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Updated December 1, 2019
Recent Legislation and Court Rules Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a Laws of 2019, Ch 732[1] amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home. It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for suchproceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents. Family Court Act §1017 was amended by adding a new subdivision 5 to read as follows: 5. In any case in which an order has been issued pursuant to this article remanding or placing a child in the custody of the local social services district, the social services official or authorized agency charged with custody or care of the child shall report any anticipated change in placement to the attorneys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indi- cation of the report. The official or agency may protect the confiden- tiality of identifying or address information regarding the foster or prospective adoptive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means, including, but not limited to, by electronic means or placement on the record during proceedings in family court.[2] Family Court Act, §1055 (b)(E) was repealed. [3] Family Court Act § 1055 was amended by adding a new subdivision (j) to read as follows: (j) In any case in which an order has been issued pursuant to this section placing a child in the custody or care of the commissioner of social services, the social services official or authorized agency charged with custody of the child shall report any anticipated change in placement to the attorneys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of place- ment on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) anoth- er child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of iden- tifying or address information regarding the foster or prospective adop- tive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as neces- sary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means, including, but not limited to, by electronic means or placement on the record during proceedings in family court. [4] Family Court Act 1089 (d) 2 (vii) was amended by adding a new clause (H) to read as follows: (H) a direction that the social services official or authorized agency charged with care and custody or guardianship and custody of the child, as applicable, report any anticipated change in placement to the attor- neys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of identifying or address information regarding the foster or prospective adoptive parents. Reports under this paragraph shall not be sent to attorneys for birth parents whose parental rights have been terminated or who have surrendered their child or children. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means including, but not limited to, by electronic means or placement on the record during proceedings in family court; and [5] Social Services Law §358-a, subd. 3 was amended by adding a new paragraph (g) to read as follows: (g) In any case in which an order has been issued pursuant to this section approving a foster care placement instrument, the social services official or authorized agency charged with custody or care of the child shall report any anticipated change in placement to the attor- neys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of identifying or address information regarding the foster or prospective adoptive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this section or related proceedings under the family court act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means including, but not limited to, by electronic means or placement on the record during proceedings in family court. [6] Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law. Domestic Relations Law section 15 was amended to amend the 'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment, and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity. One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not. Domestic Relations Law § 15, subdiv.1 (b) was amended to read as follows: (b) Every application for a marriage license shall contain a statement to the following effect: NOTICE TO APPLICANTS (1) Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud. (2) A person's last name (surname) does not automatically change upon marriage, and neither party to the marriage must change his or her last name. Parties to a marriage need not have the same last name. (3) One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below. Such entry shall consist of one of the following surnames: (i) the surname of the other spouse; or (ii) any former surname of either spouse; or (iii) a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse; or (iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses. (4) One or both parties to a marriage may elect to change the middle name by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below. Such entry shall consist of one of the following options: (i) the current surname of the spouse electing to change his or her name; or (ii) any former surname of the spouse electing to change his or her name; or (iii) the surname of the other spouse. (5) The use of this option will have the effect of providing a record of the change of name. The marriage certificate, containing the new name, if any, constitutes proof that the use of the new name, or the retention of the former name, is lawful. (6) Neither the use of, nor the failure to use, this option of selecting a new surname or middle name by means of this application abrogates the right of each person to adopt a different name through usage at some future date. ..................................... (Optional -- Enter new surname above)[7] Laws of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages. Domestic Relations Law §11-a, subd. 1 a was amended to read as follows: a. The city clerk of a city of the first class of over one million inhabitants may designate in writing any or all of the deputy city clerks and from among the permanent members of the city clerk's staff as many staff members as the city clerk deems necessary to perform marriage ceremonies, which designation shall be in writing and be filed in the office of such city clerk. The day of such filing shall be endorsed on the designation. Any such designation shall be and remain in effect for six months from the filing thereof. Laws of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11. Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The measure also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese. Family Court Act 812, subd. 5 provides: 5. Notice. Every police officer, peace officer or district attorney investigating a family offense under this article shall advise the victim of the availability of a shelter or other services in the commu- nity, and shall immediately give the victim written notice of the legal rights and remedies available to a victim of a family offense under the relevant provisions of this act and the criminal procedure law. Such notice shall be available, at minimum, in plain English, Spanish, Chinese and Russian and, if necessary, shall be delivered orally and shall include but not be limited to the information contained in the following state- ment: "Are you the victim of domestic violence? If you need help now, you can call 911 for the police to come to you. You can also call a domestic violence hotline. You can have a confidential talk with an advocate at the hotline about help you can get in your community including: where you can get treat- ment for injuries, where you can get shelter, where you can get support, and what you can do to be safe. The New York State 24-hour Domestic & Sexual Violence Hotline number is (insert the statewide multilingual 800 number). They can give you information in many languages. If you are deaf or hard of hearing, call 711. This is what the police can do: They can help you and your children find a safe place such as a family or friend's house or a shelter in your community. You can ask the officer to take you or help you and your children get to a safe place in your community. They can help connect you to a local domestic violence program. They can help you get to a hospital or clinic for medical care. They can help you get your personal belongings. They must complete a report discussing the incident. They will give you a copy of this police report before they leave the scene. It is free. They may, and sometimes must, arrest the person who harmed you if you are the victim of a crime. The person arrested could be released at any time, so it is important to plan for your safety. If you have been abused or threatened, this is what you can ask the police or district attorney to do: File a criminal complaint against the person who harmed you. Ask the criminal court to issue an order of protection for you and your child if the district attorney files a criminal case with the court. Give you information about filing a family offense petition in your local family court. You also have the right to ask the family court for an order of protection for you and your children. This is what you can ask the family court to do: To have your family offense petition filed the same day you go to court. To have your request heard in court the same day you file or the next day court is open. Only a judge can issue an order of protection. The judge does that as part of a criminal or family court case against the person who harmed you. An order of protection in family court or in criminal court can say: That the other person have no contact or communication with you by mail, phone, computer or through other people. That the other person stay away from you and your children, your home, job or school. That the other person not assault, harass, threaten, strangle, or commit another family offense against you or your children. That the other person turn in their firearms and firearms licenses, and not get any more firearms. That you have temporary custody of your children. That the other person pay temporary child support. That the other person not harm your pets or service animals. If the family court is closed because it is night, a weekend, or a holiday, you can go to a criminal court to ask for an order of protection. If you do not speak English or cannot speak it well, you can ask the police, the district attorney, or the criminal or family court to get you an interpreter who speaks your language. The interpreter can help you explain what happened. You can get the forms you need to ask for an order of protection at your local family court (insert addresses and contact information for courts). You can also get them online: www.NYCourts.gov/forms. You do not need a lawyer to ask for an order of protection. You have a right to get a lawyer in the family court. If the family court finds that you cannot afford to pay for a lawyer, it must get you one for free. If you file a complaint or family court petition, you will be asked to swear to its truthfulness because it is a crime to file a legal document that you know is false." The division of criminal justice services in consultation with the state office for the prevention of domestic violence shall prepare the form of such written notice consistent with the provisions of this section and distribute copies thereof to the appropriate law enforcement officials pursuant to subdivision nine of section eight hundred forty- one of the executive law. Additionally, copies of such notice shall be provided to the chief administrator of the courts to be distributed to victims of family offenses through the family court at such time as such persons first come before the court and to the state department of health for distribution to all hospitals defined under article twenty- eight of the public health law. No cause of action for damages shall arise in favor of any person by reason of any failure to comply with the provisions of this subdivision except upon a showing of gross negligence or willful misconduct. [8] Laws of 2019, Ch 627, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment. A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest. In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'." As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. CRPL 3215(b) was amended to read as follows: (b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a refer- ence. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, prop- erly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reason- able notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-exami- nation. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application. Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305 of this chapter. Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care. Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the Family Court Act § 657 (c) provides: (c) Notwithstanding any other provision of law to the contrary, persons possessing a lawful order of guardianship or custody of a child shall have the right and responsibility to make decisions, including issuing any necessary consents, regarding the child's protection, educa- tion, care and control, health and medical needs, and the physical custody of the person of the child. Provided, however, that nothing in this subdivision shall be construed to limit the ability of a child to consent to his or her own medical care as may be otherwise provided by law. Laws of 2019, Ch 602, enacted December 6, 2019 amended Family Court Act § 322.4. Family Court Act section 322.2(4) was amended to provide that dismissal of a petition upon issuance of an order of commitment "constitutes a bar to further prosecution of the charge or charges contained in the petition." Family Court Act section 322.2(4), paragraphs (a), (c) and (d) of subdivision 5 and subdivision 6 were amended to read as follows: 4. If the court finds that there is probable cause to believe that the respondent committed a misdemeanor, the respondent shall be committed to the custody of the appropriate commissioner for a reasonable period not to exceed ninety days. Unless the court specifies that such commitment shall be in a residential facility, such commissioner having custody may arrange for treatment in an appropriate facility or program, including an outpatient program, in accordance with subdivision (e) of section 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental hygiene law. The court shall dismiss the petition on the issuance of the order of commitment and such dismissal shall constitute a bar to further prosecution of the charge or charges contained in the petition. (a) If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent commit- ted to the custody of the commissioner of mental health or the commis- sioner of the office for people with developmental disabilities for an initial period not to exceed one year from the date of such order. Unless the court specifies that such commitment shall be in a residen- tial facility, such commissioner having custody may arrange for treat- ment in an appropriate facility or program, including an outpatient program, in accordance with subdivision (e) of section 7.09 or subdivi- sion (c-1) of section 13.09 respectively, of the mental hygiene law. Such period may be extended annually upon further application to the court by the commissioner having custody or his or her designee. Such application must be made not more than sixty days prior to the expira- tion of such period on forms that have been prescribed by the chief administrator of the courts. At that time, the commissioner must give written notice of the application to the respondent, the counsel repres- enting the respondent and the mental hygiene legal service if the respondent is at a residential facility. Upon receipt of such applica- tion, the court must conduct a hearing to determine the issue of capaci- ty. If, at the conclusion of a hearing conducted pursuant to this subdi- vision, the court finds that the respondent is no longer incapacitated, he or she shall be returned to the family court for further proceedings pursuant to this article. If the court is satisfied that the respondent continues to be incapacitated, the court shall authorize continued custody of the respondent by the commissioner in a facility or program for a period not to exceed one year. Such extensions shall not continue beyond a reasonable period of time necessary to determine whether the respondent will attain the capacity to proceed to a fact finding hearing in the foreseeable future but in no event shall continue beyond the respondent's eighteenth birthday or, if the respondent was at least sixteen years of age when the act was committed, beyond the respondent's twenty-first birthday. (c) If the court finds that there is probable cause to believe that the respondent has committed a designated felony act, the court shall require that treatment be provided in a residential facility within the appropriate office of the department of mental hygiene or in an outpa- tient facility if the commissioner having custody of the child petitions the court pursuant to subdivision seven of this section and such court approves. (d) The commissioner shall review the condition of the respondent within forty-five days after the respondent is committed to the custody of the commissioner. He or she shall make a second review within ninety days after the respondent is committed to his or her custody. Thereaft- er, he or she shall review the condition of the respondent every ninety days. The respondent and the counsel for the respondent, shall be noti- fied of any such review and afforded an opportunity to be heard. The commissioner having custody shall apply to the court for an order dismissing the petition whenever he or she determines that there is a substantial probability that the respondent will continue to be incapac- itated for the foreseeable future. At the time of such application the commissioner must give written notice of the application to the respond- ent, the presentment agency and the mental hygiene legal service if the respondent is at a residential facility. Upon receipt of such applica- tion, the court may on its own motion conduct a hearing to determine whether there is substantial probability that the respondent will continue to be incapacitated for the foreseeable future, and it must conduct such hearing if a demand therefor is made by the respondent or the mental hygiene legal service within ten days from the date that notice of the application was given to them. The respondent may apply to the court for an order of dismissal on the same ground. 6. Any order pursuant to this section dismissing a petition shall not preclude an application for voluntary or involuntary care and treatment in a facility or program of the appropriate office of the department of mental hygiene pursuant to the provisions of the mental hygiene law. Unless the respondent is admitted pursuant to such an application he or she shall be released.[9] Family Court Act § 322.2, subd. 7 was amended to to permit treatment services to be provided on an outpatient basis for youth deemed by the Family Court to lack capacity upon application by the Commissioner of Mental Health or of People With Developmental Disabilities and with approval of the Court. Family Court Act section 322.2, subdivision 7 was amended to read as follows 7. If the commissioner having custody of a child committed to a resi- dential facility pursuant to subdivision four or paragraph (a) of subdi- vision five of this section determines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may arrange for such treatment. If the commissioner having custody of a child committed to a residential facil- ity pursuant to paragraph (c) of subdivision five of this section deter- mines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may peti- tion the family court for a hearing. If the court finds after a hearing that treatment in a non-residential facility or on an outpatient basis would be more appropriate for such child, the court shall modify its order of commitment to direct the commissioner to transfer the child to a non-residential facility or arrange outpatient treatment. Application for a hearing to determine whether any child committed to a residential facility under subdivisions four or five of this section may be more appropriately treated in a non-residen- tial facility or on an outpatient basis may be made by the respondent. [10] Laws of 2019, Ch 602, enacted December 6, 2019 amended Family Court Act § 322.1 Family Court Act § 322.1 was amended to remove the requirement that examinations be conducted in a hospital setting in order to provide that, where a juvenile respondent is in custody, the examination may be conducted where the juvenile is in custody 'so long as no reasonable outpatient setting is available." This is consistent with the decision of the Family Court in Matter of Justin L., 56 Misc.3d 1167 (Fam. CL, Kings Co., 2017), in which the court's Mental Health Service Clinic was ordered to send evaluators to the juvenile detention center since Bellevue Hospital maintained that its clinicians were not trained to perform capacity examinations for juveniles. Family Court Act § 322.1, subd.1 was amended to read as follows: 1. At any proceeding under this article, the court must issue an order that the respondent be examined as provided herein when it is of the opinion that the respondent may be an incapacitated person. Notwith- standing the provisions of this or any other law, the court may direct that the examination be conducted on an outpatient basis. If the respondent is in custody at the time the court issues an order of examination, the examination may be conducted at the place where the respondent is being held in custody so long as no reasonable alternative outpatient setting is available. The court shall order that two quali- fied psychiatric examiners as defined in subdivision seven of section 730.10 of the criminal procedure law examine the respondent to determine if he or she may be diagnosed as a person with mental illness or an intellectual or developmental disability.[11] Laws of 2019, Ch 529 amended CPLR 4503 (a) (2) (A), approved and effective November 20, 2019 to add clause (iii) and to add lifetime trustee to (a)(2)(B). CPLR § 4503 provides as follows: § 4503. Attorney (a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services. 2. Personal representatives. (A) For purposes of the attorney-client privilege, if the client is a personal representative and the attorney represents the personal representative in that capacity, in the absence of an agreement between the attorney and the personal representative to the contrary: (i) No beneficiary of the estate is, or shall be treated as, the client of the attorney solely by reason of his or her status as beneficiary; (ii) The existence of a fiduciary relationship between the personal representative and a beneficiary of the estate does not by itself constitute or give rise to any waiver of the privilege for confidential communications made in the course of professional employment between the attorney or his or her employee and the personal representative who is the client; and (iii) The fiduciary's testimony that he or she has relied on the attorney's advice shall not by itself constitute such a waiver. (B) For purposes of this paragraph, “personal representative” shall mean (i) the administrator, administrator c.t.a., ancillary administrator, executor, preliminary executor, temporary administrator, lifetime trustee or trustee to whom letters have been issued within the meaning of subdivision thirty-four of section one hundred three of the surrogate's court procedure act, and (ii) the guardian of an incapacitated communicant if and to the extent that the order appointing such guardian under subdivision (c) of section 81.16 of the mental hygiene law or any subsequent order of any court expressly provides that the guardian is to be the personal representative of the incapacitated communicant for purposes of this section; “beneficiary” shall have the meaning set forth in subdivision eight of section one hundred three of the surrogate's court procedure act and “estate” shall have the meaning set forth in subdivision nineteen of section one hundred three of the surrogate's court procedure act. (b) Wills and revocable trusts. In any action involving the probate, validity or construction of a will or, after the grantor's death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. [1] § 6. This act shall take effect immediately, provided that sections one, three, four and five of this act shall take effect on the one hundred twentieth day after it shall have become a law; provided, howev- er, that section two of this act shall be deemed to have taken effect on the same date as section 1 of chapter 342 of the laws of 2010, took effect. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such effective date. [2] Laws of 2019, Ch 732, § 1. [3] Laws of 2019, Ch 732, § 2. [4] Laws of 2019, Ch 732, § 3. [5] Laws of 2019, Ch 732, § 4. [6] Laws of 2019, Ch 732, § 5. [7] Laws of 2019, Ch 716, §2 [8] There was an identical amendment to Criminal Procedure Law § 530.11. [9] Laws of 2019, Ch 602, § 2. [10] Laws of 2019, Ch 602, § 2. [11] Laws of 2019, Ch 602, § 1. Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve. The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant to Social Services Law § 111-I (2)(b). The adjustment date of the maintenance income cap was changed so that the adjustments in the maintenance and child support income caps all occur at the same time. Family Court Act § 412(2)(d) was amended to read as follows: (d) "income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019) Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows: (5) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019) Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows: (4) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 3, effective November 20, 2019) Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 1028-a (i), effective October 29, 2019. Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents, all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c) who meet Family Court Act § 1028-a requirements. Family Court Act § 1028-a provides: § 1028-a. Application of a relative to become a foster parent (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if: (i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law; (ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care; (iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal; (iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and (v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed. (b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child. (c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent. (Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.) Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking such information. Public Health Law § 4138-e provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law. In addition, in the event that the commissioner does not have the original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1) Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2) Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3) Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4) Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5) Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6) Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7) Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8) Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the adoptive parents also be provided to the commissioner of health. (Section 9) The effective date of the amendments is January 15, 2020. (Section 10) Laws of 2019, Ch 258, effective September 16, 2019 Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, where the petitioner's parentage is legally-recognized under New York State law, shall not be denied solely on the basis that the petitioner's parentage is already legally-recognized. According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be. Laws of 2019, Ch 313 effective September 13, 2019 Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below) Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows: (v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment; Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations. Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows: (i) The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows: (v) an amount imputed as income based upon the parent’s former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent’s obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment; Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations. Family Court Act § 451 subd. 3 (a) was amended to read as follows: (a) The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Social Services Law § 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Law was amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year. Social Services Law § 111-g, subd. 3 (a) was amended to read as follows: (a) A person who is receiving child support services pursuant to this section who has never received assistance pursuant to title IV-A of the federal social security act shall be subject to an annual service fee of thirty-five dollars for each child support case if at least five hundred fifty dollars of support has been collected in the federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent shall be a separate child support case for the purpose of imposing an annual service fee. The fee shall be deducted from child support payments received on behalf of the individual receiving services. According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances). Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that There is a rebuttable presumption that it is not in the best interests of the child to be placed in the custody of or have unsupervised visits with a person who has been convicted of a felony sex offense, as defined in section 70.80 of the penal law, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute such a felony sex offense, where the victim of such offense was the child who is the subject of the proceeding. ►Laws of 2019, Ch 182, §1, effective September 22, 2019. Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, read as follows: When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors. Laws of 2019, Ch 182, §2, effective September 22, 2019. Unlawful dissemination or publication of an intimate image added to Family Court Act §812 Laws of 2019, Ch 109 added the crime of unlawful dissemination or publication of an intimate image to the Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act 812 to include it in the list of crimes that constitute a family offense and added it to Criminal Procedure Law 530. 11 The Civil Rights Law was amended to add new cause of action, in Civil Rights Law § 52–b titled Private right of action for unlawful dissemination or publication of an intimate image. It provides, among other things, that any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image: was taken when such person had a reasonable expectation that the image would remain private; and depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and was disseminated or published, or threatened to be disseminated or published, without the consent of such person. Appellate Division Revises Statement of Client Rights A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019. Laws of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps. Laws of 2018, Ch 516 amended CPLR 4511, effective December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of judicial notice of web mapping or global imaging websites such as Google Maps. Every court must take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented. The presumption may be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove. A party intending to offer the image or information at a trial or hearing must, at least 30 days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which the image or information may be inspected. No later than 10 days before the trial or hearing, a party upon whom the notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this provision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this provision, the court must take judicial notice of the image or information. Former subdivisions (c) and (d) were renumbered as (d) and (e). Laws of 2018, Ch 415 - Domestic Relations Law §11. Domestic Relations Law §11 was amended effective December 21, 2018, by adding a new subdivision 2-a which adds to the list of those persons who may solemnize a marriage, a member of the New York state legislature, provided that he or she does not charge or receive a fee. Laws of 2018, Chapter 362 Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter: Amended Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations regardless of the potential petitioner Amended Family Court Act § 736 to require that the school district or local educational agency be notified of the court proceeding and be allowed to participate and provide assistance where the court determines that such participation and /or assistance would aid in the resolution of the petition. Amended Family Court Act § 742 of the Family Court Act to permit the court to refer PINS proceedings to diversion agencies at any stage in the proceeding. To minimize the unnecessary filing of educational neglect petitions against parents, the amendment adds provisions that, in effect, establish a rebuttable presumption in favor of diversion. Amended the definition of educational neglect in Family Court Act § 1012(f) to require proof of parental failure to provide educational services to a child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to resolve educational problems through diversion a prerequisite to filing. Amended Family Court Act § 1031 to require that these efforts be recited in the petition, along with "the grounds for concluding that the education-related allegations could not be resolved absent the filing of a petition." Amended Family Court Act § 1035 to authorize Family Court to notify the school district or local educational agency and to allow their participation where the court determines that such participation and /or assistance would aid in the resolution of the petition. (See 2018 NY Legis Memo 362) Laws of 2018, Ch 60 - Family Court Act 842-a Laws of 2018, Ch 60, § 5, amended Section 842–a of the family court act to add rifles and shotguns to the list of weapons whose licenses may be suspended or revoked upon the issuance of a temporary order of protection or order of protection and to provide that upon the termination of any suspension order issued pursuant to this section, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun pursuant to paragraph b of subdivision five of section 530.14 of the criminal procedure law. Laws of 2018, Ch 55 - Family Court Act §821(1)(a) Family Court Act §821 (1)(a) was amended to add coercion in the third degree to the list of crimes that constitute a family offense. Laws of 2018, Chapter 218, Amended CPLR 2305 Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.” CPLR 2305(d) provides as follows: (d) Subpoena duces tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith. The amendment was effective immediately and applies to all actions pending on or after such effective date. Laws of 2018, Chapter 217 added CPLR 4540-a Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure. According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence. New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the rules of evidence at common law."). CPLR 4540-a, effective January 1, 2019 reads as follows: Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party. Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility. Laws of 2018, Chapter 235 adds new privileged communications Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege. Judiciary Law §498, new subdivision 2 reads as follows: 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents. Recent Legislation Family Court Act §812 (1) amended The opening paragraph of Family Court Act §812 (1) has been amended to add coercion in the third degree as one of the crimes that constitutes a family offense. In now reads as follows: The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, 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, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree, coercion in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following: Laws of 2018, Ch 55, Part NN, §5, Effective as provided in § 10 on November 1, 2018. Laws of 2017, Ch 35 amended the Domestic Relations Law to prohibit marriage of minors under seventeen years of age and amended the process to obtain court approval for marriage of persons at least seventeen years of age but under eighteen years of age. Domestic Relations Law § 15-a was amended to increase the age of minors who are prohibited from marrying to under seventeen years of age. Previously minors under fourteen years of age were prohibited from marrying. Domestic Relations Law § 13-b was amended to allow the solemnization of marriage of a party to be married to who is at least seventeen years upon the Court making written affirmative findings required under Domestic Relations Law § 15, subdivision 3. Formerly, the court could allow the solemnization of marriage by minor under sixteen years of age but over fourteen years of age. Domestic Relations Law §15, subdivisions 1(a), 2 and 3 were amended to require the town or city clerk to require each applicant for a marriage license to present documentary proof of age. In cases where it appears that either party is at least seventeen years of age but under eighteen years of age the process by which the written approval of a justice of the supreme court or a judge of the family court was obtained was amended to provide for, among other things: (i) the appointment of an attorney for the child for each minor party which attorney must have received training in domestic violence including a component on forced marriage; and (ii) prior to the justice of the supreme court or the judge of the family court issuing approval, the justice or judge must (1) provide notification to each minor party of his or her rights, including but not limited to, in relation to termination of the marriage, child and spousal support, domestic violence services and access to public benefits and other services (2) conduct, with respect to each party, including a minor party, a review of related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act, reports of the statewide computerized registry of orders of protection under section two hundred twenty-one-a of the executive law, and reports of the sex offender registry under section one hundred sixty-eight-b of the correction law, and (3) hold an in camera interview, separately with each minor party, and make written affirmative findings specified in subdivision 3, taking into consideration, among other relevant factors, the factors set forth in subdivision 3. The wishes of the parents or legal guardians of the minor intending to be married shall not be the sole basis for consent or approval under this subdivision. According to the Sponsor’s memorandum in support of this legislation parents force their children into marriages, citing reasons such as protecting "family honor," controlling the child's behavior and/or sexuality, and enhancing the family's status. Such reasons are reminiscent of the reasons for allowing girls age fourteen and over but under age sixteen to marry with court approval in 1929. The occurrence of child marriage is not limited to a particular culture or religion, but is widespread in the United States. Child marriage or forced marriage, or both, occur in families across faiths, including Muslim, Christian, Hindu, Buddhist, Sikh, Orthodox Jew, Mormon and Unification Church. Tactics such as threats of ostracism, beatings or death are used to force children to marry against their will. Under the Penal Law, a child under 17 does not have the capacity to consent to sex. It is statutory rape for an adult to have sex with a 16-year old but if he is married to her he can force her to have non-consensual sex as often as he likes. Marriage at any age before 18, undermines girls' health, education and economic opportunities, and increases their likelihood of experiencing violence. As a matter of public policy, no parent or court should be permitted to bind a child under the age of seventeen to a contract where the child lacks the capacity as well as the opportunity to consent. This legislation is intended to strengthen the process as applied to marriage of persons at least seventeen but under eighteen years of age. See 2017 NY Legis Memo 35. Chief Administrative Judge Adopts New Rules for Matrimonial Actions By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3). The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which is effective August 1, 2017, provides as follows: 202.50. Proposed Judgments in Matrimonial Actions; Forms * * * (b) Approved Forms. * * * (3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms: ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of ____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, * and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further * In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment]. ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such applications may be brought in the county where the judgment was entered; and it is further By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to add a new section 202.16-b.The new section addresses the submission of written applications in contested matrimonial actions. The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which is effective July 1, 2017, provides as follows: §202.16-b Submission of Written Applications in Contested Matrimonial Actions. (1) Applicability. This section shall be applicable to all contested matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law. (2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause shown: (i) Applications that are deemed an emergency must comply with 22 NYCRR §202.7 and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures. (ii) Where practicable. all orders to show cause, motions or cross motions for relief should be made in one order to show cause or motion or cross-motion. (iii) All orders to show cause and motions or cross motions shall be submitted on one-sided copy except as otherwise provided in 22 NYCRR §202.5(at or electronically where authorized, with one-inch margins on eight and one half by eleven (8.5 x 11) inch paper with all additional exhibits tabbed. They shall be in Times New Roman font 12 and double spaced. They must be of sufficient quality ink to allow for the reading and proper scanning of the documents. Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with these rules. (iv) The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law shall not exceed twenty (20) pages. Any expert affidavit required shall not exceed eight (8) additional pages. Any attorney affirmation in support or opposition or memorandum of law shall contain only discussion and argument on issues of law except for facts known only to the attorney. Any reply affidavits or affirmations to the extent permitted shall not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. (v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division). maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k))' all of which may include attachments thereto,all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All exhibits must contain exhibit tabs. (vi) If the application or responsive papers exceed the page or size limitation provided in this section, counsel or the self-represented litigant must certify in good faith the need to exceed such limitation, and the court may reject or require revision of the application if the court deems the reasons insufficient. (3) Nothing contained herein shall prevent a judge or justice of the court or of a judicial district within which the court sits from establishing local part rules to the contrary or in addition to these rules. By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060. (see https://childsupport.ny.gov/dcse/child_support_standards.html). Domestic Relations Law § 245 amended effective September 29, 2016 Domestic Relations Law § 245, which authorizes the remedy of contempt, pursuant to Judiciary Law §756 et.seq., to enforce a judgment or order for the payment of a sum of money awarded in a matrimonial action, was amended to allow an application for contempt to be made without any prior application for enforcement by any other means. The amendment eliminates the requirement of demonstrating presumptively, to the satisfaction of the court, in the order to show cause bringing on the application, that payment cannot be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242. Domestic Relations Law § 245, as amended, provides: § 245. Enforcement by contempt proceedings of judgment or order in action for divorce, separation or annulment. Where a spouse, in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or for the enforcement in this state of a judgment for divorce, separation, annulment or declaration of nullity of a void marriage rendered in another state, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt, and where the judgment or order directs the payment to be made in installments, or at stated intervals, failure to make such single payment or installment may be punished as therein provided, and such punishment, either by fine or commitment, shall not be a bar to a subsequent proceeding to punish the defaulting spouse as for a contempt for failure to pay subsequent installments, but for such purpose such spouse may be proceeded against under the said order in the same manner and with the same effect as though such installment payment was directed to be paid by a separate and distinct order, and the provisions of the civil rights law are hereby superseded so far as they are in conflict therewith. Such application may also be made without any previous sequestration or direction to give security or any application for enforcement by any other means. No demand of any kind upon the defaulting spouse shall be necessary in order that he or she be proceeded against and punished for failure to make any such payment or to pay any such installment; personal service upon the defaulting spouse of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient. (Laws of 2016, Ch 345, § 1, enacted September 29, 2016, and effective immediately as provided in §2.) Prior to the amendment the applicant had to establish presumptively in the affidavit in support of the application that payment could not be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242. or that these remedies would be ineffectual. Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention) Ratified. On August 30, 2016 President Obama signed the Instrument of Ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention). This is the first global child support treaty ratified by the United States. See http://www.acf.hhs.gov/css/resource/us-ratification-of-hague-child-support-convention Laws of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016. CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York. The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States. Laws of 2015, Chapter 567 (effective June 18, 2016) Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act. The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a): Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section. The following provision was added to Family Court Act §651: (c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article. Laws of 2015, Ch 447 Laws of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November 20, 2015, and applicable to all actions whenever commenced, to provide that an unrepresented litigant shall not be required to file an affidavit detailing fee arrangements when making an application for an award of counsel fees and expenses. However, as a condition precedent to not being required to file such affidavit the unrepresented litigant must have submitted an affidavit that he or she is unable to afford counsel with supporting proof, including a statement of net worth, and, if available, W-2 statements and income tax returns for himself or herself. According to the New York Assembly Memorandum in Support of the Legislation the purpose of the amendment was “to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.” New Temporary Maintenance Guidelines Apply Only to Actions Commenced on or after October 25, 2015 The new temporary maintenance guidelines apply in matrimonial actions commencement on or after October 25, 2015. Click on the following links to go to the New temporary maintenance calculator worksheet and calculator which appear on the New York Court System website. See Laws of 2015, Ch 269, which provides that section three of the act, which amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance Awards, “ shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.” The other sections of the Act are effective January 23, 2016. Click on this link for the Temporary Maintenance Calculator Worksheet for Use in Actions Commenced before October 25, 2015 Laws of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016. The statutory provisions for child support have been amended to reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee, so long as the order or agreement for such maintenance lasts. Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act § 413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an automatic adjustment to take effect upon the termination of the maintenance award. According to the New York Assembly Memorandum in Support of Legislation this addition would be based upon an amount already paid, e.g., an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments. Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act § 413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. According to the New York Assembly Memorandum in Support of Legislation this relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act § 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances." Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the timing of the adjustment of the Combined Parental Income Adjustment with the adjustment of the poverty income guidelines amount for a single person and the self-support reserve. Laws of 2015, Ch 369 Laws of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new Article 5-B of the Family Court Act. Chapter 369 was signed into law on September 25, 2015. Section 1 is effective on December 24, 2015. New Article 5-B to the Family Court Act applies to any action or proceeding filed or order issued on or before the effective date of new Article 5-B, consistent with new section 580-903 of the Family Court Act which shall be effective on January 1, 2016. Laws of 2015, Ch 269 Laws of 2015, Ch 269 amended Domestic Relations Law §236 [B][1][a], Domestic Relations Law §236 [B][5][d][7], Domestic Relations Law §236 [B][6], Domestic Relations Law § 248, Domestic Relations Law §236 [B][9][1], Family Court Act § 412, effective January 23, 2016, and amended Domestic Relations Law § 236 [B][5-a], effective October 25, 2015. [Click for a Commentary on the Amendments] Summary of the Amendments The amendments eliminated “enhanced earning capacity as a marital asset” for purposes of equitable distribution (Domestic Relations Law §236 [B] [5] [d] [7]) but did not eliminate as a factor the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. They adopted mandatory guidelines with formulas for the calculation of maintenance and spousal support awards, (Domestic Relations Law §236 [B] [6] and Family Court Act § 412), added actual or partial retirement as a ground for modification of post-divorce maintenance where it results in a substantial diminution of income. (Domestic Relations Law §236 [B] [9] [1]) and made Domestic Relations Law § 248 gender neutral. Income Cap Lowered The amendments lowered the income cap for the formula portion of temporary maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current $543,000 to $175,000 of the payor's income. An income cap of $175,000 cap applies to post-divorce maintenance awards and spousal support awards. Temporary Maintenance There is a new formula for determining temporary maintenance. In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties. The temporary maintenance award must terminate no later than the issuance of a judgment of divorce or the death of either party. This amendment is intended to clarify that the Supreme Court has the power to limit the duration of temporary maintenance. New Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and Spousal Support There are now mandatory formulas for the calculation of maintenance and spousal support awards. There are two formulas to be used in calculating maintenance and spousal support: one where child support will be paid and where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes. Those formulas are as follows: a. With child support where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; b. Without child support, or with child support but where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance. Post-Divorce Maintenance Guidelines The definition of income for post-divorce maintenance includes income from income-producing property that is being equitably distributed. Factors the court may consider in post-divorce maintenance now include termination of child support, and income or imputed income on assets being equitably distributed. There is an “advisory” durational formula for determining the duration of post-divorce maintenance awards. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age. Modification of Post-Divorce Maintenance Actual or partial retirement is a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income. Spousal Support Guidelines for Family Court Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The $175,000 income cap applies. The court may adjust the guideline amount of spousal support up to the income cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. A new factor for the court to consider in spousal support awards as well as maintenance awards is termination of a child support award. The Family Court may modify an order of spousal support upon a showing of a substantial change in circumstances. Unless so modified, spousal support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimonial proceeding, or the death of either party. This is not intended to change current law with respect to Family Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)). Effective Date The amendments become effective January 25, 2015 and apply to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions regarding temporary maintenance take effect October 25, 2015. |
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