LIberty Hall Family PLLC Richard Nunez Family Law Practice Lagrangeville NY

Richard J Nunez, Esq of Liberty Hall Family, PLLC Handles All Areas of Family Law from Lagrangeville NY

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Millbrook NY 12545

Guidelines from Case Law

Warning: Each case is very different. A case is determined by a mixture of the persons involved, the economic and historical factors of that case, and the application of changing law. The cases and opinions shown here demonstrate commonly or generally acceptable rules of law. They may or may not apply to a particular case or to your case. They should be read as no more than a guide to someone as to what standards in the law need to be met in a case, or as to what should or should not be done if contemplating a court action.


Cruel & Inhuman Treatment
Del Gaudio 2008

In New York State, a party may maintain an action for divorce on the ground of cruel and inhuman treatment where the conduct of the defendant so endangers the physical or mental well being of the plaintiff as to render it unsafe or improper for the plaintiff to cohabit with the defendant. See DRL §170 (1). A party seeking a divorce on this ground "must show serious misconduct, and not mere incompatibility," Brady v. Brady, 64 N.Y.2d 339, 343 (1985), that is, "a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper," Id.; see Hessen v. Hessen, 33 N.Y.2d 406, 410 (1974) ("serious misconduct [must] be distinguished from trivial"); Palin v. Palin, 213 A.D.2d 707 (2d Dept. 1995) (while defendant's conduct may have made cohabitation unpleasant, plaintiff failed to prove that it rendered it unsafe or improper for her to cohabit with defendant). Plaintiff need not establish actual physical injury at the hands of defendant or a specific number of instances of physical abuse. Rather, a pattern of conduct which includes verbal abuse and physical harassment is sufficient. Bulger v. Bulger, 88 A.D.2d 895 (2d Dept. 1982) (plaintiff's testimony that defendant verbally abused her, in public and in private, and habitually engaged in violent temper tantrums directed at her, which frightened her and caused her to seek psychiatric treatment, sufficient to make out cause of action on cruelty grounds).

To determine whether the proof adduced meets this standard, the Court may consider various factors, such as the length of the marriage, the age and health of the parties, and the severity of the allegedly offensive conduct. "[W]hen the marriage is one of long duration, a high degree of proof of cruel and inhuman treatment is required." Palin v. Palin, supra at 707, citing Brady v. Brady, supra; Hessen v. Hessen, supra at 411 (higher degree of cruelty is required to dissolve a marriage of long standing, as "[a]n appearance of misconduct, which in a matured marriage might fail to justify a finding of substantial misconduct, but only of transient discord, may in a newer marriage justify or even compel an inference of substantial misconduct"). Cf. Brady v. Brady, 64 N.Y.2d 339, 345 (1985) ("[t]he existence of a long-term marriage does not . . . serve as an absolute bar to the granting of a divorce for cruel and inhuman treatment, and even in such a marriage 'substantial misconduct' might consist of one violent episode such as a severe beating").

Long Term Divorce Standards
Singh v. Singh 

It is plaintiff's burden to prove that the conduct of his wife so endangered his physical or mental well being as to render it unsafe or improper for him to continue cohabitating with her. See Domestic Relations Law Section 170 (1). Brady v. Brady, 64 N.Y.2d 339.
Whereas herein the marriage is one of long duration, (approximately 30 years), the Courts require a high degree of proof of cruel and inhuman treatment. Moreover, the conduct which the plaintiff complains of must be viewed in the context of the entire marriage including its duration. See Bradley v. Bradley, 298 A.D.2d 485 (2nd Dept. 2002).
To establish this high degree of proof, plaintiff must show that the conduct so endangers his physical or mental well being as to render it unsafe or improper for the plaintiff to cohabit with the defendant. See Davey v. Davey, 293 A.D.2nd 444,(2nd Dept. 2002).

Custody & visitation

Zafran v. Zafran
830 N.Y.S.2d 8

"Visitation is a joint right of the noncustodial parent and the child (Weiss v. Weiss, 52 NY2d 170, 175). The best interests of a child lies in his being nurtured and guided by both natural parents (Daghir v. Daghir, 82 AD2d 191, 193, affd 56 NY2d 938). In order for the noncustodial parent to develop a meaningful, nurturing relationship with her child, visitation must be frequent and regular (Daghir v. Daghir, supra, p.193; Weiss v. Weiss, supra, p.175). Absent extraordinary circumstances, where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges (Matter of Schack v. Schack, 98 AD2d 802; Quinn v. Quinn, 87 AD2d 643; Strahl v. Strahl, 66 AD2d 571, 574, affd. 49 NY2d 1036)."


Stanton v. Kelley
859 N.Y.S.2d 907

The Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income (FCA §413[1][b][5][i]-[vi]) of each parent less certain statutory deductions (FCA §413[1][b][5][vii][A]-[H]), the net amounts of which are then added together to arrive at the parties' "combined parental income" (FCA §413[1][b][4]). A party's income generally consists of his/her gross income "as should have been or should be reported in the most recent federal tax return" (FCA §413[1][b][5][I]), and may be calculated based upon the party's most recent pay stubs (see Fuller v. Fuller, 11 AD3d 775, 783 NYS2d 671). A court is not bound by the income reported in an individual's income tax return (see Askew v. Askew, 268 AD2d 635, 700 NYS2d 594; Matter of Liebman v. Liebman, 229 AD2d 778, 645 NYS2d 581; Matter of Smith v. Smith, 197 AD2d 830, 602 NYS2d 963), and has considerable discretion to use other resources available to a parent (FCA §413[1][b][5][iv]) in determining a child support award (Burtchaell v. Burtchaell, 42 AD3d 783, 840 NYS2d 449) including "money, goods or services provided by friends and relatives" (FCA §413[1][b]5][iv][D]; see also Collins v. Collins, 241 AD2d 725, 659 NYS2d 955; Perry v. Pica, 22 AD3d 903, 802 NYS2d 772). The CSSA requires downward adjustments of each party's income for certain items of expense and income (FCA §413[1][b][5][vii][A]-[H]), such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support "actually paid pursuant to a court order . . . on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action" (FCA §413[1][b][5][vii][D]).

Following these adjustments, the parties' respective incomes are added together to arrive at the "combined parental income" (FCA §413[1][b][4] and [5]) upon which is calculated the "basic child support obligation" (FCA§413[1][b][1] and [1][f]), consisting not only of child support but also child care expenses incurred by the custodial parent (FCA §413[1][c][4] and [6]), apportionment of "future reasonable health care expenses of the child not covered by insurance" (FCA §413[1][c][5]), and under appropriate circumstances educational expenses "in the best interests of the child . . . as justice requires" (FCA §413[1][c][7]). The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties (FCA §413[1][b][3]), the result of which is then "prorated in the same proportion as each parent's income is to the combined parental income" (FCA §413[1][c][1]-[3]) to arrive at the non-custodial parent's child support obligation. Each parent's pro rata share of the combined parental income is also used to apportion "each parent's share of future reasonable health care expenses of the child(ren) not covered by insurance" (FCA §413[1][c][5]), as well as child care expenses. "[W]here the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment" (FCA §413[1][c][4]), each parent's pro rata share of those expenses must be "separately stated and added to the" (id.) child support amount. If the custodial parent "is seeking work and incurs child care expenses as a result thereof" (FCA §413[1][c][6]), "[t]he non-custodial parent's share . . . shall be separately stated and paid in a manner determined by the court" (id.).

Property distribution

M.A. v. K.A.
238 N.Y.L.J. 115

Under Domestic Relations Law Sections 236[B][5][c], "marital assets should be " . . . distributed equitably between the parties, considering the circumstances of the case and of the respective parties." In making findings with respect to the distribution of marital assets, the court must consider the thirteen factors set forth in DRL Section 236 [B][5][c].

Cheryl W. v. Harold W.
240 N.Y.L.J. 47

Separate Marital Property is defined by Domestic Relations Law §236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before execution of a separate agreement or the commencement of a matrimonial action regardless of the form in which title is held . . . . Marital property shall not include separate property".

Separate property is defined by DRL236(B)(1)(d) as:

"(1) property acquired before marriage, or property acquired by bequest, demise or descent, a gift from a party other than the spouse" . . . .

(3) property acquired in exchange for or the increase in value of separate property, except to the extent such appreciation is due to the contributions or efforts of the other spouse".

DRL §236(B)(5)(b) also provides that:

"Separate property shall remain such".

The reference in DRL 236(B)(1)(d)(3) to " . . . . appreciation . . . due to the contributions or efforts of the other spouse" has triggered a two-step process to ascertain whether or not a particular case fits this subdivision. Logically, if property increases passively, i.e., without effort or contribution by the titled spouse, the efforts of the non-titled spouse in making a home, caring for the children, rendering psychological and/or moral support and all those intangible acts by which one spouse renders aid and comfort to the other to facilitate his/her positive efforts at increasing the value of these holdings is irrelevant. Certainly the existence or lack of it of a true marital partnership is irrelevant to the increased value of an asset which transpires without the efforts of either spouse.

It is where an increase in value of a particular asset occurs as a result of positive efforts by the titled spouse that the homemaking efforts of the non-titled spouse become legally relevant (Price v. Price, 69 NY2d 8). In this event, the Court of Appeals has promulgated a 3-step formula (cf., Price v. Price, supra). First, it must be established that the property in question increased in value; second, that such appreciation was due in whole or part to the active efforts of the titled spouse; third, that those efforts of the titled spouse which caused the appreciation in value were aided directly or indirectly by the non-titled spouse as homemaker.

If a particular increase of value of separate property was caused by passive appreciation, i.e. appreciation which does not occur as a result of active efforts of the titled spouse, the third factor is never triggered and any increase in value resulting from passive factors remains separate property (Price v. Price, supra). Succinctly, the non-titled spouse must prove that any appreciation upon which he/she relies resulted at least in part from the efforts of the titled spouse (Jolis v. Jolis, 11 Misc 2d 965, affd 98 AD2d 692; Capasso v. Capasso, 129 AD2d 267; Bronstein v. Bronstein, 122 AD2d 553; Lischynsky v. Lischynsky, 120 AD2d 824) before his/her intangible contribution to the marriage becomes legally relevant. Lacking a threshold finding of non-passive appreciation, this issue is never reached and is not properly considered.

Grandparent & sibling

Matter of Camille V. v. Dianna M.
233 N.Y.L.J. 24

DRL §72 provides that where a parent is deceased "or where circumstances show that conditions exist which equity would see fit to intervene" a grandparent may seek an order of visitation. The court may then order visitation if it is in the best interests of the child. When making a best interests determination, "special weight" must be given to the parent's decision (Troxel v. Granville (530 US 57 [2000]); Hertz v. Hertz, 291 AD2d 91 [2nd Dept. 2002]); Morgan v. Grzesik, 287 AD2d 150 [4th Dept. 2001]).

Cocose v. Diane B.
803 N.Y.S.2d 17

Under New York law, there are only two classes of individuals, other than their parents, who may seek visitation with children. They are, pursuant to statute, siblings of the whole and half-blood, and grandparents. Perry-Rogers v. Fasano, 276 A.D.2d 67, 715 N.Y.S.2d 19 (1st Dept. 2000), leave to app. denied 96 N.Y.2d 712, 728 N.Y.S.2d 439 (2001). Section 71 of the Domestic Relations Law, which authorizes sibling visitation, provides:

Where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf of a child, whether by half or whole blood, may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such brother or sister in respect to such child.

Child protective services

Matter of William S. v. Gloria S.
819 N.Y.S.2d 214

Family Court Act §1012(e)(ii) defines an abused child, in part, "as a child whose parent or other person legally responsible for his care creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ."

Social Services Law §384-b 8(a)(I) defines a child as severely abused by his or her parent if "the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law."


Family offenses

In the Matter of K.V. v. K.F.
867 N.Y.S.2d 670

 Article 8 of the Family Court Act ("Family Offense Proceedings") was originally intended by the New York State Legislature to provide "practical help" in a civil proceeding to the victim rather than "punishing" the perpetrator of the domestic violence in a criminal proceeding. Relief under a family offense proceeding was based upon "assaults and disorderly conduct" which occurred between husbands and wives, parents and child, or members of the same family or household. Family Court was given exclusive jurisdiction of family offense proceedings and criminal courts were required to transfer such proceedings to the Family Court except in certain limited instances. (1962 McKinney's Session Laws, Vol. 2, pp. 3429-3447.)

Since that time, the Legislature has revised Article 8 in order to further protect victims of domestic violence. For example, the victim may now choose between proceeding in either the Family Court, in a criminal court, or in both courts. In addition, the number of "enumerated offenses" (criminal conduct which serves as a basis for a family offense proceeding) in Article 8 has been increased by the Legislature. The acts which are currently enumerated under the Family Court Act are disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree, and attempted assault. The Legislature's stated intention in its amendments of Article 8 was to " . . . reaffirm our commitment to the victims of domestic violence and send a clear message to batterers that domestic violence will not be tolerated." (NYS Legislative Annual 1994, p. 168.)

In 2008
, the Legislature amended Article 8 of the Family Court Act by expanding the defintion of "members of the same family or household" to permit persons in an "intimate relationship" to seek an order of protection. The amended statute states these persons:

" . . . are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an 'intimate relationship'." (Family Ct Act §812 [1] [e], as amended by L 2008, ch 326.)


IF more than one person files a return claiming the same qualifying child and...
THEN the child will be treated as the qualifying child of the...
Only one of the persons is the child's parent,
Two of the persons are parents of the child, and they do not file a joint return together,
Parent with whom the child lived the longest during the year.
Two of the persons are parents of the child, the child lived with each parent the same amount of time during the year, and the parents do not file a joint return together,
Parent with the higher adjusted gross income (AGI).
None of the person's are the child's parent,
Person with the highest AGI.

Whoever has physical custody for more than six months gets to claim the child, unless he or she signs the child away via Form 8332 or the equivalent; or there is a divorce document granting the exemption to the spouse providing support (naturally the child support must be paid for the agreement to hold up).

If the children lived with both parents for exactly six months (possible in a leap year), then whoever has the higher adjusted gross income gets to claim them. 

Bio-neurology in Child Custody


Explaining and correcting child mis-beaviors is a difficult task put to Family Court. Regardkess, the court can be tasked with sorting out how to assign custody and dole out visitation for children whose significant profile is bad behavior. That may be, but not necessarily, be associated with ADHD, ODD, or autism. 

In the past four to six years there has been a great influx of medical research on the effect of chemical and dietary deficiencies and imbalances upon emotional and behavioral behaviors of children. For instance, I have worked on cases where a child's acute anxiety on having contact with the father likely was very much affected by potassium deficiencies, an issue found only after an emergency room visit revealed the condition. Another case has ADHD related characteristics, aggressive and unruly behavior related in some part to nutritional deficiencies resulting in serotonin and tryptophan imbalances. 

These are new areas for courts to examine when looking at how to determine the source of a child's problems, and thereby to determine what may be needed to be done in a custody or visitation case. There is little case history in NY or elsewhere on the topics, though courts seem willing to encourage parents to explore the problem in order to reach a settlement. 

Testing for these deficiencies or imbalances is rarely done until the child is well into the problem and behavior has adversely affected standings with parents, peers and schools. Good counsel may be that time be spent with the pediatrician to design a formula of tests and/or referral to specialists. Select an attorney who has a familiarity with the issue and can assist to direct the court and parties to find solutions.



A family pet is an item of personal property, and principles concerning the classification of this property apply. Once it is determined, however, that the family pet is marital property or that the court has the authority to award the family pet to one party or the other, then the court may consider who would better care for the pet and who has the greater attachment to the pet. This is really no different from the many cases that award a particular piece of property to the party that asserts a greater sentimental value to an item of property. E.g., Starnes v. Starnes, 680 So. 2d 572 (Fla. 1st DCA 1996) (error to award to wife the husband’s childhood toys); Uluhogian v. Uluhogian, 86 Ill. App. 3d 654, 408 N.E.2d 108 (1980) (court should have awarded gold cross to husband, where husband’s uncle gave cross to husband before marriage); In re Huffman, 493 N.W.2d 84 (Iowa Ct. App. 1992) (awarding wife her jewelry); Summer v. Summer, 206 A.D.2d 930, 615 N.Y.S.2d 192 (1994) (husband’s photographs are marital property, but they should have been awarded to husband); In re Anderson, 94 Or. App. 774, 766 P.2d 1057 (1990) (trial court should have awarded wife piano and clawfoot piano stool wife’s grandmother gave to wife); see also Williams v. Williams, 613 A.2d 200 (Vt. 1992) (origin or property as family heirloom is relevant factor).


Using a MySpace Page as Evidence

The normal methods of proving authorship apply to Internet material.  Proof that an individual wrote a webpage can be in many forms, including:  an admission by the author, testimony of a witness who assisted or observed the creation of the webpage, evidence of similarities between the contested webpage and an authenticated webpage, content on the webpage that connects it to the author, or a stipulation.  Lorraine, 241 F.R.D. at 545-49; 555-57.  Often a person's social networking webpage will include pictures of the author, commentary by the author, the author's unique background, the author's hobbies and preferences, and comments by friends of the author.  If all of this information suggests the person identified with the page is the true author, there is a reasonable argument under 901(b)(4) that the distinctive characteristics of the webpage provide enough evidence for a jury to find that the apparent author is responsible for the website's content.

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