Category Archives: Child Custody

Constructive Emancipation in Divorce: A Steep Evidentiary Burden

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Alan R. Feigenbaum ●

New York Law Journal, August 21, 2025 —

One of the most glaring contradictions in the practice of matrimonial law is that divorce litigation proceeds all the way up through the start of a trial without being governed by the rules of evidence. But when a trial starts, perhaps years after the divorce action has been commenced, all of a sudden the rules of evidence are front and center.

The danger posed by this contradiction should be obvious: an attorney can prosecute an argument or arguments for the better part of 80 to 90 percent of the duration of a divorce litigation without concern for questions such as (1) is this hearsay, and if so, is there a hearsay exception that applies; (2) is this document authenticated; (3) can I get this document in evidence even though its author is no longer alive; (4) is this a business record, and many more.

But when trial starts, the unchained litigious arguments that an attorney can make in motion papers and at oral argument on motions without evidentiary restriction are met with a gigantic brick wall, and that attorney had better be ready with concrete evidence.

That brings us to the subject of constructive emancipation of children in divorce, which to my mind incorporates one of the most challenging and complex burdens of proof in the scheme of the many claims that can be made in the context of divorce litigation.

In the recent decision of L.E. v. Y.E., 2025 NY Slip Op 51038(U) (Family Court, Westchester County, May 2025), the petitioner-father sought to discontinue his child support obligations for his three children on the basis that they had been constructively emancipated. Prior to the father’s modification petition, the mother had been awarded sole legal and physical custody, with the father having “supervised and/or unsupervised access” with the children.

The father ceased paying all support in 2023, and alleged that “despite his efforts, the children have refused to see him for six years, and by their choice and not his actions, and as a result, are constructively emancipated.”

Read more on our website.

In the News

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Below is a roundup of Blank Rome Matrimonial and Family Law Partners’ recent awards, recognitions, media coverage, and other accomplishments from around the country.

‘Meaningful Consultation’ Over Add-On Expenses in Divorce
July 24, 2025 – Blank Rome partner Alan R. Feigenbaum authored this New York Law Journal article discussing “add-on expenses” within custody agreements. 

Chambers High Net Worth 2025 Highly Ranks Blank Rome Matrimonial & Family Law Group and Attorneys
July 24, 2025 – Chambers High Net Worth 2025 has highly ranked Blank Rome’s Matrimonial & Family Law practice group in California and New York, as well as co-chairs Kristina Royce and Morgan Fraser Mouchette, and partners Marilyn B. Chinitz, Norman S. Heller, Lois J. Liberman, Sophie Jacobi-Parisi, Stacy D. Phillips, Mary T. Vidas, and Brett S. Ward. 

Stacy D. Phillips and Kristina Royce Recognized as Leading California Family, Matrimonial & Divorce Lawyers by Doyle’s Guide
July 23, 2025 – Blank Rome is pleased to share that partners Stacy D. Phillips and Kristina Royce have been recognized in the 2025 listing of Leading California Family, Matrimonial & Divorce Lawyers by Doyle’s Guide.

Here’s How Much Andy Byron’s Divorce Bill Could Be Following Coldplay Kiss Cam Debacle
July 19, 2025 – Blank Rome partner Jacqueline Combs was featured in this New York Post article discussing the potential fallout from Andy Byron’s recent incident at Coldplay’s concert.

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‘Meaningful Consultation’ Over Add-On Expenses in Divorce

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Alan R. Feigenbaum ●

New York Law Journal, July 24, 2025 —

In the framework of a divorce case, when divorcing spouses have agreed to joint decision-making (joint “legal custody”) over major decisions affecting their children, there is an intersection, or crossroads if you will, between the principles of joint custody and the payment of “add-on expenses” (private school tuition, extracurricular and summer activity expenses, unreimbursed medical expenses, as just some examples).

With that in mind, when divorce lawyers draft separation agreements that require one parent, or both parents, to contribute to the payment of add-on expenses, often times we draft language that is intended to condition the payment of those same expenses upon compliance with the requirement that decisions about those expenses—before they are incurred—are made jointly if the parties have agreed to joint custody.

Stated simply, in the context of a joint custody arrangement, the thinking is that one parent (typically, the parent whose obligation to pay for add-on expenses is lesser, or none at all) should not be able to unilaterally enroll a child, for example, in an extracurricular activity, and then stick the other parent (who has had no chance to weigh in on enrollment) with the bill.

That brings us to the insightful decision of Judge Lydia S. Antoncic in the Matter of MM v. FV, (Family Court, New York County, 2025, Case Number 263192). In MM, the petitioner sought to enforce a judgment of divorce ordering the respondent to pay, inter alia, 27 percent of the children’s add-on expenses, including summer camp, educational expenses, medical insurance and expenses, and extracurricular activity expenses. The parties’ divorce Judgment incorporated a binding term sheet and a stipulation of settlement.

At the conclusion of a fact finding hearing by a support magistrate, the support magistrate denied, without prejudice, the petition for arrears associated with add-on expenses, finding that the court lacked jurisdiction “in that the parties’ judgment of divorce included contractual provisions to interpret and that the interpretations of the terms of joint custody are so intertwined with enforcing the terms of support for add-ons in the judgment that this court lacks jurisdiction to enforce those provisions” (emphasis in original).

Read more on our website.

In the News

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Below is a roundup of Blank Rome Matrimonial and Family Law partners’ recent awards, recognitions, media, and other accomplishments from around the country.

The Sky is the Limit. Top LA Attorney Stacy D. Phillips Gets Up Close and Personal on Her Lifestyle Podcast “Stacy Phillips & Friends”
February 6, 2025 – Blank Rome partner Stacy D. Phillips was featured in this Beverly Hills Times Magazine article discussing her newly launched podcast, “Stacy Phillips & Friends.”

Kristina Royce Joins The Wall Street Skinny Podcast
February 3, 2025 – Blank Rome partner Kristina Royce joined hosts Kristen Kelly and Jen Saarbach on The Wall Street Skinny podcast to discuss why individuals need to be well-informed about their legal rights and obligations, particularly concerning marriage and financial matters.

Child Custody: The Dangers of ‘Rules of Thumb’
January 30, 2025 – Blank Rome partner Dylan S. Mitchell authored this New York Law Journal article discussing the common principle regarding on acting on what is in the best interests of children.

5 Challenges with Changing Your Name That No One Tells You
January 28, 2025 – Blank Rome partner Ernestine J. Mings was featured in this The Knot article discussing the potential challenges when one has to change their legal name.

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In the News

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Below is a roundup of Blank Rome’s Matrimonial & Family Law partners’ recent awards, recognitions, media, and other accomplishments from around the country.

Reconciling the Law of ‘Cohabitation’ with Social Realities
October 10, 2024 – Blank Rome partner Alan R. Feigenbaum authored this New York Law Journal article about alimony payments and when they should be terminated. 

Marilyn B. Chinitz Joins the Women Winning Divorce Podcast
October 7, 2024 – Blank Rome partner Marilyn B. Chinitz joins the Women Winning Divorce podcast to discuss how to handle and divide complex assets, tips for receiving alimony, and strategies to safeguard assets during divorce. 

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What It Means to Have ‘Joint Legal Custody’

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Alan R. Feigenbaum ●

New York Law Journal, November 1, 2024 —

As divorce lawyers, when we break down the parameters of “physical custody” and “legal custody,” we tend to proceed on autopilot.

Meaning, we immediately begin to determine what could be a workable “regular schedule” (which parent is with a child, when, and for how long, in a 14-night cycle, i.e., 7-7, 8-6, 9-5) and a “holiday/vacation schedule,” i.e., who has this holiday versus that holiday in “even-numbered” vs. “odd-numbered” years.

We then get to work on how “major decisions” affecting a child’s welfare will be made, e.g., sole decision-making, joint decision-making, joint decision-making with a parenting coordinator as a “tiebreaker” of sorts, etc.

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In the News

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Below is a roundup of our attorneys’ recent awards, recognitions, media, and other accomplishments from around the country.

You Don’t Need a French Vineyard to Have a Prolonged Divorce Proceeding
July 25, 2024 – Blank Rome Partner Alan R. Feigenbaum authored this New York Times article discussing the occasionally absurd length of divorce proceedings amidst disputes over finances.

 
Chambers High Net Worth 2024 Highly Ranks Blank Rome Matrimonial & Family Law Group and Attorneys
July 24, 2024 – Blank Rome is pleased to announce that Chambers High Net Worth 2024 has highly ranked our firm’s Matrimonial & Family Law practice group in California and New York, as well as co-chairs Kristina Royce and Brett S. Ward and partners Marilyn B. Chinitz, Norman S. Heller, Lois J. Liberman, Morgan Fraser Mouchette, Sophie Jacobi-Parisi, Stacy D. Phillips, and Mary T. Vidas.


Brad Pitt, Angelina Jolie’s Divorce Battle Nears 8 Years as His Romance with Girlfriend Heats Up
July 24, 2024 – Blank Rome Partner Sophie Jacobi-Parisi speaks to Fox News Digital about some of the financial hesitation that may come with the divorce between Angelina Jolie and Brad Pitt. 


Shannen Doherty Died amid a Contentious Court Fight with Her Ex. How She Was Able to Divorce Him After Her Death
July 20, 2024 – Blank Rome Partner Ashley Silberfeld talks through some of nuances of divorce cases, when one of the parties has died.


How to Have an Actually Productive Argument, According to Lawyers
July 19, 2024 – In this HuffPost Life article, Blank Rome Partner Marilyn Chinitz discusses arguments as an art and social practice, and speaks to the best practices when it comes to arguing.


Breaking Up? Here’s What to Do About Joint Bank Accounts
July 13, 2024 – Blank Rome Partner Lois Liberman shares advice with The Penny Hoarder on how to begin navigating the process of dealing with joint bank accounts in a divorce.


Alan R. Feigenbaum Joins the To Dine for Podcast
July 1, 2024 – Blank Rome Partner Alan R. Feigenbaum joins the To Dine For Podcast and discusses the “Non-Linear Love” project, a collection of unique relationship stories that reframe the way we think about dating, romance, break-ups, divorce, and love.


Email Exchanges in Divorce Litigation Carry Immense Risk
June 28, 2024 – Blank Rome Partner Alan R. Feigenbaum authored this New York Law Journal article discussing the risks and stress associated with email exchanges as a divorce lawyer.


Angelina Jolie and Brad Pitt Went from ‘Domestic Bliss’ to Divorce: Inside Their Ongoing Multi-Year Legal Feud
June 20, 2024 – Blank Rome Partner Sophie Jacobi-Parisi shares commentary with CNN on the bifurcated divorce process and its potential for detrimental effects on proceedings.


Blank Rome’s Linda Kornfeld and Stacy D. Phillips Named 2024 Top Women Lawyers by Daily Journal
June 20, 2024 – Blank Rome Insurance Recovery practice group partner and co-chair Linda Kornfeld and Matrimonial & Family Law partner Stacy D. Phillips have been named 2024 Top Women Lawyers by the Daily Journal.


The Long and Winding Road to Gender Parity in the Legal Profession
June 20, 2024 – Blank Rome Insurance Recovery practice group partner and co-chair Linda Kornfeld and Matrimonial & Family Law partner Stacy D. Phillips have been named 2024 Top Women Lawyers by the Daily Journal.


Mary Craig Calkins, Robert L. Kahan, and Kristina Royce Named Entertainment Business Visionaries
June 18, 2024 – Blank Rome is pleased to announce that partners Mary Craig Calkins, Robert L. Kahan, and Kristina Royce, who serves as co-chair of our firm’s Matrimonial & Family Law group, have been named Entertainment Business Visionaries by the Los Angeles Times B2B Publishing.


Alan R. Feigenbaum Joins the Dating Daze Podcast
June 17, 2024 – Partner Alan R. Feigenbaum takes on the “Non-Linear Love” project, which aims to view love through a non-linear perspective rather than judging relationships based on their path and relativity to marriage.


Marilyn B. Chinitz and Lois J. Liberman Recognized in Spear’s Legal Indices 2024
June 13, 2024 – Blank Rome is pleased to announce that Spear’s Legal Indices recognized partners Marilyn B. Chinitz and Lois J. Liberman in its 2024 Family Law Index for a second consecutive year.


‘I’m Divorcing after a Lot of Heartache:’ Should I Suggest My Husband Keep His $200,000 401(K), So I Can Take Our $360,000 House?
June 6, 2024 – Blank Rome Partner Brett S. Ward provides perspective on the difficult distribution of assets in a divorce.


Navigating the Nuances of LGBTQ+ Divorce in California
June 5, 2024—In this Love Bytes blog, Stacy D. Phillips unpacks some of the unique challenges LGBTQ+ couples face when it comes to divorce.


When There Are No Custody Heartstrings to Pull
June 4, 2024 – Blank Rome Partner Alan R. Feigenbaum authored this New York Law Journal article discussing how important it is to critically analyze a parent’s claims regarding custody.


Conservatives Are Coming After This Type of Divorce- Here’s Why
May 31, 2024 – Blank Rome partner Marilyn Chinitz shares her thoughts with HuffPost on the benefits and efficiency of no-fault divorce.
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A Divorce Court’s Primer on Requesting Sole Custody

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Alan R. Feigenbaum ●

New York Law Journal, August 21, 2024 —

Domestic violence in the post-pandemic era continues to be at the forefront of divorce practice. This author has written previously on the need—for the sake of the many victims—to expand our views of domestic violence beyond physical violence, as domestic violence can and does take many different forms.

One of those forms derives from the use of language in communications, be it by email, text message, or, as was the case in L.W. v. J.U., 2024 NY Slip Op 50879(U) (Sup. Ct. Westchester County, July 9, 2024) (Justice James L. Hyer), communications sent on the Our Family Wizard application “which is intended to serve as a mode of communication between parties involved in high conflict custody matters.”

In custody disputes, divorce lawyers may be asked by clients something along the lines of “under what circumstances can I get sole custody?”

A mere difference in parenting styles (e.g., Mom believes in “no screens” and Dad is more lenient with “screen time”; Dad prepares a continental breakfast for the children whereas Mom throws frozen waffles in the toaster for the children) is unlikely to warrant an award (or discussion) of sole custody.

To be in sole custody territory, the conduct of one of the parents needs to be closer to what a reasonable person would consider extreme such that it puts a child’s physical and/or emotional wellbeing in patent jeopardy.

Read more on our website.

The State of New York Divorce Practice

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Alan R. Feigenbaum ●

New York Law Journal, July 26, 2024 —

Compassion, humanity and the resources to act promptly are greatly needed when it comes to making sure that the matrimonial courts in New York are able to continue providing invaluable assistance to families in distress. Our matrimonial courts are tasked with protecting the best interests of children across this entire state. If our courts are slow to act due to backlog and insufficient resources then that reality has the potential to enable bad actors to prevail, secure in the knowledge that the courts may struggle to stop them. So the question I have is, have our matrimonial courts been provided with the resources necessary to protect children of divorce?

To answer that question, I decided to poll some of the many upstanding members of our Bar, as well as a retired judge, and get their views on the matter. To conclude this article, I will share my views as well.

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When There Are No Custody Heartstrings to Pull

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Alan R. Feigenbaum ●

New York Law Journal, June 4, 2024 —

There is something about parental arguments over children, otherwise known as custody disputes in the matrimonial arena, that generate a spectrum of emotions not seen in the context of disputes over dollars. Certainly, financial disputes carry their own set of emotions for divorcing spouses. But custody disputes tend to open the door to claims made in litigation that, from the outsider’s attentive view, are sometimes a bridge too far.

How can we explain the tendency of litigants to overreach when it comes to custody disputes? First, there is the salt on the wound feeling from shifting from a world in which a parent (stay at home or working) expects to see their child each day to a world in which days are spent by a parent without his or her child in the home.

Ashleigh Louis, Ph.D., a mediator with a background as a dual-licensed psychologist and marriage and family therapist who does work for Quantum ADR, describes the feeling of absence as follows: “Every moment that is allocated to the other parent is time that parent does not get to spend with their child, and the absence of control and oversight over their child’s wellbeing can set off a cascade of worry and distress. There tends to be significant hurt, anger, resentment, sadness, and other challenging feelings that can permeate the ongoing lens through which they view the other parent, not only in their relationship with each other, but also in their relationship with their shared children.”

Read more on our website.