December 6, 2023   A court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. A plenary action is necessary to reform a stipulation.   In Anderson v Anderson, --- N.Y.S.3d ----, 2023 WL 8246131, 2023 N.Y. Slip Op. 06108 (2d Dept.,2023) in July 2002, the plaintiff commenced this action for divorce. On February 1, 2005, the parties entered into an oral stipulation of settlement in open court, which provided, inter alia, that the defendant was presently receiving disability benefits under his pension plan, b ..read more

  The New York Matrimonial Trial Handbook is a “how to” book. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action and custody case. The book deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination and cross-examination of the parties and expert witnesses at trial. It is available in hardcover, as well as Kindle and electronic editions. It is also available from&n ..read more

 December 14, 2022 Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors. In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support  award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes. Ev ..read more

Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act  or  acts  of  domestic  violence, as described in subdivision  one  of  section four hundred    fifty-nine-a of the social services law, against the other party and the nature, ex ..read more

January 1, 2020 The October 2019 update to my 9 volume treatise, Law and The Family New York, 2d has been released and is available on the Thomson Reuters website bookstore.                         ​​​Law and the Family York Forms, my 5 volume legal form set, has been released in a softcover edition, and is now titled Law and the Family New York Forms, 2019 Edition. It is available on the Thomson Reuters website bookstore. The New York Matrimonial Trial Handbook is av ..read more

Appellate Division, Second Department Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)             Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the tri ..read more

Recent Legislation Laws of 2019, Ch 335, enacted and effective October 3, 2019 amended Family Court Act §§828 and 842, Family Court Act § 412(10), Domestic Relations Law § 236 [B][5-a] [b][5] and Domestic Relations Law § 236[B](6][b][4]                Family Court Act §§828 and 842  were amended to authorize Family Court, when issuing a temporary order of protection to issue  an  order directing  the parties to appear within seven business days of the issuance of the order in the family court, in the ..read more

 November 24, 2021 Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state In Matter of Phillip D.S. --- N.Y.S.3d ----, 2021 WL 5364714, 2021 N.Y. Slip Op. 06460 (1st Dept.,2021) the Appellate Division held that Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state (see Opportune N. v. Clarence N., 110 A.D.3d 430, 430–431, 972 N.Y.S.2d 245 [1st Dept. 2013]; Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246, 9 ..read more

Recent Legislation                         Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that                There  is  a rebuttable presumption that it is not in the best interests of the child to   be  placed  in  the custody of or have unsupervised visits with a person who has been convicted of a felony sex&nbs ..read more

 September 16, 2021     Appellate Division, First Department   Disposition of prior petition to terminate mother parental rights which was favorable to the biological mother, did not preclude the findings of extraordinary circumstances in later kinship guardianship proceeding.             In Matter of Guardianship of Nicolas Jude B.,  195 A.D.3d 402, 150 N.Y.S.3d 58 (1st Dept.,2021) ,in 2008, the biological mother was found to have neglected the child. The child was subsequently placed in the care of the foster mo ..read more