As a New York divorce lawyer for nearly the past two
decades, I have observed that even in the most bitter of divorces, each of the
divorcing parents continues to love and want the best for their children. However, the dissolution of the parties'
marriage creates a tense and oftentimes confusing dichotomy - both for the
parties and their children.
occurs when one or both of the spouses has determined that the marital
relationship is no longer fulfilling and cannot be saved. Nonetheless, both spouses continue (as they
should) to seek close and healthy bonds with their children. This stressful dichotomy merits careful
consideration. Divorcing spouses can and
should discuss how they will continue to cooperate so that their children may
continue to enjoy happy, healthy, and
mutually-fulfilling relationships with both of them. The parties' respective divorce lawyers can
serve important and positive roles in helping couples reach practical
arrangements with regard to parenting.
It is important that each party have an experienced divorce lawyer who
is thoroughly familiar with New York divorce and family law. Among other things, experienced and skilled
divorce attorneys help their clients reach settlements (separation agreements)
that set forth the parties' mutual understanding and goals and that promote the
best interests of un-emancipated children.
interplay between divorce and parenting is complex. This article seeks to address some of the
more common issues that arise in cases involving minor children, and to discuss
recent, relevant developments in New York divorce law.
A Divorced Parent's Unresolved Feelings of
Bitterness Can Lead to "Parental Alienation"
or "Inappropriate Parental Influence":
the uncertainty, trauma and bitterness of a divorce will lead one or both
parents to engage in behavior that, unbeknownst to them, increases the stress
that children experiencing in conjunction with divorce. For example, a parent might not fully realize
the extent to which his or her child (or children) feels confusion or distress
when the child overhears the parent speaking in a disparaging manner about the
other parent. This is sometimes referred
to as "parental alienation syndrome." In
such instances, counseling is particularly important. If not resolved, such conduct can have
extreme consequences, such as a child’s alienation from the parent who is being
verbal remarks or conduct that is disruptive of a child's relationship with the
other parent is a matter that has fueled bitter court proceedings, both in New
York and in courts throughout the United States. Judge Jeffrey S. Sunshine (who is a Justice
of New York’s Supreme Court in Kings County, and is widely held in high esteem)
has used the phrase "inappropriate parental influence" to describe such
In the case
NK v. MK, 851 N.Y.S.2d 851 (2007), Judge Sunshine issued a decision that
denied the father's request that the Court punish the mother for her
inappropriate comments to the children regarding the father by suspending child
support and maintenance. Judge Sunshine
explained that such relief was not appropriate at that juncture because the
mother she "was not, until now, truly aware of the nature of both her active
acts of alienation and her passive acts by educating the child as to the
process and her own concerns by making the child part of her own crisis." However, the Court ordered the mother to
cease her behavior:
Pending resolution of the post trial
applications, the mother is hereby enjoined and restrained from discussing this
litigation at any time the child may be within 1,000 feet of her. That includes
her economic concerns, concerns about the father and his relationships with
others, the role of therapists in a divorce, domestic violence and orders of
protection, and this opinion; nor shall the mother take the child to members of
the community or her parents for them to discuss the case or the parent-child
No Good Deed Goes Unpunished": Under New
York law, A Child Support Obligor Does
Not Receive Credit for Voluntary Payments or Purchases on Behalf of the Children
instances, a parent's love for the children of the marriage leads him or her to
engage in conduct that is destructive of his or her financial or legal
interests. A fairly common scenario is
a father who has fallen behind on his child support obligations, yet continues
to make voluntarily purchases (such as paying for cell phone bills or items of
clothing) for a child. Most payers of
child support (in the vast majority of cases, fathers) do not realize that
voluntary purchases that they make for children are not "child support", and
that most courts will not give them credit for such payments should the
custodial parent file an action seeking to collect child support arrears.
succinctly, under New York law, voluntary payments made for children are not
child support, and such payments do not diminish arrears. This issue was addressed by the New York
Supreme Court, 2nd Department, approximately two months ago, in the case LiGreci
v. LiGreci 929 N.Y.S.2d 253 (2nd Dept. 2011). The Court held that "[t]he plaintiff's
voluntary payments for the benefit of the children, not made pursuant to a
court order, may not be credited against the amounts due pursuant to the
judgment of divorce." Id.
is painful for a parent to refuse to make purchases directly for his or her
children. This is particularly true for divorced parents, who sometimes
experience feelings of guilt at having "inflicted" divorce upon their children. As a divorce lawyer, I encourage clients who
are experiencing such emotions to seek counseling.
guilt are not merely counterproductive, but also (I firmly believe)
unjustified. Each person is entitled to
fulfillment and happiness, and a healthy marriage is one that helps each of the
spouses to enjoy life to its fullest.
Couples who indefinitely delay or avoid divorce solely for the perceived
benefit of their children sometimes subject themselves, and their children, to
years of avoidable, yet painful, conflict, misery and stress. Oftentimes, couples who delay a divorce "for
the kids" later discover that their children knew – all along – that the couple was miserable. In such cases, divorce is a relief for the
entire family, including the children.
couples who have minor children get divorce, they must address legal,
financial, psychological and other issues that are sometimes painful. As a divorce lawyer, my role is to help each
client identify such issues, and then, through litigation or negotiation (or
both) help my client reach a resolution that serves their interests and those
of their children.
Marc A. Rapaport is a
divorce attorney in New York City, with offices in the Empire State Building.
Mr. Rapaport is the founder of Rapaport Law Firm, PLLC, a full-service law
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