Parental Access Visitation Guidelines

When you talk to matrimonial lawyers in other states, they marvel at our peculiar practices. Fault divorces, let alone jury trials for fault divorces, always raise an eyebrow or two. Then you explain about enhanced earnings,[1] child support to age 21 including college contributions,[2] no recoupment of child support overpayments,[3] double dipping of child support and enhanced earnings[4] and guideline recalculations every two years in spite of agreements to the contrary.[5] No one believes you. So, I was not surprised to learn that other states have more progressive rules about custodial access, known as visitation in the Domestic Relations Law.[6] After all, if there are Child Support Guidelines, why not Parental Access Guidelines?
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines

1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve

The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.

[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf

[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)

Valentine's Musings

“Valentine's Day is when a lot of married men are reminded what a poor shot Cupid really is.” Anonymous

“I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.” J. Edgar Hoover

"If you're given a choice between money and sex appeal, take the money. As you get older, the money will become your sex appeal." Katherine Hepburn

Here’s some food for thought. About 20 percent of divorces in Australia are commenced in January.[1] In Britain, the divorce lawyers call January 1 “D (as in Divorce) Day.” Similar statistics are found in South Africa where January is called “Divorce Month.” By the way, the top reasons for divorce in Great Britain are (a) adultery, (b) abuse, (c) boredom and (d) lack of sex, in that order. Makes me wonder why we don’t make boredom a new cause of action in DRL 170, somewhere between abandonment and imprisonment. Oh, well. And a recent Gfk Roper[2] poll found that women divorce over abuse and men divorce over sex, or the lack thereof. In America boredom is a distant fifth among the reasons to divorce, at a paltry 12% compared to those ennui driven Brits at 29%.
That being said, let’s see what little treasures our Appellate Courts have given us for the New Year. Fault continues to be at the top of everyone’s resolution list, and the Third Department continues to be somewhat more liberal in granting divorces than their downstate brethren. Case in point: James Dunne who was asked to leave his home because of the misuse of medicines and alcohol.[3] His wife moved him into an apartment, and refused to allow him to come home for over one year. Although he stopped drinking and controlled his medications, she told him he could come home only if he was drug free. This was enough for a constructive abandonment divorce because his wife had placed an “unreasonable condition as a term of their relationship.” Who hasn’t? Compare that with Tricia Justin,[4] whose cruelty divorce was tossed by the Second Department for lack of proof, in spite of the trial court’s findings. Why? Who the hell knows? We’re talking Second Department here, so after stating a few platitudes about long term marriage, high degrees of proof and repeating the statute, they said, “Accordingly Supreme Court improperly granted the divorce.” Thanks guys.
Just in time for the New Year the Third Department gave us their own little version of Catch 22. Sometimes you just can’t win, as in the rule of support recoupment. If you get banged by a high temporary order and pay it, you cannot get the money back even though the final order is retroactive to the date of commencement of an action.[5] You cannot even get a credit against equitable distribution for overpayments.[6] So what do you do? If you pay under the order, you cannot get the money back or a credit. If you do not pay, you are in violation of a court order. It makes lawyering a little tricky as we can never advise any client to ignore a court order. This was the dilemma of Norman Rosenberg. When faced with a motion for temporary maintenance, he claimed to have taken a vow of poverty and to have no assets. Nice try, but the judge hit him for $2,500 per month temporary maintenance in November of 2004. Being poor of course, he paid nothing on the order. In 2006, Norm’s wife Eileen aka Leeny, became the beneficiary of a trust upon her father’s death paying her, ironically, about $2,500 per month. Norm promptly moved for modification and the court eliminated his maintenance obligation in August of 2006. “Wait a minute here” said poor Norm. “Final orders are to be retroactive to the date of commencement, so I shouldn’t be banged for the $55,000 in arrears that accumulated between November 2004 and August of 2006.” Sorry, Norm, but the Third Department saw things differently.[7] Since he made no payments on the temporary order, he gets no reduction since he “willfully flouted” the order, vow of poverty or no vow of poverty. Of course this begs the question, “Just how much bling would Norm have to pay to insure he gets the retroactive reduction without falling into the no recoupment trap of those who pay it all and get no credit?” Beats me.
How about another Christmas gift from the Third Department. I have often said that if you give ten judges the incomes of the parties and ask them to calculate what the CSSA “would have been,” you would get ten different answers. But that is exactly what is required by the statute if you are going to deviate from the “basic support obligation.”[8] The failure to include such provisions renders the agreement void. So, what if you screw up, and miscalculate the amount of basic support? All is not fatal, as the Third Department held in Sullivan v. Sullivan.[9] Here the deviation mistake was only $48 per month and resulted from the failure to deduct maintenance from income prior to applying the CSSA percentages and the Third Department let that one slide. I am sure that brought a sigh of relief to the payor spouse as well as the malpractice insurance carrier of the drafting attorney.
On the same sex marriage front, we are all anxiously awaiting the first New York divorce case based on a marriage or civil union of another state. Will comity prevail and allow our courts to divorce and equitably distribute property of married gay and lesbian couples, or will public policy or some other rationale close the courthouse door to such couples? Rhode Island has already weighed in on the issue, refusing to grant a divorce to a Rhode Island lesbian couple who were legally married in Massachusetts.[10] So a glimpse of the future came from the Third Department in a Workers Comp case of all things. In a full opinion in Langan v. State Farm Fire and Casualty,[11] the court dismissed the comity and Equal Protection claims of a “committed domestic partner” who sought death benefits following the death of his spouse, Neal Conrad Spicehandler. The parties had entered into a civil union in Vermont in 2000, and Vermont law gave them the right to obtain comp benefits as though married. The claim was dismissed as the comp judge found no standing in the domestic partner and the Appellate Division affirmed. Justice Rose dissented, and I hope this finds its way to the Court of Appeals.
Speaking of which, remember the Farkas[12] case? There, the First Department threw out a $750,000 judgment against a spouse for failure to file within the 60 day time limitations of 22 NYCRR 202.48. Thanks to a two judge dissent, the Court of Appeals has now granted leave so stay tuned.
Finally, welcome home Justices Kavanaugh and Malone, who have returned from exile in the First Department to finally serve those who voted for them in the first place.
Happy Valentine’s Day, and for all of my Canadian fans, Happy National Lactose Intolerance Awareness Month.
[1] Sydney Morning News January 12, 2008
[2] Gfk Roper is really a consumer research organization, which really makes me wonder why they are interested in the reasons for divorce. Must be a buck to be made somewhere.
[3] Dunne v. Dunne, __ A.D.3rd __ (January 10, 2008).
[4] Justin v. Justin, __ A.D.2nd __ (January 8, 2008)
[5] Fox v. Fox, 306 A.D.2nd 583 (3rd Dept., 2003), appeal dismissed 1 N.Y.3rd 622.
[6] Redgrave v. Redgrave, 25 A.D.3rd 973 (3rd Dept., 2006).
[7] Rosenberg v. Sacks, __ A.D.3rd December 27, 2007.
[8] Domestic Relations Law Section 240(1-b)(h)
[9] __ A.D.3rd __ (3rd Dept., December 20, 2007)
[10] Chambers v. Ormiston, Decision 06-340, December 7, 2007, a day which shall live in infamy.
[11] __ A.D.3rd __ (3rd Dept., December 27, 2007).
[12] 40 A.D.3rd 207 (1st Dept., 2007).