In her quarterly column published in the New York State Bar Association's Family Law Review, Attorney Wendy B. Samuelson discusses several notable court decisions and legislative changes affecting New York matrimonial law. Below, we outline a portion of the topics addressed by Attorney Samuelson.
Enforcement of Child & Spousal Support: Domestic Relations Law § 245(1)
A person owed child support or spousal support (the "payee") may now bring a contempt proceeding as a primary means of enforcement against a former partner or parent who fails to uphold their financial obligations. Previously, this remedy was only available after a payee exhausted other options such as sequestration and income execution.
Deadline to File Objections: Odunbaku v. Odunbaku
After a father's petition to reduce his child support obligation was approved, the new order was sent directly to both parties and not their respective attorneys. While the mother wished to file an objection, she did not inform her lawyer for approximately one month after receiving the notification. The court rejected the mother's objection as it was submitted six days past the 35-day statutory deadline. The Court of Appeals reversed this decision, holding that once a party retains an attorney, time restraints related to a judicial decision do not begin until that party's attorney is served with an order.
Child Custody and Mental Health: In re Michael B.
The parties in this case had a child out of wedlock. When the child was 3, her mother was hospitalized after she became pregnant and stopped taking her psychiatric medication. The father received a temporary order of custody which remained in place for five years, during which time the mother played an active and caring role in the child's life. When she was 9, a custody hearing took place where a psychologist testified that awarding custody to the mother would be in the child's best emotional interest. However, the court awarded custody to the father.
An appellate court reversed the ruling, citing that too much weight was given to a number of factors including the mother's history of mental illness. In light of the psychologist's testimony and the fact that the mother had not relapsed in five years, speculation regarding her mental health should not have been a deciding factor in awarding custody.
Attorney Samuelson is a regular contributor and associate editor of the Family Law Review. Her column, "Recent Legislation, Decisions and Trends in Matrimonial Law," has been featured in the legal publication for more than a decade.
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