FAMILY MATRIMONIAL CAUSES OF ACTION
Types of Causes of Action:
- CUSTODY AND VISITATION
- SEPARATION FROM BED AND BOARD
Elements to prove, where an adult may individually, or a married couple may together:
- take another person;
- into the relationship of parent-child;
- acquiring the right and responsibility of a parent;
- so long as there is consent of:
- the person being adopted if over 14 years old;
- the parents of a child born in wedlock;
- the mother of a child born out of wedlock;
- the father of a child born out of wedlock and placed for adoption more than six months after birth, if the father had substantial and continuous or repeated contact with the child
- the father of a child born out of wedlock and placed for adoption within six months of birth, if the father lived with the mother or the child for six months before child is placed for adoption, openly acknowledged the child to be his and paid medical expenses.
Elements to prove to declare a marriage null and void:
- under the age of consent and then;
- the party, a parent, guardian or next friend;
- may bring action for annulment;
- alleging the party was not of legal age to consent to marriage;
- except that the action may not be brought by a party who co-habited with the other party after attaining the age of legal consent.
- mentally retarded or mentally ill and then;
- any relative of mentally retarded or mentally ill party;
- who has an interest to avoid the marriage;
- may bring an action for annulment;
- during lifetime of either party in case of mentally retarded party;
- during continuance of mental illness, after death of mentally ill party or during lifetime of other party in case of mentally ill party; or
- by mentally ill party after being restored to sound mind; or
- by other party, during the continuance of mental illness, provided plaintiff did not know of mental illness at time of marriage; or
- by next friend of mentally retarded or ill person if no relative brings action and mentally ill not restored to sound mind;
- except that the marriage will not be annulled if the parties co-habited freely after the mentally ill person returned to sound mind.
- physically incapable of entering marriage and then;
- injured party; or
- incapable party if incapable party unaware of incapacity at time of marriage; or
- incapable party if aware of incapacity but did not know it was incurable;
- can bring action only when incapacity continues and is incurable; and
- action must be brought within five years after marriage.
- married under force, duress or fraud and then action may be brought:
- by any party whose consent was obtained by force or duress;
- by any party whose consent was obtained by fraud (if action brought within time for enforcing civil remedy for fraud);
- by the parent/guardian of party consenting under force, duress or fraud, during lifetime of the other party; or
- by relative of party under force, duress or fraud if relative has interest to avoid the marriage (and if brought within time limitation for fraud action);
- except if the parties co-habited voluntarily before the action brought (with full knowledge of the fraud).
- suffering from incurable mental illness for five years and then action may be brought:
- by or on behalf of either party to marriage;
- if one party has been incurably mentally ill;
- for five or more years.
III. CUSTODY AND VISITATION
Elements to prove for obtaining custody of child by either parent:
- a minor child is residing within this state;
- the court shall determine solely what is for the best interest of the child; and
- what will best promote the child’s welfare and happiness.
B. VISITATION RIGHTS OF SIBLING
- a brother or sister of a child (or, if he or she be a minor, a proper person on his or her behalf) whether by half or whole blood; and
- it is in the best interest of the child for visitation rights for such brother or sister regarding the child.
C. VISITATION OF GRANDPARENTS
- either or both of the parents of a minor child, residing within this state, is or are deceased; or
- where circumstances show that conditions exist; and
- that it is in the best interest of the child for visitation or custody rights for such grandparent or grandparents regarding such child;
D. ENFORCEMENT OF VISITATION
- the court of another state exercised jurisdiction;
- in substantial conformity with New York law; or
- the determination was made under factual circumstances meeting the jurisdictional standards of New York law; and
- the determination has not been modified in accordance with New York law, provided, however, that recognition and enforcement of the determination would not violate New York Domestic Relations Law § 240(1)(c) or New York Family Court Act § 1085.
E. ENFORCEMENT OF VISITATION— TEMPORARY ORDER
- a New York court has:
- no jurisdiction to modify a child custody determination; but
- may, if consistent with New York Domestic Relations Law § 240(1)(c) or New York Family Court Act § 1085, enforce;
- a visitation schedule made by a court of another state; or
- the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
The elements to prove:
- Relationship between husband and wife;
- Broken down irretrievably;
- For at least six months; and
- One party must state such facts under oath.
- Cruel and inhuman treatment;
- Living apart pursuant to separation agreement; or
- Living apart pursuant to separation decree.
- voluntarily separated from plaintiff for a period of one or more years by;
- leaving the marital home without the intention to resume cohabitation; or
- locking plaintiff out of the marital residence without the consent of the other spouse; or
- constructive abandonment when
- defendant unjustifiably refused to fulfill the basic obligations
arising from the marriage contract;
- the abandonment continued for at least one year; and
- the refusal must be unjustified, willful and continued despite repeated requests for continued conjugal relations; provided however, defendant was not suffering from an impairment or disability that prevented the party from engaging in sexual relations.
- defendant unjustifiably refused to fulfill the basic obligations
- the commission of an act of sexual or deviate sexual intercourse;
- voluntarily performed by the defendant;
- with a person other than the plaintiff; and
- after the marriage of plaintiff and defendant.
E. CRUEL AND INHUMAN TREATMENT
- such conduct;
- that so endangers the physical or mental well being of the plaintiff; and
- rendering it unsafe or improper for the plaintiff to cohabit with the defendant.
- in prison
- for a period of three or more consecutive years;
- after the marriage of plaintiff and defendant; and
- the defendant is incarcerated at the time the action is commenced.
- the husband and wife have lived separate and apart;
- pursuant to a written agreement of separation;
- subscribed by the parties and acknowledged; or
- proved in the form required to entitle a deed to be recorded;
- for a period of one or more years after the execution of such agreement;
- satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement; and
- such agreement shall be filed in the office of the clerk of the county where either party resides; or
- in lieu of filing, either party to such agreement may file a memorandum of such agreement, similarly subscribed and acknowledged or proved as was the separation agreement, containing:
- the names and addresses of each of the parties;
- the date of marriage of the parties;
- the date of the separation agreement; and
- the date of this subscription and acknowledgment or proof of such separation agreement.
- the husband and wife have lived apart;
- pursuant to a decree or judgment of separation;
- for a period of one or more years;
- after the granting of such decree or judgment; and
- satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
Elements to prove:
A. GUARDIANSHIP OF MINOR
No Guardianship Appointment Exists.
- the parents jointly; or
- if they be separated, or divorced, to the parent who has been given the custody of the minor by a decree of court, or in the absence of such a decree, to the parent having the actual custody of the minor; or
- if one of the parents is dead, to the sole surviving parent; or
- if there be no father or mother, to the nearest and eldest relative of full age, not under any legal incapacity; but
- such guardianship rights and authority shall be superseded by a testamentary document or other guardian appointed pursuant to New York Domestic Relations Law or Article 10 of the New York Surrogates Court Act.
- whether of full age or a minor, of a child likely to be born, or of any living child under the age of eighteen years and unmarried, may;
- by deed or last will, duly executed;
- dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons; and
- such surviving parent may appoint a guardian or guardians of the person and of the property of the infant and in making such appointment shall not be limited to the appointment of the same person or persons in both capacities; provided that
- the parents, during their lifetime, both by last will duly executed, and with the written consent of the other spouse duly acknowledged, appoint the other spouse and a third person to be the guardians of the person and property of such child during the child’s minority;
- such consent must have as part thereof a sworn statement that the consenting parent in so consenting, is motivated solely by the welfare of the child or children, the guardianship of whom is the subject of such consent;
- the consenting parent has not received and will not receive any consideration for such consent;
- such consent may be revoked by such consenting parent at any time prior to the death of the other, by filing in the office of the county clerk of the county in which said other then resides, a written revocation of such consent, subscribed and acknowledged by the person so revoking, with proof of service of a copy on such other parent in the manner provided for service of a summons; or
- an appointment of a guardian of the person and property of an infant made by duly executed last will of his father or mother shall be valid and effective if at the time the will is admitted to probate the other parent shall have died or the surviving parent be an adjudicated incompetent; or.
- if both parents die under circumstances rendering it difficult or impossible to determine the one that died first and both of them left last wills appointing the same person as guardian, the appointment shall be valid and effective; or
- if both parents die under circumstances rendering it difficult or impossible to determine who died first, leaving last wills appointing different persons as guardians, the surrogate’s court shall determine that appointment to best serve the welfare of the child and issue letters of guardianship; provided that
- if at any time during the minority of the infant the surviving parent becomes competent to serve as guardian, the parent may apply to the court that issued letters of guardianship to the guardian appointed by will for a decree revoking such letters and the court shall on such application make such order or decree as justice requires; and
- a person appointed guardian pursuant to the New York Domestic Relations Law must also have the will admitted to probate, or executed deed recorded by New York Surrogate’s Court Procedure § 1710.
Married Minor Guardianship:
- the marriage must be lawful;
- before he or she attains majority;
- it terminates a general guardianship as to his or her person; but
- the property guardianship remains.
B. GUARDIANSHIP OF MENTALLY RETARDED/DEVELOPMENTALLY DISABLED
- a parent or any interested person eighteen years of age or older;
- on behalf of the mentally retarded or developmentally disabled person including a corporation authorized to serve as a guardian as provided for under New York Law; or
- by the mentally retarded or developmentally disabled person when such person is eighteen years of age or older.
C. GUARDIANSHIP OF ADULT
- the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person;
- the person agrees to the appointment; or
- the person is incapacitated as defined by statute, the court will then consider
- the report of the court evaluator; and
- if the person is likely to suffer because;
- the person is unable to provide for personal needs and/or property management;
- the person cannot adequately understand and appreciate the nature and consequences of such inability.
- with primary consideration of the functional level and functional limitations of the person, and assessment of that person’s:
- management of the activities of daily living, as defined by New York Mental Hygiene Law § 81.03(h);
- understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living;
- preferences, wishes, and values with regard to managing the activities of daily living;
- the nature and extent of the person’s property and financial affairs and his or her ability to manage them;
- the extent of the demands placed on the person by that person’s personal needs and by the nature and extent of that person’s property and financial affairs;
- any physical illness and the prognosis of such illness;
- any mental disability, as that term is defined in New York Mental Hygiene Law § 1.03, alcoholism or substance dependence as those terms are defined in New York Mental Hygiene Law § 19.03, and the prognosis of such disability, alcoholism or substance dependence; and
- any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment.
D. WASTE OF ASSETS
- the property of his or her ward that shall come into his or her custody is not kept safely;
- there is waste, sale or destruction of such property or inheritance exists;
- the houses, gardens and other appurtenances to the lands of his or her ward, by and with the issues and profits thereof, or with such other moneys belonging to his or her ward as shall be in his or her possession are not kept in repair and maintained; or
- fails to deliver the same to his or her ward, when he or she comes to full age, in at least as good condition as such guardian received the same, inevitable decay and injury only excepted.
VI. SEPARATION FROM BED AND BOARD
Elements to prove:
- the cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant;
- the abandonment of the plaintiff by the defendant;
- the neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support pursuant to New York Domestic Relations Law § 32 or New York Family Court Act § 412;
- the commission of an act of adultery by the defendant, except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary co-habitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce, provided that adultery means the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant; and
- the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
Elements to prove:
- Evidence derived from a genetic marker test; or
- Evidence that the father openly and notoriously acknowledged the child as his own.
the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.