New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.


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Wednesday, July 24, 2013

Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) [Mexico] [Well-Settled]

In Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) Not for Publication, Jose Leonides Varillas Broca appealed from the judgment of the United States District Court, denying Varillas's petition for the repatriation of his three children under the Hague Convention. Varillas appealed the determination that his youngest child, JV, was well settled in the United States, such that JV's return to Mexico was not required under Article 12 of the Hague Convention. Varillas's oldest child turned sixteen during the pendency of the proceedings, thus the Hague Convention no longer applied to him. As to the middle child, the district court denied the request for repatriation, concluding that she was well settled, and that she was sufficiently mature that her objection to returning to Mexico should be taken into account. Varillas did not appeal this determination. Varillas primarily argued that the district court improperly considered the importance of keeping JV together with his siblings in deciding that JV was well settled." The Second Circuit reviewed the district court's interpretation of the Convention de novo and its factual determinations for clear error." Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375, at *3 (2d Cir. June 13, 2013). It pointed out that if Hague Convention proceedings are initiated within a year of a child's wrongful removal, then Article 12 requires the court to order repatriation of that child, unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Respondent bears the burden of proving this exception by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B). It noted that it has discussed the "[f]actors that courts consider" in determining whether a child is well settled, which "should generally include": (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir.2012), cert. granted in part, No.12-820, 2013 WL 56044 (U.S. June 24, 2013). While useful, these factors are neither mandatory nor exclusive. "[C]ourts are permitted to consider any relevant factor surrounding the child's living arrangement-without limitation." The test is a "fact-specific multi-factor" test, in which no factor, including immigration status, is dispositive. Here, the district court considered the above factors in determining that JV was well settled. Under Lozano, the court rightly considered JV's relationship with his mother and siblings in reaching its conclusion. Even though the court emphasized this factor in its final balancing analysis, it was one of many considerations. Reviewing the record as a whole and focusing on the Lozano factors, the Second Circuit agreed that JV was well settled in the United States. JV's consistent school attendance, involvement in church, and strong relationships with friends and relatives in the area, in particular his mother and sister, all supported a conclusion that he was well settled. His immigration status, lack of residential stability, and poor performance in school, as well as his mother's lack of financial stability, counselled against a conclusion that he was well settled. Nonetheless, in the overall balancing, it concluded that the exception applied.