SHARED
PARENTING
RINALDO’S NOTES: Very little
was said about shared parenting
other than almost flippantly
dismissing the idea with no
analysis. In an 88-page
report, this what follows
is all that was said on the
matter. At the hearing I attended
in Albany, it was almost the
sole issue of discussion.
Literally, the “thank you”
section at the beginning of
the report was more extensive.
And frankly, a 1rst year law
clerk could have written it
for $15.00.
QUOTE FROM PAGE iv of Executive
Summary, Page 10 of PDF file
(74 words): “• Following extended
consideration and debate,
the Commission concludes that
no presumptions regarding
the awarding of custody whatsoever
should be created by legislation,
case law or otherwise.
QUOTE FROM PAGE 19 OF REPORT,
PAGE 37 OF PDF DOCUMENT: (148
short words):
“Presumptions. The Commission
heard extensively about the
current law governing custody
decisions, including whether
any presumptions regarding
the awarding of custody should
exist. Under the precedent
set forth in the Court of
Appeals decision in Braiman
v Braiman24 and its progeny,
New York courts have determined
that where the parties have
engaged in a bitterly antagonistic
custody proceeding, joint
custody is inappropriate,
thus creating a de facto presumption
in favor of the granting of
custody to one parent. Following
extended consideration and
debate, the Commission concluded
that no presumptions whatsoever
should be created via legislation,
case law or otherwise. This
conclusion was reached in
the hope and expectation that
well-trained, competent judges
would evaluate each individual
case and each individual child’s
needs without prejudice. Further,
the conclusion was reached
that a presumption of either
joint or sole custody would
be inconsistent with the optimal
functioning of the judge.”
RINALDO’S NOTES: THIS IS THE
ENTIRETY OF THE SUBJECT BY
A 32-MEMBER PANEL GIVEN OVER
A YEAR ON THE SUBJECT.
74 Words + 148 Words = 226
Words
On the bright side, it would
fit into the “Letters to the
Editor” section of most Metropolitan
newspapers. And think of the
savings in ink and paper by
keeping the report so short
on this subject.
Alternative Dispute Resolution
(ADR)
Substantial testimony, submissions
and other information gathered
by the commission indicate
that use of alternative dispute
resolution processes should
be utilized in matrimonial
matters, particularly those
involving children. The Commission
concludes that, when used
appropriately, ADR, particularly
mediation, is an effective
means of reducing the delay,
expense and trauma to children
often experienced during divorce.
RINALDO’S NOTES: After working
with the Probation Department
that does ADR I have seen
that if anything, they make
matters worse by stating how
reasonable it is for the mothers
to demand the kids, and want
high child support.
In fact, I have seen some
mothers actually get hurt
by buying some of the predictions
that they have laid on the
table. Usually, if the
case is going to settle—it
will. Some 30 year-old
with a sociology degree is
not going to make two attorneys
settle when they could not
on their own. I was
surprised to hear father’s
rights advocates in New York
put so much hope on this.
What this means will be yet
more bureaucracy, and more
people being hired by the
court system, which can’t
handle the caseload. As usual,
you can expect a domestic
violence, which, if you think
about it, makes no sense.
Even if there is domestic
violence, the court still
has an interest in preventing
settling. The bad news
is that ADR doesn’t usually
resolve otherwise irresolvable
situations. True, mothers
will back out of it by claiming
domestic violence, but there
is not much loss anyhow.
The truth of the matter is,
its WHERE THERE IS DOMESTIC
VIOLENCE, that you want the
case to settle to stop the
discomfort of the victim of
domestic violence, but logic
was never the forte of those
in the domestic violence industry.
If you see a trend here its
mandatory this, mandatory
that. Mandatory parenting
lessons. Mandatory ADR.
Mandatory paying for a forensic
expert.
Statewide Parent Education
and Awareness Program
The Commission recognizes
the successes of the State
Parent Education
Advisory Board to improve
the quality of court outcomes
involving children, raise
judicial awareness of the
benefits of parent education,
clarify judicial authority
to refer parents, and institutionalize
parent education around the
State. After consideration
of the substantial testimony
and material received on the
benefits of parent education
programs and the changes needed
to the existing system to
encourage attendance at these
programs, the Commission recommends
the following:
• that judicial officers should
be empowered to order parties,
where appropriate, to attend
a parent education program.
This decision must wholly
within the discretion of the
judge and will not have any
affect on the progress of
the litigation;
• that, in response to concerns
that parent education providers
lack the resources to continue
these efforts, the OCA develop
a program similar to those
already in existence in certain
judicial districts wherein
a court employee function
as the “administrator” for
the local programs, relieving
much of the administrative
burden on the local providers;
and
• that the OCA promulgate
rules of the Chief Administrator
defining all aspects of the
Parent Education Program,
its administration and processes.
RINALDO’S NOTES: Massachusetts
already has such a program.
I have not considered this
situation, but it is worthy
noting that after half a decade
of being involved with fathers’
rights, I have not heard one
father in Massachusetts say
something positive about this
program. It might be
a good thing, but if it is,
this has not been conveyed
to me. Given how this
commission hates fathers,
given how they embrace no-fault
divorce, do you want them
to teaching you how to be
a parent? Do parents
really learn when they are
forced to attend these things?
Reality is, this program in
Mass employs many who would
not be in a free market, by
a forced captive audience.
By the way, you have to pay
for it. And could the
section on mandatory parenting
classes really be as important
as shared parenting, so as
to warrant the same space?
CHILD SUPPORT
Child support in the traditional
mother-takes-all context is
simply not addressed.
CHILD SUPPORT
“Child Support in a Joint
Custody Arrangement. The Commission
heard
testimony from a number of
litigants who had equal or
close to equal parenting time
with their children. Those
parents expressed the unfairness
of having to pay child support
at an amount calculated pursuant
to the Child Support Standards
Act (the “CSSA”) without any
adjustment for the expenses
the payor spouse incurred
in connection with his or
her time with the children.
Under prevailing authority
in New York, even in the case
where each parent has
equal time with the children
– the shared custody arrangement
- the spouse with the greater
income is deemed the “noncustodial
spouse” for the purpose of
paying child support under
the CSSA.58 The Commission
recognizes that the result
of applying the CSSA strictly
on the basis of income in
a shared custody situation
(whether the payor spouse
has joint access or nearly
joint access) can result in
a burdensome and unfair child
support award in some instances
and recommends that further
research and consideration
be given to the establishment
of a formula for child support
that allocates child support
between parents in a manner
that takes cognizance of the
amount of time spent by each
parent with the children and
the expenses incurred by each
parent for the children when
the children are in their
care.”
RINALDO’S NOTES: Finally,
the Matrimonial Commission
makes sense.
NO-FAULT DIVORCE
“No-Fault Divorce. The Commission
finds that New York’s fault-based
divorce system21 has a direct
impact on the manner in which,
and the speed with which,
matrimonial matters proceed.
Substantial evidence, derived
from the public hearings held
by the Commission and the
professional experience of
the Commission members, leads
us to conclude that fault
allegations and fault trials
add significantly to the cost,
delay and trauma of matrimonial
litigation and are, in many
cases, used by litigants to
achieve a tactical advantage
in matrimonial litigation.
The Commission urges the New
York State legislature to
enact an amendment to the
Domestic Relations Law providing
for no fault divorce.22 Although
the Commission does not endorse
any particular no- fault divorce
proposal, it recommends that
any such legislative change
provide that no final Judgment
of Divorce be entered until
all economic issues, including
equitable distribution, maintenance
and child support, as well
as custody are determined
and those determinations are
incorporated into the judgment,
unless the parties consent
in writing and good cause
is shown. By enacting a no-fault
statute, New York law would
be consistent with that of
virtually every other state
in allowing a marriage to
be dissolved without a lengthy
wait or requiring one party
to cast blame upon the other.23
FOOTNOTE 23: 23 A recent survey
of divorce statutes for the
fifty states, Puerto Rico,
the US Virgin Island and the
District of Columbia indicates
that 35 jurisdictions recognize
some form of Irreconcilable
Differences or Irretrievable
Breakdown of the marriage
as a basis of ending the marital
relationship, 6 jurisdictions
recognize Incompatibility
as a basis of ending marriages
and 11 jurisdictions permit
living separate and apart
without legal proceedings
or the finding of fault as
a basis for divorce. Only
New York requires the finding
of fault or the living apart
pursuant to a legal document
as the basis for a divorce.
RINALDO’S NOTES: New York
does NOT require the showing
of fault so long as you meet
the one year cool down period.
See number 6 of Domestic Relations
Law Sec. 170.
FOOTNOTE 21: “Dom. Rel. Law
§ 170 presently provides that
an action for divorce may
be maintained on any of the
following grounds:
1) Cruel and inhuman treatment
so that the conduct of the
defendant so endangers the
physical or mental well-being
of the plaintiff so as to
render it unsafe or improper
for the
plaintiff to cohabit with
the defendant,
2) The abandonment of the
plaintiff by the defendant
for a period of one or more
years,
3) The confinement of the
defendant in prison for a
period of 3 or more consecutive
years
after their marriage,
4) The commission of an act
of adultery,
5) The parties have lived
apart pursuant to a decree
or Judgment of Separation
for one or
more years after the granting
of such decree or judgment
and satisfactory proof has
been
submitted by the plaintiff
that plaintiff has substantially
performed all 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 and satisfactory
proof has been submitted by
the plaintiff that he or she
has substantially performed
all the terms and conditions
of such agreement. “
FOOTNOTE 22: “22 The Commission
recognizes the impact of fault-based
divorce on the length and
acrimony of divorce proceedings,
however, a minority of members
consider the issue of no-fault
divorce to be one of public
policy that exceeds the scope
of this Commission’s mandate
and concur in this recommendation
only to the extent of urging
the Legislature, as it considers
the various proposals with
respect to no-fault divorce,
to be mindful of the deleterious
impact of fault-based divorce
on matrimonial litigation
and to include in any legislative
change that may result the
requirements defined by the
majority position.
An additional minority of
members do not support the
Commission's majority position
with respect to this issue
in any regard, concluding
that adoption of a no-fault
divorce statute would not
be beneficial to many litigants,
especially victims of domestic
violence, and non-monied spouses
who, generally, enjoy certain
protections by the existence
of the grounds requirement.
RINALDO’S NOTES ON FOOTNOTE:
I would agree that as a general
principle, when TWO people
WANT to divorce, rubbing one
persons face in the ground
to show fault does seem rather
pointless. When
domestic violence is relevant
to some aspect of the divorce,
it may still be argued.
RINALDO’S NOTES ON NO-FAULT
GENERALLY: I will be writing
on this topic, and will post
my notes. General thoughts—divorce
is too easy to get, and a
cool down period is not a
bad idea. There is “true”
no-fault divorce already in
New York, in that you can
get divorced, truly without
showing fault—you have to
wait, that’s all. The larger
concern is dumping—where one
spouse dumps the other by
simply claiming the marriage
is not working, takes the
kids, and gets child support.
