Family Law

There are so many different areas of family law may effect you, including: marriage, divorce, adoption, child support and custody, annulment, domestic abuse, abortion, and protective orders. Many of New York’s laws are similar to those of other states, with some minor differences.

New York was one of the first states to pass a stalking law that applied to ordinary citizens and not just celebrities. New York allows same-sex couples to get married, and allows married, single, heterosexual and homosexual individuals to adopt children.

Child Custody in New York

Child custody is always determined by what is in the “best interest of the child” by the New York courts. Factors considered when deciding on child custody, include:

  • Each parent’s ability to care for the child;
  • Each parent’s mental health and physical wellbeing;
  • Any history of domestic violence in the family;
  • The parents’ work schedules;
  • The child’s desires, depending on the child’s age;
  • The parents’ ability to cooperate with each other;
  • Grandparent Visitation Rights in New York

Grandparents Rights

New York is one of the few states to allow grandparents and other non-parents to petition a court for visitation rights. The process is similar to when a parent petitions for child custody or visitation. The grandparent or non-parent must present a case to the court that it is in the child’s best interest to have them in their lives. Siblings may also petition for visitation this way.

Adoption

New York does not place limits on who may be adopted. This means that adults may adopt each other. Generally, in New York, any adult who has resided in the State for more than three (3) months may adopt. If the adopting parent is married, both spouses must adopt the child, unless the spouses are legally separated, or have been separated for at least three years. New York does not have restrictions on the genders of the adopting parents, and same sex adoption is an option for singles and spouses.

Marriage and Divorce

New York does not allow marriages between ancestors and descendants, siblings regardless of whole or half blood, or between the siblings of ancestors and descendants. While same-sex marriage was never specifically prohibited in New York, a 2011 state law granted marriage rights to same-sex couples. The U.S. Supreme Court concurred with the New York legislature in its decision in Obergefell v. Hodges that held that denial of marriage to same-sex couples was a violation of the 14th Amendment guarantee of equal protection.

To file for divorce in New York:

  1. The parties must have been married in the state and at least one party is a New York resident when the divorce action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  2. The parties must have resided in the state as husband and wife and either party is a State resident when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
  3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
  4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
  5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. (New York Domestic Relations Laws sec. 230 and 231)

An action for divorce may be maintained by the divorcing couple on any of the following grounds:

  1. Cruel and inhuman treatment of one spouse by the other where the conduct endangers the physical or mental well being of the injured spouse and renders it unsafe or improper for the injured spouse to cohabit with the alleged abuser.
  2. The abandonment of marriage by a spouse for a period of one or more years.
  3. Imprisonment of a spouse for a period of three or more consecutive years after the marriage.
  4. Adultery meaning the commission of an act of sexual intercourse, oral sex or anal sex, voluntarily performed by a spouse, with a person other than the other spouse after the marriage.
  5. The couple has lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
  6. The couple has lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto, filed in the office of the clerk of the county wherein either party resides. and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) The names and addresses of each of the parties, (b) The date of marriage of the parties, (c) The date of the agreement of separation and (d) The date of this subscription and acknowledgment or proof of such agreement of separation.
  7. Irretrievable breakdown in relationship for a least six months. (New York – Domestic Relations Laws – Volume 8 – Sections: 170 and Article 10, Section 170, and Article 13, Section 230)

Protective Orders

New York, as in most states, has protective order laws that can get triggered in domestic violence cases. These court orders often state, for instance, that an abusive spouse may not come within a certain distance of the protected person for a period of time. Protective orders can also require the abuser to:

  • Stop all contact and communication with the victim;
  • Move out of a home shared with the victim;
  • Stay away from the victim’s home, school, or place of employment;
  • Submit to counseling; and
  • Reimburse the victim’s reasonable expenses (such as attorney’s fees).

In New York, protective orders are not restricted to cases of domestic violence within a family. They can also come into play with issues of stalking.

In any family law situation, you should consult a skilled attorney, like the Gelbman Legal Group team. Use the form below to request a free case evaluation.

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