The Supreme Court case of Troxel v. Granville, decided in 2000, has had an important influence on New York law surrounding grandparents’ rights (and the rights of non-parent relatives like aunts, uncles, and stepparents).

In Troxel, the Court struck down a Washington state law that gave visitation rights to non-parent relatives even when parents objected to non-parent relatives having contact with their children. The Court reasoned that Courts should presume that a “fit” parent acts in the best interest of his or her child. Indeed, parents have a constitutional right to rear their children as they see suitable, and inclusive of this right is the ability to refuse to associate with any particular party. Thus, any law that sought to override the “special weight” assigned to a parent’s decision was unconstitutional.

However, the Court did set a limit on parental rights. The deference afforded to a parent can be overcome by a compelling government interest supported by facts. Therein, in the event of government intervention into a family, it may be possible for grandparents or other non-parent relatives to gain visitation or custody rights.

If you and your spouse decide to separate, but not yet divorce, then it will be advantageous to create a separation agreement. A separation agreement, in the State of New York, is a detailed contract that establishes how issues of finance, division of assets, visitation and other marital circumstances will be treated while you and your spouse live apart yet are still legally married. The contact is enforceable by the courts in the event of non-compliance, and it will also provide the baseline for a divorce agreement should that situation arise.

After a divorce settlement has been reached, including details about child care and visitation, disputes may arise if a former spouse seeks to move for work or quality of life reasons. In all instances, a desire to relocate must first be approved by Family Court.

In determining whether or not to allow a parent to relocate, the Court primarily concerns itself with the well-being of the child.

The New York Court of Appeals, in Tropea v. Tropea, noted that each relocation request must be considered individually, taking into account all of the relevant facts and circumstances to decide what outcome is most likely to serve the best interests of the child. This made clear that while the rights of the parents are significant factors that must be considered, the child's rights and needs must be given the greatest weight.

The Court’s assessment of how relocation will affect the child takes into account questions like: strength of the relationship and attachment between the child and the non-custodial parent, ability for visitation to be maintained, impact on a child’s education and community ties, and potential effect on quality of life. If it is shown that a relocation will not adversely affect the child, a relocation request is more likely to be granted.

A divorce may be settled… yet fighting in court, or litigation, may continue if a former spouse wants reconsideration of the divorce judgment. Three types of post-divorce litigation are appealing a divorce judgment, appealing the marital settlement agreement, and modifying the divorce decree.

Appealing a divorce judgment in New York is not very common and very difficult to successfully carry out. A divorce judgment may be successfully appealed when it is shown that the judge in charge of the divorce settlement misapplied the law when making the final decision. This is different than contesting a fact. Rather, it must be shown that the judge reached an incorrect decision because he or she misapplied legal procedure or reasoning.

In New York, there are seven grounds, or actions, for divorce. This means that in order for a divorce to be procured, one partner must maintain at least one of the following reasons:

1. The relationship between spouses has broken down irretrievably for a period of at least six months. A divorce will only be granted on these grounds if there has been prior, equitable settlement of economic and child related issues, including financial support, division of assets and payments.
2. Cruel and inhuman treatment causing physical or mental damage making cohabitation dangerous or unsuitable.
3. Abandonment for at least one year.
4. Imprisonment for at least three consecutive years during the marriage.
5. Adultery, which is defined as any voluntary act of sexual intercourse.
6. Separation according to decree or judgment for one or more years.
7. Separation according to agreement of separation for one or more years.

An uncontested divorce occurs when two conditions are met. First, when there are no disagreements between you and your spouse over divorce related issues, including financial and child custody arrangements. Second, when either both you and your spouse agree to divorce, or when your spouse does not appear in divorce proceedings. In other words, an uncontested divorce occurs when all issues related to division of assets, property, liabilities, payments, etc. are settled, and also when either both parties agree to the settlement, or when one party does not oppose the divorce.

How to File for an Uncontested Divorce in the State of New York?

New York law requires a judge to divide property between two divorcing spouses as fairly as possible. The division of property is governed by the Equitable Distribution Law, which recognizes that marriage is an economic as well as a social partnership. The Law does not require the court to divide the assets 50-50, instead the court considers a variety of factors in determining the most fair distribution of assets.

Custody refers to the legal right to care for a child. A New York court may make custody determinations if a child has resided in the state for a minimum of six months. There are two types of custody that a New York court can assign: legal custody and residential custody. Legal custody is the right and responsibility to make decisions for a child. Residential custody is where a child will live. The court may make decisions about the custody of a child until the child is 18 years old. The court makes all custody decisions based on what it believes is in the best interest of the child, and does not favor one parent over the other on the basis of gender.  The custody decisions may be made either by a judge or referee at trial, or in an agreement reached by both parents through the voluntary mediation process.

Maintenance, sometimes called alimony or spousal support, is court- ordered payments from one former spouse to the other following the divorce. In New York, spousal maintenance is usually ordered for a limited time. Temporary spousal maintenance may be ordered during the divorce proceedings, before the case is finalized. 

The court determines maintenance by looking at both party’s incomes separately. If both parties make less than $524,000, no additional factors are considered. The party who earns a higher income is the payor, and the party who receives the maintenance is the payee. The court uses a mathematical formula to determine the amount of maintenance owed; the maintenance calculator utilized by all New York courts can be found at http://www.nycourts.gov/divorce/calculator.pdf.
Here are some examples of maintenance orders when both parties make less than $524,000: