as there is a court order, it must be obeyed. If there is game playing on the visitation, then the remedy is to go to court and ask to Family Court judge to suspend support.

(2) If there is are no orders of visitation or support, and there is game playing on visitation, please don’t get mad, don’t do something foolish. While you could try and rely on Judge Lawrence’s decision, the better option is just go to the Family Court and make out a petition for visitation.

(3) Parental alienation is a big topic and I’m leaving that for another post.

Divorce and Equitiable Distribution of Professional Degrees and Licenses

Doctors, lawyers, dentists and other professionals face unique challenges under New York Divorce law. Under the New York equitable distribution law, all property acquired during marriage is subject to division. The courts have interpreted that to mean that degrees, licenses and practices are subject to division.

In 1985 the Court of Appeals in New York, in the landmark case of O’Brien v. O’Brien, 66 N.Y.2d 576, held that the husband’s “medical license constitutes ‘marital property’ within the meaning of [ New York ] Domestic Relations Law.”

As the Court explained the facts:

Plaintiff and defendant married on April 3, 1971. At the time both were employed as teachers at the same private school. Defendant had a bachelor’s degree and a temporary teaching certificate but required 18 months of postgraduate classes at an approximate cost of $ 3,000, excluding living expenses, to obtain permanent certification in New York. She claimed, and the trial court found, that she had relinquished the opportunity to obtain permanent certification while plaintiff pursued his education. At the time of the marriage, plaintiff had completed only three and one-half years of college but shortly afterward he returned to school at night to earn his bachelor’s degree and to complete sufficient premedical courses to enter medical school. In September 1973 the parties moved to Guadalajara, Mexico, where plaintiff became a full-time medical student. While he pursued his studies defendant held several teaching and tutorial positions and contributed her earnings to their joint expenses. The parties returned to New York in December 1976 so that plaintiff could complete the last two semesters of medical school and internship training here. After they returned, defendant resumed her former teaching position and she remained in it at the time this action was commenced. Plaintiff was licensed to practice medicine in October 1980. He commenced this action for divorce two months later. At the time of trial, he was a resident in general surgery.

During the marriage both parties contributed to paying the living and educational expenses and they received additional help from both of their families. They disagreed on the amounts of their respective contributions but it is undisputed that in addition to performing household work and managing the family finances defendant was gainfully employed throughout the marriage, that she contributed all of her earnings to their living and educational expenses and that her financial contributions exceeded those of plaintiff. The trial court found that she had contributed 76% of the parties’ income exclusive of a $ 10,000 student loan obtained by defendant. Finding that plaintiff’s medical degree and license are marital property, the court received evidence of its value and ordered a distributive award to defendant.

Defendant presented expert testimony that the present value of plaintiff’s medical license was $ 472,000. Her expert testified that he arrived at this figure by comparing the average income of a college graduate and that of a general surgeon between 1985, when plaintiff’s residency would end, and 2012, when he would reach age 65. After considering Federal income taxes, an inflation rate of 10% and a real interest rate of 3% he capitalized the difference in average earnings and reduced the amount to present value. He also gave his opinion that the present value of defendant’s contribution to plaintiff’s medical education was $ 103,390. Plaintiff offered no expert testimony on the subject.

The Plaintiff argued that the license was “not property at all but represents a personal attainment in acquiring knowledge.” The New York Court of Appeals, did not accept this argument. The Court held that the New York equitable distribution law radically changed the concept of property. “[T]he New York Legislature deliberately went beyond traditional property concepts when it formulated the Equitable Distribution Law Instead, our statute recognizes that spouses have an equitable claim to things of value arising out of the marital relationship and classifies them as subject to distribution by focusing on the marital status of the parties at the time of acquisition. Those things acquired during marriage and subject to distribution have been classified as ‘marital property’ although, as one commentator has observed, they hardly fall within the traditional property concepts because there is no common-law property interest remotely resembling marital property.”

The practical effect of the O’Brien decision is that any degree or license earned during the marriage is subject to distribution. Therefore, an appraiser will have to be employed to determine the value of the degree or license, and then the court will determine how much money will flow from the spouse who earned the degree or license. For a professional, the value of the degree could be quite high.

Paternity by Estoppel

Under New York Family law, it is possible for a non-biological father to be declared the parent. This is called “equitable estoppel.” The purpose of this rule to is protect a child who has been raised to believe that a certain person is his father.

The rationale is that a child would be traumatized to discover that the person he considered his father is in fact not. In order to protect the child, the court can declare a person to be a father when his is not the biological father.

The factors that the court considers in deciding this issue are: (1) the child’s knowledge of the identity of the biological father; (2) whether the biological father’s identity is likely to be discovered; (3) whether the DNA testing  would have a traumatic affect upon the child; and (4) whether uncertainty as to paternity would impact the parent-child relationship.

As a practical example, let me describe a case which occurred a few years ago. Mr. X had married Mrs. X. During the course of the marriage, a child was born, Y. Unbeknownst to Mr. X and Y, the biological father was Mr. Z. Mr. Z was a social friend of the couple. Eventually, Mr. X found out about Mr. Z’s role, but continued to treat the child as his own.  After the child turned 10, Mr. Z decided to petition to court for paternity. Mr. and Mrs. X opposed the petition, claiming that such an order would devastate the child. The court agreed. It found that as the child has been raised to believe that Mr. X was his father, it would not be in the child’s best interests to learn otherwise.

This rule has a great impact in support cases. Typically, Ms. A seeks child support from Mr. B. He objects and demands a paternity test. If the child has been raised to believe that Mr. B. is his father, then the court could decline to order a test, and instead find parenthood by estoppel.

This is similar to what was reported in a recent Nassau County Family Court case.

In the matter of Davis v. White, reported in the September 14, 2007 New York Law Journal, Nassau Family Court Judge Conrad Singer, found to fatherhood by estoppels doctrine to deny a request for a paternity test. The Nassau county department of social services, on behalf of the mother, brought an action for paternity against Mr. White. Both the child’s law guardian and Mr. White asked for the court to conclude that the mother’s live-in boyfriend, with whom she has a child, is the father by estoppel.

The law guardian claimed that the child considers the boyfriend, Jesse, to be his father. The law guardian asserted that the child calls Jesse “daddy” and that they have lived together for the past year.

The judge denied the application and ordered the paternity testing of Mr. White. The court stated that the assertions of the law guardian alone did not establish that there was a parent-child relationship between Jesse and the child. The judge further stated that “the Court’s overriding concern when determining whether to invoke equitable estoppels is the best interest of the child.”

The point that troubled the judge, and in my opinion led to his decision, was that if he allowed Mr. White to walk away from his responsibilities, the child could suffer financial harm. The judge envisioned a situation where Jesse would leave the mother and the child would be without a means of support.

But, if the court granted Mr. White’s motion to declare that under the doctrine of equitable estoppel he was not the parent, doesn’t it follow that Jesse would be declared the father? No. Only Mr. White was before the court. If the court rendered a ruling in his favor, it would not affect Jesse, who was not a party to the action. Thus, of Judge Singer found Mr. White was not the parent, he would not, at least in the petition before, be able to find Jesse to be the parent.  Such a decision would leave the child would anyone the court could order child support from.

Now, if Jesse was also before the court, then perhaps the Judge would have arrived at a different decision.

Therefore, in order to ensure that the child did not become a public charge, the Judge decided that it was in the best interests of the child not to grant Mr. White’s motion.

Family Offenses

The New York Family Court is the prime dispenser of these orders within families; although, the criminal, county and supreme courts also have the authority to issue them.

To obtain a Family Court order of protection, the petitioner must allege that their spouse has engaged in a family offense. Family offenses are defined in section 812 of the New York Family Court act. A family offense is an act:

which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household

Reference must also be made to New York Penal Law section 240.26 which defines harassment:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Recently, Judge Conrad Singer, Family Court, Nassau County, rendered a decision in Lizbeth M v. Stephen M., where he was asked to determine what conduct constituted a family offense. The wife had obtained an order of protection against the husband and the husband obtained an order of protection against the wife. Both parties asked Judge Singer to dismiss the other’ss order of protection.

Both parties accused the other of using offensive and foul language. The wife claimed that the husband called her a “f***ing whi***e pig, bitch and f***ing c**” and then approached her in a manner leading her to think that he would hit her.

The husband claimed that the wife called him an “a**hole and loser” and would “give him the finger.”

The court found that the husband’s alleged conduct constituted a family offense but not the wife’s. But, why?

Judge Singer found that the husband’s alleged behavior “was meant to harass, annoy or alarm the wife and approaching her in a threatening manner was a threat to subject her to physical contact.” Further, the name calling, he found, fit into the statutory definition found in New York Penal Law section 240.26. On the other hand, he found that the wife’s alleged conduct did not arise to the level of a family offense.

At first blush, this result may seem contradictory. However, I believe that the Judge was concerned about the element of threat. This is shown by his refusal to find a family offense where the husband was also accused of “whispering unpleasant things to her, alleging that no one would believe her and his job was to make her life a living hell.” Judge Singer found that these statements were merely unpleasant and crude but “for it to be a family offense or meet the definition of a criminal act, statements must be more than that.”

These result appears to be consistent with my experience. The courts are not so much interested in whether people are being rude and impolite. The concern of the court involves the safety, whether mental or physical of the petitioner.

Child Visitation With Same-sex parents

A relatively new area showing up in New York family law is the parental rights of same sex couples. The general rule in New York is that only the biological parent has rights as a parent, and that a third party is a mere stranger.

There was a recent decision by Nassau Family Court Judge, Stacey D. Bennett, where a same sex partner was found to have the right to at least be heard by the court on the issue of custody. (The decision was published in the August 10, 2007 edition of the New York Law Journal, on page 29.)

The parties met, fell in love and moved in together. After several months, it was decided that Ms. L. would undergo artificial insemination. The parties agreed that if Ms. L became pregnant, Ms. H would assist in taking care of the child. It was undisputed that Ms. H took Ms. L to all her pre-natal visits and was present during the birth of the child. Ms. H even cut the umbilical cord. She assisted in changing and feeding the baby. Ms. L. testified that Ms. H did what a husband would do for a wife during the pregnancy.

After the birth of the child, Ms. L returned to work and Ms. H stayed at home to care for the child. The situation continued for several months until the relationship ended. Ms. L. then moved into a shelter but left her son with Ms H. It was agreed that Ms. H. would keep the child until Ms. L. found suitable housing. Under that agreement, Ms. H. brought the child to New York City, were Mr. L. was living several times for visits. During a visitation there was an argument over financial support. Ms. L. called the police and claimed that Ms. H. refused to return the child. ACS of New York City removed the child and he was ultimately placed in foster care.

Judge Bennett stated the standard law, that a third person does not have rights superior to the parents. The underlying rationale for this rule is that there is a presumption that it is in the child’s best interests to be raised by at least one parent unless the parents are determined to be unfit. She went on to note that the Court of Appeals has found an exception to this rule when it is in the best interests of the child and extraordinary circumstances exist. In determining whether extraordinary circumstances exist, the court should consider the length of time the child has lived with the non-parent, the quality of the relationship and the length of time the biological parent has allowed such custody to continue without trying to assume the parental role.

Judge Bennett then went on to explain that Ms. L. treated Ms H. as a parent to the child. Therefore, she decided that Ms. H. can at least make the argument for custody.

While the question of whether Ms. H. can get custody remains open, this case is interesting in that the court allowed for that possibility. This decision does not merely have implications for same-sex couples, but also for grandparents seeking to obtain custody of their grandchild. This is still an evolving area of the law. The courts have been cautiously pushing on the notation of what a “parent” is, while the legislature has been silent on the issue. Ultimately, the courts cannot carve out an exception and allow third persons the same rights as biological parents. Rather, that will be for the legislature to decide. In the meantime, we will continue to see these small exceptions created using the extraordinary circumstance rule.

Equitiable Distribution in a Divorce Where There is Abandonment by spouse

Justice Darrell Gavrin, of Queens County, New York, in the divorce of  Pritchett v. Pritchett, found that where a husband abandoned his wife for a significant period of time, he forfeited some of his property rights to her.

The parties were married in 1971 and there were three children of the marriage. The last was born in 1992. The husband left the martial home in 1996, without providing any contact informationÂ

The wife sought exclusive possession of the marital home. It was purchased n 1984, and was located in Rosedale, Queens. Although purchased for $85,000, they refinanced it in 1994 for $107,000.00. The wife claimed that $30,000 of the refinanced sum was taken by the husband without her permission or authority to pay his personal debts.

At the time he abandoned the marital home, he took an additional $20,000 in marital assets. And although employed with the New York City transit authority, he ceased making any child support payments or contributing to the mortgage. The wife was forced to solely support and provide for her household.

Ten years later he reappeared at the marital home. The wife testified that she received a telephone call from one of the children saying “Ma, there is someone at the door, I think it is our father.” The wife rushed home and found that the husband had dropped off a list of some addresses.

The court awarded the house to the wife. The noted that the husband had not contributed any money toward child support in ten years. “[T]he husband’s lack of contribution of any monies for maintenance or child support from March 1996 to the present time, is factor which warrants consideration by this court in determining equitable distribution of the marital residence.”

Additionally, the court considered the other expenses the wife incurred to care for the child and pay the mortgage. After considering these factors, the court found the husband’s share of the expenses that the wife shouldered exceeded any interest he would have from the house. As a result, Justice Garvin, awarded the house to the wife.