Divorce Lawyers Directory Blog

A recent case in New York highlights some interesting points about child custody cases involving international law. In Sanjuan v. Sanjuan, the courts granted the father's motion to dismiss a divorce and custody action in the state of New York, stating that the appropriate jurisdiction for the divorce action was the Philippines.

This case involves various aspects of international law, as well as the Uniform Child Custody Jurisdiction Act (UCCJA). Under the terms of the UCCJA, a child's "home state" is defined as the state (in this case, the country) where the child has legally resided for at least the past six months. The important term here is the word "legally." If the child were kidnapped or otherwise illegally removed from her home state, her new home state would not be recognized as a legal jurisdiction for a divorce action.

In this particular situation, the father had moved with his daughter to the Philippines approximately 13 months ago and proceeded to initiate a divorce action over there. Shortly thereafter, the wife tried to file for divorce in New York, but her original action was dismissed for failure to obtain proper jurisdiction. In other words, she failed to serve her husband properly with a summons in the Philippines.

Since there was no prior custody order and the mother knew of her child's whereabouts, the father left New York with his daughter legally. The mother then failed to commence a custody action within the required six month period (her original action was dismissed, and she did not bring another one until a year later). Once their daughter's residency had passed the six month mark without a valid filing for divorce and custody in New York, her legal residency became the Philippines.

As a result, the courts ruled that the mother's long-delayed action in New York should be dismissed in favor of the father's action previously filed in the Philippines. Generally, the courts do not favor competing actions seeking the same relief, and they will always try to find some statutory mandate to resolve the conflict. In this case, the UCCJA provided the proper legal guidelines.

This particular case was brought and decided in the New York courts. The Philippine court had nothing to do with this decision, although they will undoubtedly have the responsibility of ultimately deciding which parent gets legal custody over their child.

Last week, a five year international child custody battle was resolved when New Jersey resident David Goldman was reunited with his 9-year-old son Sean. Sean's mother, a native of Brazil, took him there in 2004. She never returned to the United States; instead, she stayed in Brazil, divorced Goldman, and remarried. Goldman has been trying to get his son back ever since.

Last year, after Sean's mother died in childbirth, Goldman sued in both American and Brazilian courts to obtain custody of his son. However, Sean's stepfather refused to give up custody. Unfortunately, it took a tremendous amount of pressure on the part of U.S. politicians for the Brazilian courts to finally reach the correct decision in the matter. On December 22, Brazil's chief justice ruled that Sean should be returned to his father.

While Sean's mother was alive, the decision of which parent would retain custodial rights to Sean was up for debate. Both parents would have been considered fit parents in the eyes of the court. Therefore, Sean's mother and father had an equally valid claim to custody of their child.

It is important to note that since Sean's relocation to Brazil occurred without the express permission of David Goldman, it could be considered abduction, as governed by the Hague Convention. As a result, Sean's mother was unfairly denying Goldman the right to spend meaningful time with his son, and she would need to prove in court that this relocation was in the best interests of the child.

However, once Sean's mother died, David Goldman legally had an indisputable right to retain custody of his child. Sean's stepfather could not legally challenge this issue. When only one biological parent is living, that parent is the only person under American law who can hold a valid custody claim to the child. In order to deny David Goldman custody, Sean's stepfather would have to prove that Goldman was an unfit parent. According to American law, he would have to either be:

• Adjudicated a criminal
  
• A child molester
  
• Proven to pose a real and serious danger to the child
  

Since David Goldman was not considered unfit by these standards, he should have been awarded custody of his son immediately following his ex-wife's death. The fact that the Brazilian courts took so long to release Sean to his biological father was an absolute travesty of justice. Fortunately, they eventually got it right.

When both parents are still alive, custody will generally be awarded based on what is in the best interests of the child. In the United States, child custody issues are gender neutral, and do not favor either the father or mother. The following questions will be used to determine who receives custody if both parents contest the issue:

• Who is the more nurturing parent?
  
• Who can provide the warmer, more loving home?
  
• Who can provide the best supervision?
  
• Who can provide the best education?
  
• Who will make the best decisions regarding the child's well-being?
  

If one parent is taken out of the picture, either by death or imprisonment, the remaining biological parent has priority over any other individuals, including grandparents, step-parents, aunts and uncles, or siblings, unless the other parent is proven to be unfit by the standards listed above.

New York is the only state in the country that still requires one spouse to prove fault to obtain a divorce when the other spouse refuses to agree to it. Currently, New York only grants a divorce for the following fault grounds:

• Cruelty
  
• Abandonment for one year or more
  
• Adultery
  
• Confinement to prison for three years or more
  

Judicial decisions have expanded abandonment to include "constructive abandonment," or the failure and refusal of one spouse to engage in sexual relations with the other for a period of one year or more, thus constituting an "abandonment" of marital obligations.

Recently, the appellate court heard a case that attempted to expand constructive abandonment to include "social abandonment" for one year or more. In Davis v. Davis, the wife claimed constructive abandonment as grounds for divorce. However, she did not accuse her husband of refusing to engage in sexual relations for one year or more, which is the traditional cause for this fault ground. Instead, she claimed that her husband refused to engage in social interaction by:

• Refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and her birthday
  
• Refusing to eat meals together, attend family functions, or accompany her to the movies, shopping, restaurants, and church services
  
• Leaving her at the hospital emergency room
  
• Generally ignoring her
  

A lower court had granted the husband's motion to dismiss the cause of action for constructive abandonment, affirming that he was not guilty of this action. The court asserted that constructive abandonment is limited to the refusal of sexual relations despite repeated requests to resume relations for one year or more. The court rejected the grounds of social abandonment, which the wife argued took place in this situation, asserting that it represents a claim of "irreconcilable differences" between spouses, which would in effect establish a "no-fault" divorce in New York.

The court argued that it was up to the legislature, not the courts, to establish a no-fault divorce. The appellate court agreed with the lower court's ruling, effectively ending the debate over whether social abandonment was an appropriate fault ground for divorce.

Currently, the only way to obtain a no-fault divorce in New York is for both spouses to sign a written separation agreement, file it with the courts, and live separate lives abiding by the terms of the agreement for one year or more. At this time, the terms of the separation agreement may be transferred to an official divorce agreement.

A child custody battle, whether as part of a divorce action or a separate action (generally after the divorce, where one of the parents is seeking a change of custody terms), can be one of the most contentious and unnerving forms of litigation you may ever experience.

The law does not favor either parent by gender, and each case is driven by the unique facts involved. The sole question to be answered in an initial custody action is, "What is in the best interests of the child?"

In an action to modify a prior custody ruling, there is an additional question to be answered: "What has changed since the prior custody order (or agreement) that would warrant a change of custody at this time?"

The courts will often seek the aid of unbiased health care and educational professionals to help them reach the best possible decision. Often, forensic psychiatrists or psychologists will be called on to conduct a thorough investigation and evaluation of each child and each parent involved in the custody litigation. This evaluation may include "significant others" such as grandparents or other caretakers who have contact with the children.

This investigation will attempt to determine:

• Who is the better parent?
  
• Which parent, if any, is attempting to exercise mind control over the children to the detriment of the other parent?
  
• Which parent may be interfering with the other's visitation rights?
  
• Any other factor that might have an impact on answering the question, "What is in the best interests of the child?"
  

The court will also appoint a Law Guardian, or attorney for the child, who is an independent lawyer charged with the responsibility of representing the child's interests, separate and apart from either parents' interest in the litigation. If the child is old enough and mature enough to express his own desires regarding which parent he wishes to live with, the Law Guardian will make that viewpoint known to the court. The Law Guardian will advocate for the child's wishes as long as he believes this viewpoint was not the result of parental brainwashing.

In most cases, if a child has reached the age of 13 or 14, his wishes will be factored into the court's final decision, provided he demonstrates appropriate levels of maturity for his age.

The cost of all professional fees, including the forensic evaluators, Law Guardian, and any other professionals appointed by the court, will be paid by the mother and father, proportional to their respective income and other financial conditions. These fees, in addition to each parent's own attorney's fees, can quickly escalate, resulting in an enormous financial cost to each party.

The litigation of a custody proceeding often also results in enormous emotional costs to both parents as well as the children involved.

For all of these reasons, it is in the best interests of everyone involved to try and negotiate a balanced settlement agreement crafted by the divorce attorneys for each parent so that the financial and emotional costs of litigation can be avoided entirely.

The state of New York has recently passed new legislation expanding the base income for mandatory child support
from $80,000 to $130,000. Any income above $130,000 may or may not be subject to the court awarding child support. This will be left entirely to the discretion of the court.

Prior to this new legislation, the courts have customarily awarded child support up to a discretionary base income of approximately $200,000. Any income above this level has generally been exempt from child support. However, with the expansion of the mandatory base income from $80,000 to $130,000, the discretionary cap is likely to rise as well. It is still uncertain how high it will go.

When the courts exercise discretion to go beyond the mandatory base, they consider lifestyle and standard of living factors. Sending children to private school, consistently taking extravagant vacations, and providing children with extracurricular activities such as music lessons, dance lessons, or summer camp will often influence the court's decision as to whether to award child support on a higher income than the mandatory base of $130,000.

While there is a basic formula for awarding child support, it is important for your divorce lawyer to be aware of these additional factors which may lead the court to use discretion in altering the ultimate dollar figure. Hiring an inexperienced divorce lawyer may result in a child support award that poses a serious financial burden on you and your family.

In most states, a legal separation can be achieved in one of two ways:

• Through a comprehensive agreement between the two parties
  
• By court decree
  

Whenever possible, you want to avoid the second option, since a court trial can be just as involved and expensive as a divorce trial. For the most part, the issues are the same, and once you're going through a trial, you might as well go for the divorce. It's the same work and the same cost, so you may as well finalize it and make it official.

In most cases, a legal separation is achieved through a negotiated settlement between both spouses, leading to a Separation Agreement, which is a formal contract that covers issues such as:

• Child custody
  
• Visitation
  
• Child support
  
• Spousal support
  
• Equitable distribution of marital property
  
• Life and health insurance
  
• A waiver of estates rights
  

Essentially, this agreement will cover any issue necessary to enable the couple to put their lives on separate tracks and move forward as individuals. Naturally, the agreement provides that the couple will live separate and apart, free from the authority and control of one another, as if each were single and unmarried.

It is a contract where the terms must be strictly followed. The only restriction for each party living under the terms this agreement is that they may not get re-married because they are not yet legally divorced. However, each person is free to date and even live with someone else, since all of the issues of the separation have already been dealt with. A court may not change the terms of a written separation agreement unless it determines that the terms of the original agreement are unconscionable.

Most states have laws that allow either party involved in the separation agreement to obtain an uncontested divorce after living separate and apart for a required period of time. At this time, the terms and provisions of the separation agreement will become the basis for the divorce agreement. The judge will simply have to sign the final divorce decree.

If you and your estranged spouse are able to work out a separation agreement amicably, it is a much better way to go about your divorce. You and your spouse will have negotiated all of the terms without the intervention of the court. This enables you to maintain control over the entire process.

It is easy to get caught up in the bitterness and animosity you feel for your estranged spouse during a divorce proceeding. Often, feelings of anger and betrayal may drive a person's motivation during such a difficult time. Unfortunately, in many cases, the person you end up hurting is not your spouse but your child.

When a divorcing couple has young children, it is important to make sure that their best interests are kept in mind when deciding issues of child custody. While feelings of bitterness and spite might motivate you to want to "stick it to your ex," in the long run, this behavior will only cause your children to suffer.

Children deserve to maintain positive, close relationships with both parents, provided neither parent is abusive or negligent in any way. To attempt to deny your ex his or her right to spend meaningful time with your children is unconscionable.

Clearly, child custody may be one of the most contentious issues you will have to deal with in your divorce. For most divorcing couples, both parents will want to spend as much time as possible with the children. Frequently, scheduling issues make custody arrangements extremely complicated. However, it is important to keep a level head during this difficult process and always remember that your priority when deciding custody should be to make the transition to divorced life as smooth as possible for your children.

A good divorce attorney will always try to help remove any animosity from this discussion and guide you and your estranged spouse through the custody process in a way that works to keep the best interests of your children at heart. If your divorce attorney fails to do this, you are most likely working with the wrong lawyer, because in the end, it is in your best interests to always put what is best for your children first.