“Salt-and-Pepper” Divorces: The Fight for Control When Long-Term Couples Split (Part I)

Stacy D. Phillips 

With the recent announcement that Bill and Melinda Gates, one of the wealthiest couples in the world, were divorcing after nearly three decades of marriage, I have seen an increase in interest in what the media refers to as “gray” divorces, or marriages that end after 25 to 35 years. Personally, I prefer the term “salt-and-pepper” divorce because most often these couples are not considered elderly. After more than a year of limited mobility and social distancing, many couples have felt that they have spent practically another lifetime together at home. The COVID-19 pandemic has brought many couples closer together, but for others it has exacerbated tensions that have existed under the surface, often for decades. With time and soul-searching over the past year and especially now that COVID-19 restrictions are now being relaxed and lifted across the U.S. and much of the world, many older couples are building the courage to address the six big issues that I identified in my book, Divorce: It’s All About Control – How to Win the Emotional, Psychological, and Legal Wars, as the main causes of divorce. In Part I of this two-part series I discuss how salt-and-pepper couples approach three of these issues—money, property, and wealth; children; and health. Part II will focus on loss of love/intimacy; growth; and fear.

Money, Property, and Wealth

One of the biggest distinctions of salt-and-pepper (and gray) divorces is that couples in long-term marriages are more likely to divorce at or near the end of accumulating income from their prime working years. When older couples approach divorce and separation, each spouse is acutely aware that after the split, whatever assets are left may have to last them the rest of their lives. In particular, a spouse who was the non-earner during the marriage may not be able to force the other spouse who is at or past common retirement age to continue working to pay spousal support. What may be more likely to be left for salt-and-pepper couples that are no longer earning income from working is passive income from assets that are subject to capital gains tax if sold. In light of the impact of COVID-19, there are many couples who have income tied to previously cash-producing real estate assets that have taken a hit due to rent abatement, rent freezes, and eviction moratoriums. When the lockdowns began at the beginning of the pandemic, I noticed that many people either held off on initiating a divorce or filed for divorce because lower asset valuations were to their advantage. Now that the pandemic restrictions are ending and businesses are reopening, I am still seeing a good number of people waiting to see if the economy and the value of their assets will fully stabilize before pursuing a divorce, or they are jumping on the depressed economy to try and extract a valuation advantage.

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Keeping Your Sanity during a COVID Custody Fight

Stacy D. Phillips

As we mark one year since the first shelter-in-place orders were imposed, there is practically no part of divorce that the COVID-19 pandemic has not impacted. In too many ways, the frustration at our lack of control over the events of this last year and now well into the first quarter of 2021 has exacerbated the emotional, psychological, and legal wars of separation and divorce. A particularly active battlefield where control becomes a constant tug-of-war has been the highly charged disagreements that come with fights over child custody.

With tensions as high as ever, I have taken note that many of my divorce cases that would normally settle are not settling—not just the ones involving custody. Moreover, as tensions are higher than usual, parents who are separating or divorcing are now, all too often, using disagreements over their children to score points against their ex-partner. Making matters worse, these unhappy couples have often been stuck in the same household without the normal boundaries between life and work or they may be living in separate homes but do not look at COVID-19 protections the same way, causing an accelerated unraveling.

Keeping sane during a custody fight is not easy, and especially so during COVID-19. It requires positive thinking, setting aside pettiness, and finding creative solutions that are in the best interest of your children. Despite the ongoing uncertainties of managing this school year, securing vaccine appointments for loved ones, and worrying about our health and safety, there are many ways to keep your cool during one of life’s most stressful and unfortunate circumstances.

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Promoting Peace during the Holidays

Stacy D. Phillips

There is almost nothing else that brings underlying family tensions to a head quite like the holidays. For separating, separated, divorcing, and divorced families, this time of year can be highly emotional and stressful. The primary reasons that personal relationships break down—mismatched value systems and power struggles over things big and small—are often on display at the Thanksgiving table or when planning Christmas/Hanukkah gifts for your children or in deciding which side of the family to visit at which time.

We can anticipate that, much like everything else 2020 has impacted, this year’s family in-person and virtual gatherings may be uniquely high on tension and disagreement. Many people are anxious about their health amid another rise in COVID-19 cases or uncertainties surrounding their personal financial situations in the current economy. Add in the political and social unrest in this country and you have a recipe for feeling like you have a lack of control over what is happening in your world.

Like addressing the emotional, psychological, and legal wars of separation and divorce, finding peace during the holidays often requires responding rather than reacting, positive thinking instead of negative strategies, and finding new peaceful solutions to ongoing differences. Despite the political, cultural, and public health uncertainties, there are many opportunities to making the 2020 holiday season a peaceful one.

Reach Out & Be Kind

At the beginning of the COVID-19 lockdowns, people were more likely to empathize with each other, make sacrifices, and reach out to each other with a heightened sense of humanity to say: “we are in this together.” Now that we are nearly nine months into the pandemic, many people, especially those that are separating and divorcing, are fighting over things that are not quite earth-shattering and hating each other with a vengeance.

This holiday season remember that people are struggling, whether impacted by COVID-19 or those who lost work. In addition to focusing on what you can do for others by making that extra donation to the food bank and expressing gratitude to doctors, nurses, first responders, and essential workers, call and check in on family and friends. They may be having a tougher time with loneliness than anyone realizes. When you look back on this time many years from now, you will want to remember the holidays as a positive time when you could focus on others and set aside the strife.

Cooperate to Make New (or Simplify Old) Traditions

If there was ever a year to be flexible and cooperate with your ex for the good of your children, 2020 is it. Many of us will experience frustration that, because of COVID-19, we cannot have the same large family gatherings or have our children easily split time between both parents.

Although nobody knows when the pandemic will end, we will all have to find patience and adapt to the current circumstances. That does not mean old traditions need to end and we should resign ourselves to being alone. Instead, there are new opportunities to see relatives from both your and your ex’s families via Zoom and find creative ways to share time with old friends and family members and carry out old traditions together virtually. Make time for your ex’s family and in-laws if you can, even if only online. When deciding who to have at your table (safely!) or which relatives to invite to Zoom, be as inclusive as possible.

Take Care of Yourself COVID-19 has taken a heavy toll on us physically and psychologically. Not only has the disease directly impacted many of us, but we have all been hit with fatigue and stress. Many of us have been rightfully concerned about others and may be caring for someone else during this time, but do not forget that your physical and mental health matters too. Find time to engage in more of what you love about the holidays. Continue to get regular and proper exercise to vent frustration, tune up your mind and body, and give yourself more energy to face challenges. When you have taken care and control of yourself, it is that much easier to let the happiness and positive energy from the holidays happen.

Mediation for Family Law Disputes—Is It a Cure-All, a Band-Aid Precursor to Litigation, or Something in Between?

Alan R. Feigenbaum

If during the ongoing COVID-19 pandemic you, and/or your spouse, have made the decision to part ways, then there’s a good chance you have considered or read about mediation as a potential way forward. Mediation, including online mediation, is seemingly all the buzz right now. It has become an integral part of the judicial systems in California, Florida, New Jersey, Pennsylvania, and New York.

Think before you act. All else being equal—if you were asked whether you prefer to “mediate” or “litigate,” you probably would choose the former. What you should consider, carefully, is whether or not your family dynamic and your relationship with your soon-to-be ex-spouse is suitable for mediation.

What are the factors to consider when you make your decision? What due diligence should you undertake before saying “yes” or “no” to mediation? Cost is an obvious factor, but let’s dig deeper. Start by asking a simple question: how did your spouse treat you during the marriage—emotionally, financially, as a parent, as a partner? If the answer to all of these categories is resoundingly awful, then think twice about mediation. It may be emotionally taxing to dredge up what has played out during your marriage when you make this calculus, but the alternative is to dive right into the process, cold. Continue reading

Perhaps Your Biggest Asset Following Divorce: The Bank Account of Emotional Capital

Alan R. Feigenbaum

A necessary part of every divorce action is financial disclosure in the form of a “Statement of Net Worth,” in which a client details their assets, liabilities, and monthly expenses. When clients send the form back, we attorneys are laser-focused on whether each and every asset and liability has been disclosed: bank accounts, business interests, real estate, whole life insurance, loans, mortgages, etc.

What you will not find on any Statement of Net Worth is what I have come to call the Bank Account of Emotional Capital. I’m sure you’re wondering how we go about defining this mysterious, intangible asset. Very simply: what you have in this invisible but quite essential account represents your ability to transition to the next chapter of life—after divorce.

Each divorce case is unique. Everyone’s familial circumstances are unique. There will always be divorce cases that do not lend themselves to a resolution prior to trial. That said, in many divorce cases, the time will come when the attorney can see an “Exit” door for their client, meaning a path to resolving the dispute, well before trial is on the horizon. When that happens, the opportunity to make a sizeable deposit to a client’s Bank Account of Emotional Capital is there for the taking. Continue reading

Coronavirus Reality Checks: Surviving Divorce or Separation during the Pandemic

Marilyn B. Chinitz

Amid these unusual times, everybody has on their minds the ripple effects of COVID-19 because we know it has infected everything. Divorcing individuals are not immune. Those contemplating and those in the middle of divorce need to know that COVID-19 will impact their lives in previously unimaginable ways. It will affect your marital estate, investment portfolio, real estate, retirement assets, business assets, and your most important asset—your children.

Underlying conflicts often emerge when couples are together in close proximity of each other for long periods of time. The abrupt and drastic lifestyle change of staying home may have caused more harm than good for couples already dealing with conflict in their marriage. Social distancing, working from home, having limited mobility, and caring for children full time without traditional support systems have become the norm, and it seems that it’s going to be for the foreseeable future. While quarantine is hard on everybody, it’s even harder on those whose marriage have already cracked. It’s not COVID-19 that’s ruining your marriage, but it can cause a divorce to happen a lot sooner.

In my recent webinar, Lunch & Learn: Successfully Navigating Divorce and Separation Amid COVID-19, I was joined by the dynamic family therapist Dr. Kathryn Smerling as we highlighted potential solutions and strategies for unprecedented financial issues, custody and visitation, and family mental health during these challenging times.

If you’re considering divorce, you must examine your options and have reality checks:

Reality Check #1 ‒ Assemble Your Team

While everybody is at home there is an opportunity to contact different attorneys, speak to them, and do your research. Given that a lot of people are working from home and practicing social distancing, you have more time to do your research online, including looking into potential divorce attorneys, therapists, financial experts, and financial advisors.

Whoever ends up on your team, it takes a village to successfully navigate your way through a divorce. You must work collaboratively with your team to decide which battles are worth fighting and what is best to let go of.

Reality Check #2 – Obtain Financial Records & Know Your Financial Picture

A significant part of divorce hinges on dividing assets. Because most of us are home more often than ever now, your spouse is likely at home working as well. Chances are the mail that was going to the office is coming to the home. That mail could include brokerage account statements, financial statements, and other financial documents that are now being sent to your home.

This is an opportunity.

Don’t view it as being a snoop. Instead, look at it as becoming educated on your own financial situation. This is an appropriate time to learn your income from all sources, what debts you have, and get familiar with your expenses. Look for bank statements, canceled checks, credit card statements, tax returns, and life insurance policies. Remember that you’re free to open the mail when it’s addressed to you. And in some cases, go into your spouse’s home office, and even before uttering any word about “divorce,” say you’re concerned because there’s a pandemic going on and want to know what we have.

Reality Check #3 – Get Acquainted with a Forensic Accountant & a Financial Wealth Manager

Couples who are contemplating a divorce or are in a middle of one, have a lot of questions about the COVID-19 economic crisis’ impact on support requirements, property division, and the valuation of assets. Virtually every individual worldwide who has money invested in the markets has now seen their accounts fluctuate dramatically from the February 2020 high (on Valentine’s Day, believe it or not).

Uncertainty will be ongoing, causing values to seesaw for a very significant time and making it difficult for attorneys to predict exactly what’s going to happen. There’s no question that negotiating your financial settlement during this turmoil is going to get more difficult and complex. For business owners, timing may be important in asking for appraisals while those assets have lower values, but they will also have resources available such as the Paycheck Protection Program and Federal Reserve lending programs.

Markets have historically bounced back from deep declines, so we need to brace ourselves for a significant period of low valuations before the markets fully recover. However, like everything else, this is an opportunity for rebalancing and tax planning opportunities. Find the best financial experts you can if you want to maximize the amount you will walk away with in a divorce.

Reality Check #4 – Expect Modifications Aplenty Going Forward

In the post-COVID world, I anticipate there will be more custody and support modifications. There will likely be quite a few cases where a modification of custody will be justified when a parent has intentionally withheld a child from their ex-spouse. In pending cases, where an ex-spouse may have lost income, there will be support modifications. It’s important to realize that merely losing your job doesn’t mean you’ll be entitled to a downward modification of support and relief from your obligations. If you have other assets sitting somewhere, you’ll be required to use those them to support your children. Many valuations will likely need be redone as well.

And as courts begin to emerge with large backlogs, there are opportunities to work collaboratively with other attorneys. With difficulties getting judges on the phone, instead attempt to first work out the issues that come up with other attorneys. Given the backlog, judges won’t want to hear mundane issues—only important things impacting peoples’ lives.

I invite you to watch and share the recording from the recent webinar for further details on these vital topics and concerns, and to hear Dr. Smerling’s perspectives on handling pandemic anxieties and difficult situations involving children during these treacherous times. Contact me if you have questions about navigating the challenges of separation or divorce amid COVID-19.

Please click here to listen to the recording of our Lunch & Learn webinar.

Amid the Pandemic: Families Coming Together … and Coming Apart

Marilyn B. Chinitz

In times of crisis, families typically come together. People decide to avoid unnecessary battles. Arguments are fewer. But that is not the case for unhappy and divorcing couples, many of whom now are experiencing extraordinarily challenging times. Family tensions are exacerbated as COVID-19 continues to impact lives in previously unimaginable ways. Some form of social distancing, working from home, limited mobility, and caring for children full-time without traditional support systems, are all now the norm and will be for the foreseeable future.

Concerns for Our Children.

Children of all ages are experiencing tremendous anxiety from the significant changes in their daily lives—the isolation, the new cleaning/sanitizing routines, and fears created by the pandemic. Limited access to parks, playgrounds, and friends coupled with distance learning, media consumption, and time-filling crafts and games can be sustained for a few weeks, but not for months on end. In divorced or separated families, many children are not spending time with their non-custodial parent because it would present too much of a risk for contracting the virus. Children are understandably confused, upset, depressed, and unfamiliar with how to process their feelings.

Parents’ Challenges.

Parents are juggling and multitasking like never before. They are expected to work from home while at the same time providing full-time care for their children, cooking, cleaning, shopping, and supervising online studies and extracurricular lessons. Some parents are doing this alone, without help from anyone—no tutor, spouse, or domestic helper. Simply put: parents are stressed and overwhelmed. They, too, are socially isolated and cannot depend on their normal diversions. Activities they once took for granted—dinner with friends, in-person meetings with a therapist, workouts in the gym, or myriad other traditional methods of dealing with stress—are now out of reach. Additionally, isolation presents parents with some of the unhealthiest of options for dealing with stress: binge eating and alcohol consumption. Moreover, many non-custodial parents find themselves in the untenable position of missing their children as a result of the coronavirus prohibiting travel and visits.

Divorcing Couples.

Those in the middle of divorce litigation are in uncharted waters. Their dispute resolution forum is not available to them. The courts are, for the most part, closed or only hearing cases involving an emergency, such as danger to a child. While some judges are conducting conference calls/Zoom sessions with attorneys, the fact of the matter is that the family courts are not available and will not be for the near future.

One of the most concerning aspects in all of this is the decrease in the value of marital assets—in some instances having decreased by as much as 50‒70 percent. Ongoing negotiations about the division of assets will need to be re-examined. Updated appraisals will be required, including revised business valuations and/or re-calculations of the transfer amounts from one spouse to the other.

And it does not stop there. Historic levels of unemployment, now a reality, are impacting the ability to pay support for the benefit of the children as well as spouses. Unexpected unemployment or the shuttering of businesses are examples of substantial changes in circumstances that will likely prompt countless applications to the court for downward modification of support obligations.

Considering Divorce.

If a marriage was falling apart and on the edge before this pandemic hit home, undoubtedly things will get worse with spouses together in a “lockdown” situation. We could be hopeful that cooler, wiser heads will prevail and that couples having problems can put their emotions and fears aside and either present a united front against these very challenging times or work out their custody and financial issues amicably. But this is unlikely to be the case. Although new divorce proceedings are generally not being instituted because the courts are focusing on emergency issues in the cases already proceeding, people are still at war with one another. Even in jurisdictions where filings are being accepted, do not expect to get any relief from the court soon. We are receiving multiple calls from prospective clients who want to understand what the next best steps are to terminate their marriage and divide assets during an unpredictable, unsettling economy.

Moving Ahead.

Many lawyers are now working with their colleagues to negotiate settlements and resolve issues in the interest of moving cases along, even though the courts are not available. More than ever before, it is incumbent upon the attorneys to assert leadership—and to step in since the judges cannot—to try to work with their adversaries to take a position that is fair and reasonable to both sides and build consensus. Otherwise, everybody loses.

For more on this important topic, please join Marilyn for her May 27, 2020, webinar:

Lunch & Learn: Successfully Navigating Divorce and Separation Amid COVID-19

Social Media Restrictions in Custody Cases—What Can or Should a Court Do?

Mary Vidas and Michelle Piscopo

Facebook, Twitter, Instagram, Snapchat. The world of social media is ever-evolving. And in the world of divorce and custody litigation, the use of social media is also evolving. We can’t always control what our clients decide to post on their social media accounts—but we can certainly try! We routinely advise clients not to post anything derogatory or defamatory about their ex-spouse. However, what can be done when one parent insists on posting pictures of minor children on his or her social media account that is available for public view? Parents with shared legal custody often do not agree that their minor children should be regularly featured on such accounts. While one might think you would need both parents’ consent to post pictures of a minor child on public social media accounts, that is not always the case. Courts may be reluctant to infringe on a parent’s right to free speech by placing restrictions on his or her ability to feature their children. At the same time, courts may recognize the potential danger of exposing children to child predators when pictures of minor children are posted on public social media accounts.

If you are a parent who does not want images of your children on publicly viewed social media accounts and the court will not impose a restriction on the other parent, you should regularly monitor your co-parent’s account and read the comments. If you see anything alarming and concerning, immediately contact the other parent and request that they remove the post. Take a screen shot of the post and the concerning comments. If the other parent refuses to remove the post, contact your attorney. While the court may not initially be inclined to issue a restriction, if you can show that the postings are receiving disturbing comments, the court may then be inclined to act.

If you are parent who wants to be able to post photos on publicly viewed sites—use caution! Monitor your own account and be proactive in removing photos that garner concerning comments and blocking users who make such comments. You may need to convince a court that you are using photos of your children on public social media in a responsible way. Also, stop and really assess whether it is necessary to have your children featured on a publicly available account and if it is going to be worth the ongoing animosity between yourself and the other parent. If the reason for wanting a public account is so you can share pictures with family and friends, then it may not be worth the battle. Opt for a private account and invite your family and friends to follow you. Children always benefit when parents are able to compromise.

And, as a final note, parents also need to use good judgment when sending sexually explicit private photos over social media. Children should never be included in any such photos. (Yes, Anthony Weiner, we are talking to you!) If your spouse or co-parent comes into possession of “sexts” that show your children, not only could it affect your custody rights, but you could also become the subject of a social services investigation. Adults are free to do as they please, but when it affects children, courts will always act swiftly and harshly to protect them.

The Many (and Expanding) Ways of Becoming A Legal Parent: Chapter Three

Caroline Krauss-Browne and Margaret Canby

Krauss-brownecanbyIn our last chapter, we discussed how a man, who has no biological or adoptive ties to the child, can be judicially declared the father in a child support proceeding; and, conversely, a man who is or may be a child’s actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into an existing functioning parent-child relationship when a child is born into a marriage and the husband has been held out to the community and to the child as the child’s father and has formed a parental attachment with the child. Historically, the protection of children and their de facto parents for support purposes (even when no statute directed or even authorized the court to so act) has been founded upon the principles of equity.

If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, then logic would dictate that these same equitable powers should be used to protect the children in all circumstances. Due to the biological impossibility of two women or two men having a child together and the high cost of adoption, there is a whole class of children who have de facto parent-child relationships which have been established with the consent and encouragement of the biological mother or adoptive father and which are deserving of legal protection. But they are not protected.

Why? Putting aside the question of overt prejudice, it is in part because the factual and legal inquiry has been centered on creating a litmus test based upon the mechanics of conception, which is a framework modeled on the heterosexual paradigm. Who is there; what is happening at that time; what documents are signed; what formalities are followed? Of course, for non-biological fathers adjudged through equitable estoppel to be parents, the question of who is present and what actually occurred at conception is overlooked by definition. He is not the biological father so he isn’t there at conception, obviously. So why does the law persist in focusing on that with regard to solemnizing the children brought into same-sex relationships when the “mechanics of conception” are so clearly very different for them? It is hard not to conclude that it is because of lingering assumptions and prejudices against the parents based upon their sexual orientation. We submit that such a focus is, sorry for the pun, “ill conceived” and dis-serves the many New York children of same-sex relationships.

New York’s highest court, the Court of Appeals, favors a “bright-line” rule, which (when interpreting the Domestic Relations Law section which authorizes a “parent” to initiate proceedings for custody and access) narrowly defines the word “parent” as those with a biological connection to a child or the means and ability to formally adopt the child. In other words, the courthouse doors are closed to everyone else, no matter the circumstances, even the circumstance when the mother actively created the parent-child relationship and led the child, the other parent and the entire community to believe they were a family. Equity provides no protection to these important relationships.

These children, who had no role in how they were brought into the world and who love and depend upon both of their mothers or both of their fathers for their physical and emotional development and well-being, just as the children of heterosexual relationships love and depend upon their parents, have been unfairly denied the protection of New York’s courts.

New York is in the minority, lagging behind Arizona, Arkansas, California, Colorado, Delaware, Florida, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Washington, West Virginia and Wisconsin. These other States allow individuals who can prove that they have an established parent-child relationship which was fostered and encouraged by the biological or adoptive parent to then also prove that it would be in the child’s best interest to share custody of and access to the child.

Since the enactment of the Marriage Equality Act in New York, children of same-sex married couples should have the benefit of the presumption of legitimacy if born during the marriage (but not before). Prior to New York legalizing same-sex marriage, New York recognized same-sex unions performed in other states and provided children of those unions with the protection of the laws of the state in which the union was formed. Children who were born before same-sex marriage became the law of the land and children with de facto parents who choose not to marry (for whatever reason) are out of luck.

However, there is the possibility of an imminent change in the law. On June 2, 2016, the Court of Appeals heard argument on companion cases. The first, Estrellita A. v. Jennifer L.D., involves a biological mother who sought and received child support from her former lesbian partner, who had acted in the role as the child’s second mother. The non-biological, non-adoptive mother was judicially declared in a “paternity” proceeding brought by the biological mother to be a “parent” responsible for the payment of child support. When she then sought custody of and access to the child, the biological mother, invoking New York’s “bright-line” rule, argued that she was not a parent because of the lack of biological or adoptive ties to the child. The lower courts both held that the biological mother could not argue to one judge that there was a parental relationship and argue the opposite to another. This is the doctrine of judicial estoppel. In less legalistic terminology, the biological mother can’t be a hypocrite. At stake is the ability of this judicially-declared “parent” who pays child support to exercise custodial rights.

The authors are pro bono co-counsel with Lambda Legal Defense and Education Fund, Inc. and Le-Gal (The LGBT Bar Association of New York) representing Brooke Barone, the non-biological, non-adoptive mother in Matter of Brooke S. B. v. Elizabeth A. C.C. The attorney for the child is the appellant. At stake is the ability of a little boy to maintain a relationship with a woman he identifies as his mother. Ms. Barone and the boy’s biological mother, Elizabeth Cleland, met in 2006, made a home together and became engaged in hopes that they would marry as soon as it became legal for them to do so. Though not legally allowed to marry, the couple wanted to start their family immediately. They agreed that Ms. Cleland would carry the child, and she became pregnant in 2008 using an anonymous donor.

When their son was born, Ms. Barone was in the delivery room and even cut the newborn’s umbilical cord. The child was given Ms. Barone’s surname. Birth announcements were placed in the local newspaper listing both parties as the parents of the child. And, the women were held out as the parents of the child at his baptism. From the start, Ms. Barone fed their son, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. Ms. Barone was at every pre-natal and post-natal medical appointment and made medical decisions for the child. The child was enrolled in day care, school and child safety programs by Ms. Cleland, who listed Ms. Barone as the child’s parent. To his doctor, his day care, the pastor who baptized him and the entire community, Ms. Barone is one of his mothers. When the couple’s relationship ended in 2010, Ms. Barone continued to parent their son, sharing parenting time and alternating holidays (including Mother’s Day) with Ms. Cleland and provided for him financially for the following three years. In 2013, Ms. Cleland abruptly cut off contact between Ms. Barone and their son and Ms. Barone filed a petition for custody and visitation. The Family Court determined that its hands were tied based on controlling Court of Appeals “bright-line” rule and dismissed Ms. Barone’s petition. The appellate court affirmed the lower court decision. After the attorney for the child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Counsel for the child and the non-biological mother were joined by many “friends of the court” in hoping to persuade the Court of Appeals to change how it defines who is a parent and allow equitable estoppel to be applied in cases in which a parental relationship has been encouraged and fostered by the biological mother, such that, years later, she cannot change her mind, deny parentage on a whim and inflict needless pain and suffering on the child, his de facto mother and extended family. The “bright-line” is a boundary line which unfairly discriminates against children of gay and lesbian families. It is time that the Courts of this State protect the children of these relationships and their de facto parents. We proudly and hopefully look forward to being able to say that we participated in bringing about this important change in the law and the extension of civil rights to the parents and children of same-sex relationships.

Blank Rome Encourages New York Court of Appeals to Safeguard Legal Bond Between Child and Non-Biological Mother

Caroline Krauss-Browne and Margaret Canby

Krauss-brownecanby

Today, Blank Rome LLP and co-counsel argued before the New York State Court of Appeals on behalf of a non-biological lesbian mother, Brooke Barone, who is seeking shared parenting time and financial responsibility for a child she and her former same-sex partner, Elizabeth Cleland, planned for and raised together. The couple planned to marry but separated before the marriage equality law passed.

Partners Margaret Canby and Caroline Krauss-Browne lead the Blank Rome team representing Ms. Barone.

“Today, we aim to correct a terrible injustice. Our client, Brooke, must be equally recognized under law as a legal guardian to her son in the same manner as his biological mother,” said Ms. Canby. “This appeal was brought by the attorney appointed for the child based on his steadfast belief that the child longs for a reunion with his mother, Brooke. He argues, and we join him, that the failure to reunite this child with Brooke, based upon a 1991 judicial ruling – not a statute – that defines parenthood in an overly restrictive, outmoded, and discriminatory fashion, is against the child’s best interest and will do him substantial harm.”

Together with Lambda Legal and the LGBT Bar Association of Greater New York, Blank Rome represents Ms. Barone in her effort to continue to parent the six-year-old son she and Ms. Cleland planned to have together. The couple met in 2006, made a home together and became engaged in hopes that they would marry as soon as it became legal for them to do so in their home state of New York. Though not legally allowed to marry, the couple wanted to start their family immediately. They agreed that Ms. Cleland would carry the child, and she became pregnant in 2008 using an anonymous donor.

When their son was born, Ms. Barone was in the delivery room and even cut the newborn’s umbilical cord. They used Ms. Barone’s last name on birth certificate. Birth announcements were placed in the local newspaper listing both parties as the parents of the child. And, the women were held out as the parents of the child at his baptism. From the start, Ms. Barone fed their son, changed him, rocked him, bathed him, and took care of all the responsibilities a mother has to a baby. To his doctor, his day care, the pastor who baptized him, Ms. Barone is one of his mothers. When the couple’s relationship ended in 2010, Ms. Barone continued to parent their son and provided for him financially for the following three years.

In 2013, Ms. Cleland abruptly cut off contact between Ms. Barone and their son, requiring Ms. Barone to file for custody and visitation. The family court determined its hands were tied based on the high court’s decisions in 1991 in Alison D. and in a subsequent parenting case in 2010, Debra H. v. Janice R. The court dismissed Ms. Barone’s petition. The appellate court affirmed the lower court decision. After the attorney for the child asked the Court of Appeals to hear the case, New York’s high court accepted review.

Today, Blank Rome joined in arguing that the prevailing New York legal precedents do not account for the myriad ways that people make families, including same-sex couples, and that to consider non-biological parents “legal strangers” to the children they have cared for since birth is not in the best interest of these children. New York’s passage of the Marriage Equality Act and the U.S. Supreme Court’s 2015 marriage ruling in Obergefell v. Hodges call for greater respect for the families formed by same-sex couples and their recognition as full-fledged parents of their children.

Many prominent legal and child welfare experts have filed friend-of-the-court briefs on the side of Ms. Barone and her son, including the New York State Bar Association, the New York City Bar Association, the National Association of Social Workers, and 45 family law academics on the faculty of every law school in New York State.

In addition to Ms. Canby and Ms. Krauss-Browne of Blank Rome, who represent Ms. Barone on a pro bono basis, the legal team includes Susan Sommer of Lambda Legal and Brett Figlewski of the LGBT Bar Association of Greater New York. The child is represented by R. Thomas Rankin of Goodell & Rankin and Eric I. Wrubel, Linda Genero Sklaren and Alex R. Goldberg of Warshaw Burstein, LLP, who, along with Ms. Barone, also seek reversal of the decisions of the lower courts.

The case is Brooke S.B. v. Elizabeth C.C.

New York Court of Appeals to Safeguard