New York Matrimonial Trial Handbook
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The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Tuesday, November 13, 2012
In Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) Petitioner Lisandro Patrick was a national of the Dominican Republic and a Dutch citizen, who was permanently residing in the United Kingdom (England) when he filed a petition under the Hague Convention for the return of minor child L.N.R. in June 2012. Petitioner claimed respondent Noelia Rivera-Lopez, the mother of the infant, wrongfully removed L.N.R. on March of 2012 from England to Puerto Rico without petitioner's consent.
Petitioner Patrick and respondent Rivera-Lopez were married on June 8, 2010, in Lajas, Puerto Rico, after L.N.R. had been born. Petitioner Patrick submitted that, upon their marriage, he moved to England to set up a family home where respondent and her minor children joined him by January 11, 2011. Petitioner Patrick alleged the parties were all permanent residents of the United Kingdom where petitioner had been employed as a sales assistant, while he was attempting to convert his teaching qualifications so that he could begin working as a primary school teacher in the United Kingdom. Petitioner Patrick submitted that, since January of 2011, all the parties have been living in the United Kingdom as a family until March 6, 2012 when respondent Rivera-Lopez wrongfully removed the child L.N.R., and together with her older child, moved back to Puerto Rico. After several attempts to contact respondent, by March 11, 2012, she notified petitioner they would not be returning to the United Kingdom.
On June 22, 2012, petitioner Patrick filed an action under the Hague Convention. Respondent Rivera-Lopez filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The most relevant ground for dismissal of the petition was that he was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R.
The district court observed that a petition needs to first comply with the requirements set up in the Hague Convention prior to federal court having jurisdiction on the claim. The Court agreed with respondent that petitioner failed to comply with the requirements of wrongful removal under the Hague Convention inasmuch as respondent was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R. and granted the motion to dismiss.
The Court pointed out that Petitioner Patrick presented with the petition, and respondent included in the motion to dismiss, an affidavit where petitioner acknowledged, prior to L.N.R.'s birth, that the child, male or female, who was to be born from respondent was his. At the time, petitioner indicated he was domiciled in Puerto Rico. It was acknowledged that petitioner Patrick never registered L.N.R. as his daughter after her birth, during their marriage nor prior to the filing of the petition.
Respondent acknowledged petitioner and respondent were the natural parents of the minor L.N.R. and during her stay in England with her two children, they were residing with petitioner Patrick in the same place. The Court held that petitioner Patrick had to establish having rights of custody over L.N.R. that would allow the filing of the petition for return of the child under the Hague Convention to be proper. Respondent argued there was no parental responsibility agreement between the parties nor was there any action commenced where petitioner Patrick requested parental responsibility, guardianship or residence order as to the child. It was uncontested that respondent Rivera-Lopez was the mother of minor L.N.R., who was born in the year 2009 in the city of Mayaguez, Puerto Rico, and who was registered with the Puerto Rico Demographic Registry solely as the child of respondent Rivera-Lopez.
The Court did not need to hold a hearing to determine the child's habitual place of residence because, taking the averments of the petition as true under the motion to dismiss standard, it considered England to be the habitual place of residence of the child immediately prior to her alleged removal. Thus, it used the laws of England to
construe rights of custody of petitioner Patrick over minor L.N.R. The Court found that under the laws of England petitioner did not establish having rights of custody/ parental responsibility over minor L.N.R. Although the laws of England since the key
changes of the Children Act of 1989 were implemented, abandoned the notions of
rights of custody, there are equivalent residence orders and contact orders proceedings to determine any dispute between parents regarding their minor children and these orders encompass the parental responsibility predicate. For purposes of this petition, the law of England refereed to England and Wales.
The Court observed that when a father and a mother are married to each other at the time of the birth of the child, their joint parental responsibility is established at the time of the child's birth. This was not a factual predicate as to petitioner Patrick for at the time of birth of L.N.R. in 2009 they were residents of Puerto Rico and they were not married. Even had the parents been in England at such time, they were still not married until 2010. English law provides: [w]here a child's father and mother were not married to each other at the time of his birth- (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act. Children Act 1989 (c.41) Part I, s 2(2). Although the Children Act does not employ the word "custody" as a legal term of art, it provides in relevant part that: "[w]here a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child," which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children
Act ss 2(1), 3(1) (emphasis added); see Haimdas v. Haimdas, 720 F.Supp.2d 183 (E.D.N.Y.,2010). The most likely way to acquire parental responsibility between unmarried parents after a child's birth is being named as a father in the child's birth certificate. See Amendment to the Children Act of 1989 as reflected in the Adoption and Children Act of 2002, effective in December of 2003. It was undisputed that petitioner Patrick did not appear as the father of minor L.N.R. in her birth certificate. Minor L.N.R. was registered solely in the birth certificate issued in 2009 in Mayaguez, Puerto Rico, by the mother, respondent. Another way to acquire parental responsibility by a father is to make a formal parental responsibility agreement with the mother, which has to be made in the form prescribed under the laws of England and be signed before a court officer. Children Act of 1989 P 4(1)(b). No such formal agreement or court officer documented form had been presented in regard to the parental responsibility of petitioner Patrick. The law of England also allows two other means for unmarried fathers to acquire parental responsibility, that is, by having a parental responsibility order made in his favor under Section 4(1)(c) of the Children Act of 1989 or by having a residence order made wherein a separate Section 4 parental responsibility order must be made. Children Act of 1989, P 12(1).FN13 None of those means were used by petitioner Patrick in this case to acquire parental responsibility of L.N.R.
The inquiry did not end here. The Court examined whether the subsequent
marriage of petitioner Patrick and respondent Rivera-Lopez was sufficient to establish the necessary parental responsibility determination as to minor L.N.R. A stepfather who has married a woman with children may be able to obtain parental responsibility determination under the Adoption and Children Act of 2002 which prospectively is considered to have amended the Children Act of 1989. When parents are unmarried or those who were married after the birth of a child, a father may acquire parental responsibility by being registered as the child's father under the Children Act of 1989, as provided by subsections (1A); or if the father and the child's mother make an agreement providing for parental responsibility of the child or if the court on his application orders that the father shall have parental responsibility. Where the birth was registered after December of 2003, parents will have joint parental responsibility if the details of both parents and their signatures are shown in the child's birth certificate.
None of these situations were present in the instant case.
The Court held that petitioner Patrick failed to establish a prima facie case of wrongful removal under the Hague Convention inasmuch as he had not established that his custody rights were breached and that he was exercising the custody rights at the time of removal.
Petitioner's reply to the motion to dismiss juxtaposed that, as present residents of England, the laws of Puerto Rico would have concluded that upon the parties' subsequent marriage after the birth of L.N.R. on June 8, 2010, when they were
domiciled in Puerto Rico, the illegitimate child would have been legitimated by virtue of the marriage. Thus, the child was to be considered also legitimate under English law and petitioner as the legitimate father would have rights of custody to such a legitimated child. Petitioner referred to law of England at Legitimate Act of 1976, Part 1, Section 3 which provides that: where parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognized as having been so legitimated from the date of the marriage.
The district court found that the laws of Puerto Rico did not validate petitioner's averment as to a legitimated child, because a subsequent marriage would not automatically grant a child or children the paternity of the man who thereafter married the mother. Puerto Rico's legislative system allowed no room for liberal interpretation regarding facts of life recorded in Vital Statistics Registry of Puerto Rico and exceptions in its Sections 1041et seq. must be construed restrictively. See Leon Rosario v. Torres, 109 D.P .R. 804 (1980). The marriage of two individuals, whose children had been born prior to their marriage, who have not been registered by both contracting parties as theirs, will not be automatically considered as begotten by the married couple prior to such a marriage. Puerto Rico law requires that the recognition of a natural child be made in a public document or in an affidavit, and upon the presentation of the document or affidavit, the keeper of the Register of Vital Statistics would proceed to register it, and, for that purpose, the corresponding certificate of registration must be filled out. See Ramos v. Rosario, 67 P.R.R. 641 (1947).
Petitioner Patrick never presented to the Puerto Rico Vital Statistics Office the affidavit referred to in his petition where he claimed having recognized the minor L.N.R. who was to be born from respondent Rivera Lopez. For these reasons the court was not in a position to recognize whether the document would be considered as establishing, without more, the paternal rights of petitioner Patrick under Puerto Rico laws or if it would have been accepted as sufficient by the keeper of the Register to recognize L.N.R. as the child of petitioner and respondent. Petitioner did not go either to the Demographic Registry in Puerto Rico to recognize L.N.R. as his daughter following the readily available established procedure for a father to recognize a child as his son or daughter.
The Court dismissed the petition finding that Petitioners parental rights had not been previously established for the Court to exercise its limited jurisdiction under the Hague Convention.