The Matrimonial Strategist ® Volume 32, Number 2 • February 2014 Swimming in the How to Succeed in a Relocation Case Wake of Windsor By Jerome A. Wisselman and Eyal Talassazan

Evolving Employment Law here is a growing trend of custodial parents asking the courts to allow Impacting Family Law them to relocate with their children, taking them farther away from the Tnon-custodial parent. For example, in New York, like many metropolitan By Karen A. Kalzer areas, many different factors have led to this situation. These include: 1) the increase in the cost of living in the metropolitan area; 2) the inability of the cus- When the United States Su- todial parent to afford to remain in the jurisdiction on his or her income alone; preme Court announced its pair 3) difficulty in obtaining employment; and 4) a desire to relocate to reside near of same-sex marriage decisions family and friends. on June 26, 2013 (Perry v. Hol- What the Courts Say lingsworth and United States v. It can be a difficult task to persuade a court that it should permit the relocation Windsor), commentators began of a child. Some of the problems custodial parents can encounter in this regard to forecast the tsunami of tan- are illustrated by a lower-court case in which permission to move was denied. In gible changes that would re- In The Matter of Verhulst v. Putnam, a mother sought to relocate to northern Mas- sult. And as predicted, one of sachusetts with the parties’ son, purportedly because she wanted to reside closer the most prominent impacts has to her parents and was having difficulty finding suitable employment on Long been the effect on employment Island. The court, however, ruled against relocation and ordered the mother to law benefits and statutes, and remain on Long Island because it became clear during the trial that she primarily the expanded field of those who wanted to distance herself and the parties’ son from the father, to make it difficult can now access them. for him to have contact with their child. In sum, Edith Windsor sought Further, the mother failed to establish why she needed to move and why it was a refund of federal estate taxes, in the best interests of her child to relocate. Notably, although she alleged that which she had been required to she had lost her job on Long Island, she failed to provide any documentary proof pay following the death of her verifying why her employment was terminated, and also neglected to provide the wife. Ms. Windsor had married court with proof demonstrating her attempts to seek commensurate employment her same-sex spouse in Canada in the Long Island area. and the couple resided in New In addition, she failed to provide the court with a detailed parenting time York, which recognized the mar- schedule that would provide the father with a suitable amount of parenting time. riage. However, under the federal The court, in denying the mother’s petition, wrote: “Unfortunately, the mother’s Defense of Marriage Act (DOMA), continued on page 2 Ms. Windsor did not qualify as a “surviving spouse” and she was required to pay estate taxes. In This Issue Practitioners will recall that Relocation Cases: How the Windsor court invalidated To Succeed...... 1 Section 3 of DOMA, which had How Windsor Affects prohibited the federal govern- Family Law...... 3 ment from acknowledging same- and Money... 3 sex marriages and spouses even Windsor where those marriages had been Litigation...... 6 solemnized in states that recog- Practice Tip: Parental nized them as legal and valid. Illness ...... 7 But the Court did not invalidate

Section 2 of DOMA, and thus it continued on page 5 PERIODICALS Relocation contact with the non-custodial par- ent, the degree to which the custo- continued from page 1 The Matrimonial dial parent’s and child’s life may be ® anger at the father’s refusal to have a enhanced economically, emotionally Strategist continued relationship with her has and educationally by the move, and the feasibility of preserving the rela- CHAIRMAN ...... Willard H . DaSilva caused the mother to make every ef- DaSilva Hilowitz & McEvily LLP fort to minimize the father’s role in tionship between the non-custodial Garden City, NY parent and child through suitable EDITOR-IN-CHIEF ...... Stephanie McEvily [the child’s] life. To allow the mother EDITORIAL DIRECTOR . . . . Wendy Kaplan Stavinoha to relocate [the child’s] residence to visitation arrangements.” MARKETING DIRECTOR . . . Jeannine Kennedy Massachusetts would undermine the Expounding on that same theme, GRAPHIC DESIGNER . . . . . Evelyn Fernandez father’s relationship with [him] in a New York’s highest court, the Court BOARD OF EDITORS of Appeals, stressed in Tropea that way for which there is no appropri- LAURENCE J . CUTLER . . . Laufer, Dalena, Cadicina, ate means to ensure future contact courts should consider all relevant Jensen & Boyd, LLC, facts and circumstances when con- Morristown, NJ with the non-custodial parent.” MARIAJOSE DELGADO . . . Shemtob Law P .C . sidering a proposed relocation and Blue Bell, PA Helping Your Client should not be bound to the approach PAUL L . FEINSTEIN . . . . Paul L . Feinstein Ltd . With the Verhulst case in mind, Chicago it is obvious that when considering that had previously been used by the LYNNE GOLD-BIKIN ...... Weber Gallagher Simpson courts to determine relocation cases. Stapleton Fires & Newby LLP how best to help your client to relo- Norristown, PA cate with children successfully, sev- The court in Tropea wrote: JONATHAN W . Each relocation request must GOULD, PH .D ...... Psychologist eral factors must be taken into ac- Charlotte, NC count. As with any other legal issue, be considered on its own mer- FRANK GULINO . . . . . Private Practice its with due consideration of all Chatham, PA it is important to analyze court de- DAVID A . cisions that have both granted and the relevant facts and circum- MARTINDALE Ph .D . . . . . Forensic Psychological Consulting stances and with predominant St . Petersburg, FL denied relocation, taking a close CHARLES J . McEVILY . . . . DaSilva Hilowitz & McEvily LLP look at and addressing the factors emphasis being placed on what Garden City, NY outcome is most likely to serve MARK MOMJIAN ...... Momjian Anderer, LLC that were analyzed in the courts’ Philadelphia decisions. It is also imperative that the best interests of the child. REBECCA PALMER . . . . . Lowndes, Drosdick, Doster, While the respective rights of Kantor & Reed, P .A . thorough planning be implemented Orlando, FL concerning all of the various areas the custodial and non-custodi- JUDITH L . POLLER . . . . Pryor Cashman LLP al parents are unquestionably New York the court considers well before, and LLEWELYN G . not on the heels of, a hearing. significant factors that must be PRITCHARD ...... Helsell Fetterman LLP considered, it is the rights and Seattle, WA The ‘Best Interests’ Inquiry CURTIS J . ROMANOWSKI . . (Private Practice) needs of the children that must Metuchen, NJ When reviewing an application be accorded the greatest weight ROBERT E . SCHLEGEL . . . Houlihan Valuation Advisors for relocation, the court’s primary Indianapolis, IN since they are innocent victims ERIC L . SCHULMAN . . . . Schiller DuCanto and Fleck LLP focus must be on the best interests of their parents’ decision to di- Lake Forest, IL of the children. Martino v. Ramos, 64 MARTIN M . SHENKMAN . . (Private Practice) vorce and are the least equipped Paramus, NJ A.D.3d 657 (2nd Dept. 2009); Mat- to handle all the stresses of the LYNNE STROBER . . . . . Mandelbaum, Salsburg, P .C . ter of Tropea v. Tropea, 87 NY2d 727 West Orange, NJ changing family situation. JULIA SWAIN ...... Fox Rothschild LLP (1996). In Martino, the court stated: Philadelphia “Relocation may be permitted if the The Successful Case TIMOTHY M . TIPPINS . . . (Private Practice) Attorneys may be aware that relo- Latham, NY custodial parent demonstrates, by THOMAS R . WHITE 3rd . . . University of Virginia School of Law a preponderance of the evidence, cation may be possible if it can be Charlottesville, VA that the proposed move is in the established that the child’s quality WILLIAM R . WRIGHT . . . Wright Law Firm, P .A . Jackson, MS child’s best interests. When evaluat- of life will be improved if the custo- ing whether a proposed move will dial parent is permitted to relocate. The Matrimonial Strategist® (ISSN 0736-4881) is published by serve a child’s best interests, the fac- But what factors do courts consider Law Journal Newsletters, a division of ALM . © 2014 ALM Media, tors to be considered include, but when gauging quality of life? LLC . All rights reserved . No reproduction of any portion of this issue is allowed without written permission from the publisher . are certainly not limited to, each par- Certainly, the financial well-being Telephone: (877) 256-2472 ent’s reasons for seeking or oppos- of the family is important. In Wirth Editorial e-mail: wampolsk@alm .com v. Wirth, 56 AD3d 787 (2nd Dept. Circulation e-mail: customercare@alm .com ing the move, the quality of the rela- Reprints: www .almreprints .com 2008), the appellate court permit- tionships between the child and the The Matrimonial Strategist 023146 custodial and non-custodial parents, ted a mother to relocate with the Periodicals Postage Paid at Philadelphia, PA the impact of the move on the quan- parties’ child because of economic POSTMASTER: Send address changes to: ALM tity and quality of the child’s future factors. In Wirth, the court wrote: 120 Broadway, New York, NY 10271 “[T]he mother established by a pre- Published Monthly by: Jerome A. Wisselman is a partner Law Journal Newsletters ponderance of the evidence that in the Great Neck, NY, firm of Wis- 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103 the proposed relocation to Flor- www .ljnonline .com selman, Harounian & Associates, P.C. Eyal Talassazan is an associate ida was in the subject child’s best with the firm. continued on page 4 2 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial February 2014 How Windsor Has same-sex partners could easily keep require applicants to disclose their pensions hidden from one another. spouse’s assets or income. Made Hiding Money Under the Retirement Equity Act, The Supreme Court briefly ad- government and private employ- dressed this issue in Windsor, but Harder ees entitled to a traditional pen- focused solely on eligibility for fed- Anastasia Wincorn and sion must obtain spousal consent if eral student loans. The court’s rea- Philip Segal they wish to designate anyone other soning nonetheless applies to all than their spouse as the recipient federal programs that determine The Supreme Court’s decision in of the survivorship benefits of their eligibility based on a potential re- United States v. Windsor, 570 U.S. pension. Federal law also requires cipient’s household income, and has ___ (2013), which struck down as spousal notification before a mar- already been expressly taken up by unconstitutional Section 3 of the De- ried pension recipient can forego a number of agencies, such as the fense of Marriage Act (DOMA) (see survivorship rights. Department of Education and the article on page 1, infra), will hamper Similar to pension recipients, a Social Security Administration. same-sex spouses’ ability to hide as- married member of the military can- The Department of Health and sets from each other, from the gov- not opt out of the Survivor Benefit Human Services (HHS) announced ernment, and from the public. Plan, which requires them to pay in September 2013 that it had ad- Windsor invalidated the provision monthly premiums, unless his or opted the IRS’s state of celebration of DOMA that defined marriage as a her spouse has waived participation policy, which recognizes any legal union between a man and a woman in the plan in writing. Opting out gay marriage regardless of the cou- for the purposes of federal law. The of the Survivor Benefit Plan means ple’s state of residency. However, case involved tax law and the right a higher monthly paycheck for ser- because Medicaid and other HHS of legally married same-sex couples vice members. programs are administered through to provide tax-free bequests to their Under DOMA, two people of the unique federal/state partnerships, spouses. Because DOMA’s definition same gender could not be “spouses” HHS declined to impose a state of of “marriage” and “spouse” applied under federal law. They were there- celebration rule on its partner states, to all federal laws, the impact of its fore exempt from the spousal notifi- but instead permits states to deter- demise has resonated throughout cation rules. They also had no right mine their own policies regarding the federal government. to review their spouses’ beneficia- whether to recognize same-sex mar- Now, not only do same-sex cou- ry designation. Same-sex couples riages. This makes for a confusing ples get many of the federal bene- could easily hide benefits or take in and potentially conflicting set of fits other married couples do, they substantially higher military pay, all rules to follow, and little certainty are burdened with the same re- while keeping one another in the for same-sex couples who wish to strictions: It is now harder to hide dark. Now that DOMA’s definition take advantage of HHS programs. money or avoid sharing money in a of “spouse” has been struck down, Nonetheless, one thing is clear: same-sex marriage than it was be- same-sex spouses will need to pro- Individuals in same-sex marriages fore the Court’s decision. vide their consent before their part- who live in states that permit gay Pensions and Military ners can fritter away their nest egg. marriage and who wish to apply for This means that service members Medicaid benefits will need to do so Survivor Benefits in same sex marriages could, in the as a couple, not as individuals. This Pension income is often one of past, opt out of the Survivor Ben- benefits the couple if the ill spouse the largest assets in a marriage, and efit Plan and keep the premiums has a higher net worth than the well a single life pension without sur- for themselves, all without telling spouse, who can shield a certain vivorship benefits results in much their spouses. Now, they must no- amount of the ill spouse’s money higher monthly payouts to the pen- tify their spouses of the existence of from Medicaid spend-down require- sioner than a joint pension with sur- this valuable marital asset, and must ments. If the healthy spouse’s in- vivorship rights. Until now, married get a written waiver before they can come is higher, then the couple will Anastasia Wincorn is an attorney elect to forego survivor benefits. be in a worse position than they and case manager with Charles Federal Aid and Individual would have been in terms of their ability to retain assets while collect- Griffin Intelligence LLC in New York Benefit Programs City. Philip Segal is the founder of The end of DOMA’s definition of ing Medicaid benefits. Charles Griffin Intelligence, which marriage also means that married Whether they are financially specializes in fact investigation for gay couples will now have to dis- helped or harmed by the new rules, lawyers. An attorney, he spent 19 close their spouse’s income on ap- same-sex spouses who apply for years as a journalist with The In- plications for federal benefits that Medicaid will now need to disclose ternational Herald Tribune, The are allocated based on household far more information about their Wall Street Journal, The Economist income. Under DOMA, the agencies personal finances both to the HHS Group, and NBC News, among oth- that administer federal entitlement and to their partners under HHS’ ers. He can be reached at philip@ programs did not recognize same- current policies. charlesgriffinllc.com. sex marriages, and thus did not continued on page 4 February 2014 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial 3 Windsor and Money in Windsor pointing out the gaps in Homeland Security (DHS), the De- federal ethics laws as applied to gay partment of Defense, the Securities continued from page 3 couples. In its decision, the Supreme and Exchange Commission (SEC), Court specifically mentioned DOMA’s the Department of Labor (DOL), the Federal Ethics Laws inequitable effects on the federal Employee Benefits Security Admin- Prior to Windsor, DOMA exempt- government’s ability to enforce eth- istration, and the Federal Election ed same-sex spouses of government ics rules in reaching its conclusion. Commission, among others. employees from certain federal eth- The Office of Government Ethics has Since Windsor, both the DOL and ics laws, which meant that all of the since issued guidance providing that the Employee Benefits Security Ad- spouse’s financial information and ethics rules will be equally applied to ministration, which enforce ERISA ties to particular donors or industries same and opposite-sex couples, and and other federal laws relating to could remain safely shielded from the Federal Election Commission has pension plans, have adopted policies public view. For example, as the de- issued advisory opinions stating that expressly acknowledging any same- cision mentions, federal law man- legally married same-sex couples are sex marriage that is valid in the state dates that executive branch officials spouses for the purpose of FEC regu- in which it was solemnized, regard- and federal judges recuse themselves lations. less of whether the state where the from working on matters in which Post-Windsor Developments couples resides permits gay marriage. their spouse has a financial interest. Soon after Windsor, the IRS and the The Department of Defense also ad- Additionally, spouses of senators and Treasury department announced that opted a “state of celebration” rule senate employees cannot accept cer- they would recognize all same-sex soon after Windsor. However, Title 38 tain high-value gifts and honoraria. marriages performed in states that of the U.S. Code, which included lan- Same-sex couples were also exempt recognize those marriages as valid guage defining marriage as between from complying with rules concern- even if the couple lived in a state that a man and a woman, impeded the ing financial disclosures, nepotism, did not consider them legally mar- Defense Department and the Depart- lobbying, and insider trading. ried. The policy is especially helpful ment of Veterans’ Affairs from provid- In 2010, the House ethics commit- because Windsor left standing a pro- ing health and survivor benefits to tee attempted to implement rules vision of the law permitting states to same-sex spouses of service mem- defining married same-sex couples refuse to recognize same-sex marriag- bers. In early September, Attorney as spouses for the purposes of con- es that are legally performed in other General Eric Holder announced that gressional financial disclosure rules. states. Couples wed in states that per- the executive branch would no longer The rules were roundly rejected by mit gay marriage will thus have more enforce the law, and would remove advocates for and against gay mar- or less uniform access to the benefits all impediments to providing benefits riage alike. Those opposed to gay and obligations that flow from Wind- to same-sex couples. marriage pointed out that the rules sor and its consequent shifts in fed- The Department of Defense has contradicted DOMA. Those in fa- eral policy. also created a special category of vor of gay marriage objected to the An increasing number of fed- leave for people who wish to take rules because they imposed the ob- eral entities are adopting state of advantage of the department’s new ligations of marriage on gay couples celebration policies. Agencies that benefit policies. Individuals who are that were not afforded the same have followed the IRS and Treasury stationed in states that do not per- benefits and privileges that straight Department’s lead include the Of- mit same-sex marriage can take a married couples enjoy. fice of Personnel Management, the brief leave to get married in a state Citizens for Responsibility and Eth- U.S. Citizenship and Immigration that allows gay marriage. ics in Washington filed an amicus brief Services under the Department of —❖— Relocation family court should have granted her in raising the children, and would her permission to relocate. also provide her with free babysitting continued from page 2 The proximity of relatives or oth- while she worked. The mother did interests [citing Matter of Tropea, su- ers who can help care for a child not have any immediate relatives in pra]. Economic necessity … may pres- can also be a good factor to ar- the Long Island area, the place from ent a particularly persuasive ground gue when seeking relocation. For which she wanted to move. for permitting the proposed move.” example, in Blundell v. Blundell, 150 It can also be helpful if your cli- The court found that the mother AD2d 321 (2nd Dept. 1989), the Ap- ent is willing to be flexible with amply demonstrated that, even if pellate Division reversed the ruling of visitation by proposing to expand she were to obtain full-time employ- the lower court and allowed the ap- it, rather than limiting it as a result ment at a salary commensurate with pellant mother to relocate to London- of the proposed relocation. In Ma- her prior employment, she could not berry, NH, where she owned a home thie v. Mathie, 65 A.D.3d 527 (2nd afford both an apartment and day- and had strong family ties. The moth- Dept. 2009), the court permitted the care fees on Long Island, where the er successfully argued that she want- relocation of the appellant mother father was then living. Therefore, ed to live closer to her parents and from Merrick, NY, to Marlboro, NJ, the appellate court found that the brother because they would assist continued on page 6 4 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial February 2014 Same-Sex Benefits same-sex couples as have been tra- benefits: one’s parents, or the sur- ditionally afforded to opposite-sex viving same-sex spouse. In Cozen continued from page 1 married couples. Additionally, even O’Connor v. Tobits, the parents of a did not require states to recognize as to private employers, reimburse- deceased Cozen O’Connor employ- same-sex marriage. The question ment under a flexible spending ac- ee, Sarah Farley, argued that DOMA that immediately followed that deci- count (FSA), health reimbursement prevented the law firm’s Profit Shar- sion centered on what rights same- account (HRA) or health savings ac- ing Plan (Plan) from recognizing sex spouses have regarding their count (HSA) may be made for cov- and providing benefits to Ms. Far- spousal employment benefits, es- ered expenses of same-sex spouses ley’s same-sex spouse (Jean Tobits), tates, and family leave requirements. and their children on a tax-free ba- despite the fact that the couple le- Answers are beginning to roll in as sis for federal tax purposes to the gally married in Toronto, Canada, noted below. same extent as available to oppo- in 2006. The Plan defined “Spouse” as “the person to whom the Partici- Federal Employee Benefits site-sex spouses. Moreover, same- pant has been married throughout The Office of Personnel Manage- sex spouses are eligible for special the one-year period ending on the ment (OPM) announced on June enrollment rights under the Health earlier of (1) the Participant’s an- 28 that under Windsor, same-sex Insurance Portability and Account- nuity starting date or (2) the date spouses of federal employees and ability Act (HIPAA) and applicable of the Participant’s death.” Ms. Far- annuitants are eligible for cover- change-in-status events under Inter- ley’s parents argued that they, and age under the federal government's nal Revenue Code Section 125. not Ms. Tobits, were entitled to the benefits programs. OPM prom- Family and Medical death benefits under the Plan as Ms. ised to ensure “swift and seamless Leave Act Tobits was not a “spouse” per Penn- implementation” of the Court’s rul- On Aug. 9, 2013, Labor Secretary sylvania law. ing. This includes extending fed- Thomas Perez issued a staff memo In this matter, at the time of Ms. eral health benefits to spouses and advising that the Department of La- Farley’s death, the couple actually children of same-sex marriages, rec- bor (DOL) had updated its guidance resided in Illinois, where same- ognizing spouses and children of documents to affirm the availability sex unions are recognized, but the same-sex marriages as eligible fami- of spousal leave based on same-sex Profit Sharing Plan in question ly members to federal life insurance marriages under FMLA. Perez noted originated and was administered in coverage, use of Flexible Spending that “this is one of many steps the Pennsylvania, which does not. The Accounts for claimed medical ex- Department will be taking over the court found that Pennsylvania law penses for their spouses and chil- coming months to implement the was preempted under the Employ- dren, and eligibility for federal long Supreme Court’s decision” and that ee Retirement Income Security Act term care insurance. the Department will “look for every (ERISA), which promotes the prin- Additional Benefits Impacts opportunity to ensure that we are ciple of maintaining national unifor- As noted above, other benefits implementing this decision in a way mity among benefit plans. The court programs that are affected by fed- that provides the maximum protec- determined to apply the law of Illi- eral law are likely to have an impact tion for workers and their families.” nois and to award the death benefit on private employers, as well as ‘State of Celebration’ to Ms. Tobit. those employed by the federal gov- Decisions In the second matter, the federal ernment. That is, the federal laws As discussed above, because district court in Ohio even more governing employee benefit plans Windsor does not force any state directly looked to the “state of cel- will require companies to treat em- to adopt same-sex marriages (cur- ebration” as the appropriate ap- ployees’ same-sex spouses equally rently, 13 states and the District of proach to determine the validity of as opposite-sex spouses. Columbia recognize them), ques- a same-sex spouse claim. In Oberge- For instance, health benefits under tions immediately arose as to when fell v. Kasich, a same-sex couple had programs such as the Consolidated a marriage would be valid and a lived together for 20 years in Ohio, Omnibus Budget Reconciliation spouse recognized for purposes of which does not recognize same- Act (COBRA) will now afford the benefits where the union was val- sex marriage even if the couple has same rights and benefits to married idly formed in one state that rec- married in another state. The couple had traveled to Maryland to marry, Karen A. Kalzer practices profes- ognizes such marriages (“state of a state that does recognize same- sional and employment liability de- celebration”) but the couple resides sex marriage. One of the spouses, fense in Seattle’s Helsell Fetterman. in a state that does not. Two federal Mr. John Arthur, was in hospice Her clients have included private courts have thus far examined the care for the final stages of life, and employers, religious organizations, issue. he did not wish to be identified as child caring agencies, schools, and First, the federal district court in “unmarried” in state documents, non-profits. Reach her at kkalzer@ Pennsylvania determined who had helsell.com. rights to a same-sex spouse’s death continued on page 8

February 2014 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial 5 l i t i g at i o n FL Supreme Court state were same-sex marriage is protection against the automatic re- barred. linquishment of parental rights that Rules on Lesbian The majority in the closely watched it affords to heterosexual unmarried dispute, decided the case on federal couples.” Custody Case equal protection and state privacy Pariente said that the mother who A lesbian mother who separated grounds. Three justices dissented. took the child to Australia, identi- from her partner does not lose her Justice Barbara J. Pariente, writing fied in court records only as D.M.T., parental rights to a child born during for the majority, said the decision re- is not being denied her right to par- the relationship, a divided Florida lied on “longstanding constitutional ent. The decision only requires that Supreme Court ruled in November law that an unwed biological father her estranged partner T.M.H.’s right 2013. The 4-3 opinion strikes down has an inchoate interest that devel- to parent be recognized. the state law on assisted reproduc- ops into a fundamental right to be a “D.M.T.’s preference that she par- tive technology as unconstitutional, parent, protected by Florida and U.S. ent the child alone is sadly similar and affirms a decision by the Fifth Constitutions, when he demonstrates to the views of all too many par- District Court of Appeal upholding a commitment to raising the child.” ents, who after separating prefer to parental rights for same-sex couples The statute is unconstitutional as exclude the other parent from the who jointly conceive a child. applied under due process clauses child’s life,” she wrote. The birth mother had moved to of the state and federal constitutions The case was distinct both for its Australia and had cut access to the and the privacy provision of the approach to the subject of same-sex child born in 2004. The estranged Florida Constitution, Pariente said. rights and parental rights involving partner, whose fertilized egg was The law also violates federal and conception by artificial means. — used in the pregnancy, challenged state equal protection law “by deny- Daily Business Review the loss of rights and access in a ing same-sex couples the statutory —❖— Relocation the father would have under the schools, child-care options, new custody arrangement would in the general environment and continued from page 4 fact improve the child’s, and the fa- extracurricular activities. Also based upon the custodial parent’s ther’s, quality of life. to be considered here are the offer of a liberal parenting time Considerations manner in which finances arrangement to make up for the Successful applicants for the right will be affected, and how the missed weekday visits of the non- to relocate with their children are change in location will benefit custodial parent. With regard to the likely to give consideration to the the children’s standard of liv- respondent father’s loss of weekday following, and include them in their ing; and contact, the court wrote: “While the petitions: • A showing that the relocating weekday contact with the defendant • A detailed parenting time parent is cooperative and will is neither trivial nor insignificant, a schedule that grants the non- accommodate the non-custo- visitation schedule could be devised custodial parent an equal or dial parent’s access to the chil- that would allow for the continua- greater amount of parenting dren and to their activities. tion of the meaningful relationship time than was provided for Conclusion between defendant and his son.” in the original time arrange- It is important to discuss these is- The court noted that the plaintiff ment; sues with your client as soon as pos- had proposed a liberal visitation • A proposal for pick-ups and sible, so that he or she may take the schedule that would substantially drop-offs that will alleviate steps necessary to meet the criteria expand the father’s visitation time the non-custodial parent’s ob- set forth in the applicable case law. with his son when compared with ligation to travel prolonged With advance planning and a care- the schedule set out in the parties’ distances to see the children; ful gathering of evidence, you and stipulation. The father would be • Provision for monetary cred- your client can better present the able to see his child during alternat- its that the non-custodial par- court with the evidence it will need ing school recesses, long weekends ent will receive for the costs to find that a move is in the child’s and summer vacations. “Indeed,” of securing parenting time best interest. As we saw in Verhulst, said the court, “the amount of qual- in the custodial parent’s pro- a general, unspecific presentation to ity time the defendant would spend posed new domicile; the court is unlikely to give him or with [the child] would actually in- • Proof of how the children’s her the chance to move to a new lo- crease notwithstanding the loss of life will be enhanced by the cation, even if the move might argu- the weekday evening visits.” In this move, which would require ably have benefited the child. case, the court was able to come to researching the quality of the ❖ the conclusion that the added access proposed new neighborhood, — — 6 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial February 2014 P r a c t i c e T i p Parental Illness tial support network of relatives re- emotional damage irreparable. siding within minutes of her home. The fact that the parties are di- And Custody The Mother, at age 46, was diag- vorced, and live relatively far nosed with Stage IV breast cancer, apart, only further complicates By Robert A. Epstein for which she was hospitalized and matters for the children. then discharged. The court then took the Father to To what extent can a parent’s ill- The Father immediately filed an task for his application while pro- ness can have a bearing on a pend- emergency application for a transfer viding some guidance, noting: ing custody decision or existing cus- of custody based on the Mother’s ill- When a non-custodial parent tody arrangement? Often, the illness ness, arguing that the change was files an application alleging a is of a mental nature, where one necessary to protect the children necessity to immediately trans- parent will argue that the other par- from irreparable harm. The Mother fer custody away from parent ent is unfit to care for the children reasonably acknowledged, in op- with a terminal illness, such because of that parent’s history of posing the Father’s motion, that her application must at the very mental illness, psychological/psy- condition could deteroriate in the least logically acknowledge chiatric treatment and/or use of pre- future to the point that she could no and address the critical ques- scription medications to treat such longer care for the children, and that tions of whether such imme- an illness (or lack thereof, which a transfer would possibly be neces- diate transfer of custody may also often comes into the equation), sary at some point — just not yet, cause the children serious and and more. What happens, however, and that her nearby relatives could irreparable emotional trauma, when the illness is physical in na- assist her in caring for the children and how the non-custodial par- ture? (physically, emotionally, and finan- ent specifically proposes to For instance, what if one parent cially). The Mother’s two treating handle such trauma under the is diagnosed with cancer? That was doctors confirmed that the cancer circumstances. Failure to ad- the issue presented in the newly was incurable and terminal, but dress these issues leaves a gap- published trial court decision, A.W. that she was “presently stable and ing hole in the application, and v. T.D., in New Jersey. The most fully functional,” her judgment was may reflect poorly on the non- important question that the court not impaired by her taking of pre- custodial parent’s ability to fully will face in addressing the issue is scribed medication, and she could grasp and understand the grav- whether — under the specific facts continue caring for the children. ity of the situation which young and circumstances at issue — the children may face when their Court’s Decision diagnosed parent can still appropri- The court not only found that the primary caretaker is dying. In ately care for the child’s health, safe- Mother was able to continue as pri- this case, notwithstanding the ty and welfare. In other words, are mary custodian but that, in fact, the clear need for careful explora- the best interests of the child still tion and consideration of the children could suffer “immediate protected by the existing arrange- children’s emotional needs at and irreparable” harm should the ment? If not, then a change may be this time, [Father’s] emergent transfer occur — indeed, the exact necessary, through no fault of the ill custody application fails to sat- opposite of what the Father was try- parent. isfactorily reflect any real and ing to prove: “The harm at issue is thoughtful discussion or ac- Facts not physical harm, but emotional knowledgement of this issue in In A.W., the parties shared joint harm resulting from a forcible, pre- any meaningful way. legal custody of the three children, mature separation of the children The court also found that the Fa- and the Mother served as the pri- from their dying mother and prima- ther completely failed to provide mary residential custodian and care- ry caretaker.” The court added: any plan as to how the children taker. The parties lived more than In this case, the parties’ chil- would continue to see the Mother three hours away from each other, dren may have a tremendous if he were awarded custody, fur- although the Mother had a substan- emotional need to remain with ther failing to address the potential defendant, and to spend as Robert Epstein is a member of Fox emotional impact upon the children much time with her as reason- Rothschild’s Family Law Practice in — of which the court actually took ably possible under the circum- Roseland, NJ. He represents clients what is called “judicial notice” under stances. For the children, the in all stages of family law litigation the Rules of Evidence, and failed loss of this opportunity during and his practice involves all aspects to initiate any sort of discussions what may be the final stages of family law. He may be reached at or transition plan, including any [email protected] or 973- of defendant’s life may be ir- 994-7526. replaceable, and the resulting continued on page 8 February 2014 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial 7 Practice Tip becomes medically necessary, Father was to be provided with up- such transfer may take place un- dates on the Mother’s condition. continued from page 7 der amicable terms, which have Conclusion notion of meeting with therapists or been cooperatively constructed The decision strongly hints at the other professionals to address the and consensually arranged by court’s displeasure with the Father, situation. The court, as a result, con- two caring parents in advance implying that his application was cluded: of a medical emergency. The less a product of emergency circum- [G]iven defendant’s diagnosis, it terms of such arrangement stances and more of an acrimonious is appropriate for the parties, as can be reduced to a proposed relationship between the parents. joint legal custodians and par- consent order submitted to the Sympathizing with and understand- ents, to attempt to constructive- court. Of course, any such joint ing the Mother’s position, and the ly communicate with each oth- arrangements should logically children’s needs, the emotions liter- er, and jointly and responsibly contain provisions for the chil- ally spill out onto the pages of the prepare and develop a mutually dren to have ongoing counsel- decision, and the underlying guid- acceptable contingency plan for ing, and should further include ance for how to proceed in such implementation of a possible as many reasonable opportuni- an extremely delicate situation is future transfer of custody, if and ties as medically possible for clear. It is an unfortunate reality that when medically necessary. … the children to maximize their emergency applications to transfer In this case, the children’s in- remaining time with their moth- custody often do not include the de- terests can be positively served er under the circumstances. gree of thought and concern sought if both parents jointly and con- The court then actually modified by the court from the Father in this sensually select a child psy- the summer parenting time sched- matter. chologist or therapist who can ule to provide the Father with lon- —❖— ger stretches of parenting time, and provide them with important The publisher of this newsletter is not engaged in rendering indicated that it would interview the legal, accounting, financial, investment advisory or other professional guidance on joint- professional services, and this publication is not meant to children at the end of the summer constitute legal, accounting, financial, investment advisory ly helping the children through or other professional advice. If legal, financial, investment advi- this ordeal. In this fashion, if regarding their access to the Mother sory or other professional assistance is required, the services of a competent professional person should be sought. and when a transfer of custody and their general well-being. The Same-Sex Benefits will require Supreme Court resolu- a few select states. Although extend- tion remains to be seen. It is un- ing health care or other benefits to continued from page 5 clear how legally married same-sex same-sex unions has grown dramat- specifically, a death certificate. Mr. couples who reside in a state where ically in the last decade, this deci- Arthur also wished his spouse to be same-sex marriage is not recognized sion may well trigger the domino recorded as a “surviving spouse.” should be treated for purposes of effect in other hold-out employers. Ohio does recognize certain op- federal law, including spousal ben- Final Watch Words posite-sex marriages that are not efits under pension plans and the Employers that do not clearly lawful in Ohio but which have been taxation of medical, dental and vi- define “spouse” and “dependent” lawfully performed in other states, sion benefits. under their retirement and welfare such as marriages of first cousins Public Business Decisions plans are vulnerable to challenges or minors. The Ohio court held that On Aug. 27, the nation’s largest by same-sex spouses and partners treating opposite-sex out-of-state private employer, Wal-Mart (the if the employer denies benefits to marriages differently from same- largest employer being the federal such spouses and partners. Family sex out-of-state marriage violates government), quietly announced law practitioners should also take the U.S. Constitution’s guarantee of its decision to provide benefits to heed and review the use of the equal protection. Thus, the court same-sex couples in all states, not term “spouse” in each of their cli- ordered the Ohio Registrar not to just states that recognize same-sex ent’s benefit programs to determine accept any death certificate that marriage. This expansion embraces whether they intend or are required identified the deceased spouse as not only recognized marriages, but to cover same-sex spouses and part- “unmarried.” also domestic partnerships. Wal- ners, regardless of whether the cou- Whether the approach of these Mart cited the need for a consis- ple resides in a state that recognizes two courts marks a trend or merely tent policy throughout the United same-sex marriage. the beginning of a circuit split that States, not one that applied in only —❖—

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8 The Matrimonial Strategist ❖ www.ljnonline.com/ljn_matrimonial February 2014