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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: RECENT DECISIONS 3

Retirement Accounts

The Supreme Court had authority to modify a Judgment of Divorce that did not comply with the intent expressed in the Court’s underlying decision that each party was entitled to 50% of the retirement assets valued as the date of the commencement of the action and subject only to future gains and losses. The Court, however, did not have the authority to add any reference to a newly discovered variable supplemental pension plan, since that was based on new evidence. A modification concerning that issue was beyond the Court’s inherent authority to correct a mistake, defect or irregularity.

Jurisdiction

An Appellate Court held that the Family Court erred in dismissing a petition which alleged family offenses to occur not only in New York, but Pennsylvania and Jamaica as well, on the ground that the only incident alleged to have occurred in New York happened more than three years prior to the filing of the petition. The Appellate Division held that the Court had subject matter jurisdiction not limited by geography and the Court could have made findings of fact as to incidents that occurred outside its jurisdiction.

Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)

Twin daughters were born in New York in June 2015. They lived with both parties in New York until December 2015, when the parties and the children moved to Pennsylvania. In April 2016, the mother moved the children to another location in Pennsylvania and the father returned to New York. The father then commenced custody proceedings in New York in June 2016 and the mother commenced custody proceedings in Pennsylvania in August 2016. Both states had jurisdiction at the time the parties filed their petitions. Although New York Family Court had jurisdiction, it erred in declining to exercise jurisdiction in dismissing the father’s petition without following the procedures required by UCCJEA. The Family Court failed to allow the parties to participate in the communication between the Courts or to give them the opportunity to present facts and legal arguments before a decision on jurisdiction was made. It also failed to create a record of its communication with the Pennsylvania Court. The matter therefore was remanded to New York Family Court for further proceedings.

Maintenance

The Supreme Court should have awarded the defendant monthly maintenance for more than three years. The defendant was diagnosed with a psychiatric condition and the plaintiff should have been directed to pay the health insurance premiums of the defendant. The defendant’s maintenance award was extended until the earliest of the defendant’s remarriage or habitation, death of the parties, or until the defendant began to draw Social Security benefits or reaches the age that she would qualify for full Social Security.

Orders of Protection

The wife claimed that the husband violated the “Stay Away” Order of Protection against him. The husband and his private investigator contacted the wife’s attorney with what the wife alleged were harassing and coercive emails. The wife claimed this was a violation, since all communications were prohibited, including third party contact. The husband filed a motion for Summary Judgment dismissing the wife’s violation petition which was granted. The Court noted that communication with the wife’s attorney did not fall within the definition of “third parties” and the emails to counsel similarly were not a violation.

Equitable Estoppel

The Family Court properly applied the doctrine of Equitable Estoppel to preclude a petitioner from asserting his paternity claim with respect to the child. The parties in a paternity proceeding generally have a right to a genetic marker test/DNA test. No such test, however, shall be ordered where the Family Court makes a written finding that it is not in the best interests of the child on the basis of Equitable Estoppel. Estoppel may preclude an individual who claims to be the child’s biological father from asserting his paternity when he acquiesced in establishing a strong parent child bond between the child and another man. In this case, the father was made aware during the mother’s pregnancy that he was possibly the child’s biological father. He was further made aware following the child’s birth that the child was being raised as the son of another man. The hearing evidence established the child had always lived with the other man even during times when the mother did not, and the other man alone had supported the child financially and the two had established a strong father-son relationship. The father in this case did not commence a paternity proceeding until the child was eight years old. Under these circumstances, the Family Court ordered that it was in the child’s best interests to equitably estop petitioner from asserting his paternity claim.

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