Decisions of Interest

The wife requested equitable distribution and the husband interposed the agreement as an affirmative defense. The wife argued that both Dominican and Spanish law stated that a prenuptial agreement was unenforceable if the parties did not marry within one year of its execution. The court concluded the agreement was invalid under Spanish law, as the parties' marriage took place nearly 18 months after the agreement was signed. In addition, it was also invalid under Dominican law because the agreement was not recorded with the civil registry in the Dominican Republic.

Judge Says Mother Went Too Far to Push Father From Child's Life

A Westchester County judge has taken a nine-year-old child from his mother's primary care after finding that she is so intent upon keeping the boy's father out of his life that she therefore can no longer be trusted with primary physical custody. E.V. v. R.V., 10602/2007, dated July 2.

The parents of the boy whose custody is in issue have been in dispute since they were awarded joint custody seven years ago. Custodial custody and final decision-making authority were given to the mother. However, the mother sought to further exclude the father from the child's life. In this latest chapter, after an 18-month trial that included 25 days of testimony by the mother, Supreme Court Justice John Colangelo issued a 40-page decision, which noted that, “When left to her own devices, [the mother] misused her decision-making authority to trot a mentally healthy child to numerous psychological appointments clearly aimed to deprive him of a relationship with his father ' a result that may have, and if allowed to recur, certainly will rob [the boy] of his remaining childhood.”

The judge explained that numerous psychologists had been consulted, but when the mother could not get them to serve both as the boy's therapist and as witnesses for her in her custody fight, she moved on. She finally obtained the services of a psychologist who, she told the boy's father, had been recommended by the child's pediatrician; in fact the recommendation had come from her attorney in the custody matter. The judge also said the mother made it as difficult as possible for the father to maintain a relationship with the boy by doing other things, such as bringing the child's favorite toys and his puppy when she was turning the boy over to his father for visits.

The court stated, “While [the mother] claimed that she did so to encourage [the boy] to see [his father], it does not take a trained psychologist to surmise that such a display would have the opposite effect; after all, what [nine-year-old] would be overjoyed to exchange his mother, grandpa, toys and puppy for a car seat?” The judge was also critical of the elaborate means the mother used to prepare for testimony, such as getting coaching from an out-of-state psychologist and from a former soap opera actress.

Contrary to recommendations of the attorney for the child and the court-appointed psychologist, the judge ultimately gave primary physical custody to the father. The mother has filed notice of appeal and obtained a status quo temporary restraining to allow her to retain primary custody for now.

Timothy Tippins of East Greenbush, who served as trial counsel for the father, would not discuss the specifics of the case following the decision. Tippins, a columnist for the New York Law Journal , an affiliate of this newsletter, did state: “This is a very important decision. It is vey instructive not only for lawyers and judges, but also for forensic psychologists, for therapists who don't stay within the bounds of therapy and inject themselves in litigation roles, [and] for forensic consultants who are engaged to prepare a litigant for the interviews with the court-appointed evaluator.”

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New York Court Finds Pre-nup Fails Under Laws of Both Spain and Dominican Republic

Although a couple's divorce was being handled by a New York court, their prenuptial agreement was governed by Spanish law (the place of its signing) or Dominican law (the place where the marriage took place), and in both jurisdictions the agreement was unenforceable for failure to follow local law. M. v. M., 309652/12 (July 2).

The wife moved to set aside the parties' prenuptial agreement, which they signed in 2001. The wife was born in the Dominican Republic and had Italian citizenship, while the husband was a citizen of Spain, where the agreement was signed. The agreement purported to govern the disposition of property in the event of marriage and divorce, but was silent as to choice of law. The parties married in the Dominican Republic in 2002, moved to New York in 2004, and separated in 2008.

The wife requested equitable distribution and the husband interposed the agreement as an affirmative defense. The wife argued that both Dominican and Spanish law stated that a prenuptial agreement was unenforceable if the parties did not marry within one year of its execution. The court concluded the agreement was invalid under Spanish law, as the parties' marriage took place nearly 18 months after the agreement was signed. In addition, it was also invalid under Dominican law because the agreement was not recorded with the civil registry in the Dominican Republic.

Judge Says Mother Went Too Far to Push Father From Child's Life

A Westchester County judge has taken a nine-year-old child from his mother's primary care after finding that she is so intent upon keeping the boy's father out of his life that she therefore can no longer be trusted with primary physical custody. E.V. v. R.V., 10602/2007, dated July 2.

The parents of the boy whose custody is in issue have been in dispute since they were awarded joint custody seven years ago. Custodial custody and final decision-making authority were given to the mother. However, the mother sought to further exclude the father from the child's life. In this latest chapter, after an 18-month trial that included 25 days of testimony by the mother, Supreme Court Justice John Colangelo issued a 40-page decision, which noted that, “When left to her own devices, [the mother] misused her decision-making authority to trot a mentally healthy child to numerous psychological appointments clearly aimed to deprive him of a relationship with his father ' a result that may have, and if allowed to recur, certainly will rob [the boy] of his remaining childhood.”

The judge explained that numerous psychologists had been consulted, but when the mother could not get them to serve both as the boy's therapist and as witnesses for her in her custody fight, she moved on. She finally obtained the services of a psychologist who, she told the boy's father, had been recommended by the child's pediatrician; in fact the recommendation had come from her attorney in the custody matter. The judge also said the mother made it as difficult as possible for the father to maintain a relationship with the boy by doing other things, such as bringing the child's favorite toys and his puppy when she was turning the boy over to his father for visits.

The court stated, “While [the mother] claimed that she did so to encourage [the boy] to see [his father], it does not take a trained psychologist to surmise that such a display would have the opposite effect; after all, what [nine-year-old] would be overjoyed to exchange his mother, grandpa, toys and puppy for a car seat?” The judge was also critical of the elaborate means the mother used to prepare for testimony, such as getting coaching from an out-of-state psychologist and from a former soap opera actress.

Contrary to recommendations of the attorney for the child and the court-appointed psychologist, the judge ultimately gave primary physical custody to the father. The mother has filed notice of appeal and obtained a status quo temporary restraining to allow her to retain primary custody for now.

Timothy Tippins of East Greenbush, who served as trial counsel for the father, would not discuss the specifics of the case following the decision. Tippins, a columnist for the New York Law Journal , an affiliate of this newsletter, did state: “This is a very important decision. It is vey instructive not only for lawyers and judges, but also for forensic psychologists, for therapists who don't stay within the bounds of therapy and inject themselves in litigation roles, [and] for forensic consultants who are engaged to prepare a litigant for the interviews with the court-appointed evaluator.”

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