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Rinandlo's Notes
Note from webmaster:  No surprises here. All decisions are consistent with getting more money from divorcing couples and building the people and power of the organizations asked to do the evaluation.

What is amazing is that there is not a majority of people on the commission without a vested interest in the "divorce business" and money tree created by it. The conflicts of interest are so obvious.  This should be pointed out to debunk this report in the press.

Counter intuitively "non-fault" we now know actually causes more divorces and more legal battles and sets up the men for divorce when they have done nothing wrong.

Also all rulings are consistent with the philosophy "we the state (and judges who never even meet the children) know what is best for your children, not you the parents" and we will do whatever we want to add new laws and regulations to support or opinions in this area. This is complete arrogance and applying the worst case parents scenario to all parents.  This is truly bureaucracy run amuck!!  Anyone with any common sense who studies this issue will see that shared parenting, with equal time for both parents as the default presumption, is the only fair solution and most often (except in the case of unfit parents or mutual agreement of the parents) the only constitutional solution and also in the best interests of the children. Divorce courts are ruining relationship between separating parents, and damaging the relationship with one parent, by providing HUGE financial motivation and sole custody, which makes lawyers rich and ruins children's lives. This is a statistical FACT which is hidden by the industry to perpetuate the 40% rule (lawyers want 40% of your estate in their pockets before the divorce is over)!

Thursday, February 09, 2006
P Thumbs-down to shared parenting
P Thumb-up for no-fault divorce
P Thumbs-up for lower child support when there is joint physical custody
P Neither thumbs-up or thumbs down to changing child support in cases where
P Providing court appointed attorneys in Supreme Court as well as Family Court
there is sole physical custody
P Generally more paying of wife’s attorney fees
P Mandatory parenting classes for divorce
P Mandatory Alternative Dispute Resolution except whether there is domestic violence
P Mandatory CLE’s for attorneys practicing family law in the area of family law
P Establishing Time-lines based upon the perceived level of conflict.


(Note the pages in the PDF document do not match with the pages in report.
For instance, “Child Support In Joint Custody Arrangements” appears on page 67 of the report, but on 85 of the PDF file. Page 1 of report starts on Page 19 of PDF file, so basically add 19 to any page number of report to get correct PDF page.)






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.





“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.”




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 in the traditional mother-takes-all context is simply not addressed.





“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. 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.