Thursday, October 12, 2017

Court Reconsiders the Law on Exclusive Occupancy of the Marital Residence

Interesting analysis by Justice Dollinger on the issue of "exclusive occupancy" in L.M.L. v H.T.N., from October 3, 2017



"In this court's view, the "strife/available relocation" test, previously used by New York's courts, is based on an analysis of the conflict between the parents as it impacts the parents. The courts applying the "strife" test focus on whether the parents should be able to cope with the strife and, if parents can (or should be able to), then exclusive use and possession is not required. Merely invoking the word "strife" to describe an admitted level of domestic abuse and inappropriate behavior - and not excluding either party from the residence - may allow the "strife" to simmer into a higher level of disruptive behavior if the couple continue to be in close proximity while sharing the residence. Whether the parents can tolerate the strife or "petty harassments" ignores the more significant factor: whether the children, often without mature understandings of adult interactions and looking to their parents for examples of mature behavior, can tolerate the same level of "strife."What some characterize as "petty harassments" - caustic verbal exchanges, vulgarity, put downs- may be tolerable between two unhappy and divorce-seeking adults, but it is corrosive when overheard by children and directed against a parent they love. The deleterious impact of easily perceived intra-family verbal assaults, foul language and other demeaning behavior on children requires more discerning criteria as the standard for granting exclusive use and possession. In this case, it is undisputed that the children have already endured - and may have learned - he demeaning and destructive conduct of their parents.[FN10] Regardless of the party at fault, the consequence - verbal violence directed against a parent and observed by the child - erodes the child's sense of home life. By denying this application and doing nothing - sending the parties back to the neutral corner so to speak in the home - sends the wrong message to the parents and the children and, in this court's view, sends message contrary to the direction of the state Legislature. Without court intervention, the parents may assume that their behavior is permissible to the court: the children may assume that such behavior is acceptable within a family. Neither conclusion is in the best interests of the family unit."

Thursday, August 31, 2017

Webinar: "Effective Courtroom Advocacy: Successful Oral Argument At the Trial and Appellate Levels"

AAML Webinar Registration is now available for "Effective Courtroom Advocacy: Successful Oral Argument At the Trial and Appellate Levels" presented by Steven D. Stark! The link is at

http://eventcallregistration.com/reg/index.jsp?cid=70783t11

Friday, August 25, 2017

Court issues interim decision on public kindergarten vs private Yeshiva


The parties disputed placement of their five year old daughter in a kindergarten in either a private Yeshiva or a public school. A hearing was held and father testified the child should continue her religious private school education, stating he would pay all costs. Mother stated, while she kept a Kosher household to appease her husband's parents, she disputed the family's level of Judaism, and argued for enrolling the child in a public school district near where she resided. The court stated its posture regarding a religious upbringing of a child was of non-interference. Yet, where, as here, it was determining which parent shall have educational decision-making regarding the child, not opining on the level of Judaism practiced or whether private or public school was in the child's best interests, it stated it recognized that any decision made herein may change after a full custody trial, if warranted. It indicated there was a possibility the child may attend one school this year and a different one next year. Thus, the main question was if the child will fall behind her classmates regarding her religious studies if she were to attend public school, and the court answered in the affirmative, concluding father should have educational decision making authority until further court order.

Appellate Court Affirms Limits to Benefit Claims for In Vitro Children

From the New York Law Journal: MacNeil v. Berryhill

In vitro fertilization using a deceased father as the donor doesn't make the children born later eligible for Social Security benefits, the U.S. Court of Appeals for the Second Circuit affirmed Thursday.
The panel of Judges John Walker Jr., Debra Ann Livingston, and Gerard Lynch in MacNeil v. Berryhill, 16-2189-cv, said U.S. District Judge Gary Sharpe of the Northern District of New York got it right when he agreed with an administrative law judge that New York State law precluded children born to a deceased parent—after that parent's death—from qualifying for Social Security Administration benefits.


Thursday, August 17, 2017

AAML Webinar On Courtroom Advocacy: September 20, 2017

I am producing a webinar on September 20, 2017 for the American Academy of Matrimonial Lawyers on "Effective Courtroom Advocacy." Great for newly admitted as well as experienced attorneys.


Tuesday, July 18, 2017