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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: RECENT DECISIONS

Constitutional Issues

A petitioner-inmate sought a name change, stating that she identified as a female and her male name subjected her to harassment and discrimination. The judge presiding on her most recent prosecution and the Department of Corrections objected, claiming that permitting the name change would constrain efforts by victims of past crimes from ascertaining her future whereabouts. The DOC’s deputy counsel noted one of the petitioner’s victims had an Order of Protection until 2035, which was beyond the petitioner’s eventual release. The court held in favor of the petitioner and granted the name change after finding no evidence of fraudulent intent, nor desire to misrepresent herself or impair the other’s rights.

Custody Modification

A father sought to modify a joint custody arrangement to sole custody based upon the mother’s alleged violations and refusal to adhere to the schedule. The mother cross-moved for sole custody as well. After a fact-finding hearing, the Family Court determined the mother had coached the child to make sexual allegations against the father and repeatedly prevented the father from exercising his scheduled parenting time. The Appellate Division held that the Family Court correctly determined that these facts gave rise to a change of circumstances and awarded sole legal and physical custody to the father, with supervised parenting time to the mother.

Modification-Custody

The Appellate Division ruled that the Family Court had erred in dismissing a father’s petition to modify an existing consent order granting joint legal custody of a child to the maternal grandparents and mother with visitation to the father. Where a previous finding of “extraordinary circumstances” has not been made, a parent seeking to regain custody of his/her child does not have to prove a change in circumstance as a threshold matter. Although extraordinary circumstances existed in this case, the matter still needed to be remitted for a hearing to determine best interests of the child.

Grandparents

A Family Court order granting a paternal grandmother primary physical custody of the children was affirmed. The grandmother demonstrated the existence of extraordinary circumstances. The children’s parents were either unable or unwilling to provide them with basic personal hygiene, clean clothes, adequate medical or dental care or an appropriate place to sleep and they lacked insight into the children’s particular needs, including one child’s special needs.

Pre-Birth Agreement

A biological mother, the biological father, and the father’s husband all agreed to conceive and raise a child together in a tri-parent arrangement. Although the parties drafted agreements regarding such an arrangement, no final agreement was ever signed. Six months after the child was born, the relationship between the parties soured and the biological father and his husband filed a joint petition against the mother seeking legal custody and shared parenting time. At issue is whether the father’s husband had standing to seek custody and visitation. The court held that he had standing but not because of the presumption of legitimacy that attached through marriage, but rather because there was indisputable evidence that the three parties agreed that the child would be raised in a tri-parent arrangement.

Marital Assets

Prior to the marriage, the wife inherited IBM stock worth over one million dollars. After trial, the court determined that the IBM stock was the wife’s separate property and the husband appealed. The husband argued that the stock became marital because the parties filed joint tax returns reporting income derived from the IBM stock; the parties utilized dividends received from the stock to maintain the marital standard of living; and the stock was pledged as collateral to secure a loan to finance the purchase of several properties. The court disagreed and noted that the stock, including any reinvestment thereof, remained in accounts exclusively in the wife’s name throughout the marriage.

Partition

A former girlfriend commenced an action seeking the partition of residential property held jointly by her and her boyfriend. The boyfriend moved for summary judgment dismissing the complaint, claiming that because he conveyed the property to her in contemplation of marriage and the couple subsequently ended the engagement, then the 50% conveyance of the former girlfriend should be deeded back to him. The court noted that there was an issue of fact and therefore denied the boyfriend’s motion to dismiss the complaint. In so holding, the court noted that while the boyfriend claimed to have deeded a 50% interest in the property after the couple’s engagement, the girlfriend submitted proof that she sold her home in Florida, transferred employment to New York, took a pay cut to do so and became obligated as a mortgagor on the property.

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