Child Support

Published on: August 31, 2012

Parent Seeks to Relocate Child

by Stephen Bilkis

This case arose from a divorce proceeding which was commenced in Massachusetts. Respondent’s physical custody of the two minor children was initially pursuant to the parties’ May 21, 1993 separation agreement. A New York Family Lawyer said that agreement provided for joint custody, with primary physical residence with respondent and liberal visitation with petitioner. It further provided that petitioner would pay child support to respondent in accordance with the Massachusetts Child Support Guidelines, and that “[t]his Agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts.”

A judgment of divorce incorporating the separation agreement was entered in Massachusetts on April 13, 1994.

In 1995, Respondent relocated to Buffalo, New York with the parties’ two children in accordance with an agreement entered in by the parties in a Massachusetts Proceeding which sought the court’s authorization to relocate the children to Buffalo, New York. The said agreement further provided that “Massachusetts will retain jurisdiction over the children and the parties to the extent otherwise consistent with law and for so long as petitioner remains a resident in the Commonwealth.”

Published on: August 29, 2012

Court Hears Case Regarding Child Neglect

by Stephen Bilkis

In a contested child protective and child custody proceeding, the administration for children’s services sought an order directing the removal of the child from the home of the paternal grandmother who resides in Virginia. The motion is supported by the law guardian and opposed by the parents of the child.

The administration for children’s services filed a neglect petitions against the parents of the child alleging that they neglected the child by inflicting excessive corporal punishment causing numerous marks and bruises on the child’s body. A New York Family Lawyer said the petitions allege that the child was beaten by the mother with an extension cord and punched by both parents. In addition, the petitions allege that the father is a person legally responsible for the child because of the fact that he is married to the child’s mother. Lastly, the petitions allege that the other two children of the parents are derivatively neglected children.

On the day the petitions were filed, a hearing was conducted and granted the application for the remand, directing that the child will be placed with the maternal great-grandfather and that the two younger children be placed together with kinship resources. During the months that followed the initial removal, the two younger children were moved several times and are currently in their second non-kinship foster home.

Published on: August 27, 2012

Mother Seeks Modification of Visitation Arrangement

by Stephen Bilkis

On a motion for a change of child custody by a father whose former wife has breached the restrictive residence provision of a non-merged separation agreement by surreptitiously removing the children of the marriage to California, two equally strong policies are contra posed to each other. A New York Family Lawyer said the policy of courts to jealously protect the visitation rights of a non-custodial parent, and on the other, the policy of deferring jurisdiction of custody disputes to that jurisdiction best able to hear all relevant evidence concerning the children’s past, present and future circumstances.

The court determines that it is in the children’s best interests that the matter be heard in California, where nearly all the relevant evidence can be found. The case involves neither child snatching nor forum shopping. Moreover, the papers before the court strongly suggest that the father is not, at present, a fit custodian of the children whereas the mother has made a strong showing that the children’s welfare has substantially improved in California. A Nassau County Family Lawyer said that since the court is confident that the California courts will be sensitive to the father’s visitation rights, the court declines to exercise its jurisdiction on the condition that appropriate proceedings should be promptly commenced in the California courts.

In a separation agreement dated June 22, 1982, the complainant mother and the father agreed that the mother would have the child custody and the father would have reasonable rights of visitation upon 48 hours notice. It was further agreed that the mother would not remove with the children more than 200 miles from New York without the father’s consent.

Published on: August 25, 2012

Wife Contends Court Erred in Distributing Marital Assets

by Stephen Bilkis

The court is called upon to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child may no longer have any inclination or desire to see her father again. A New York Family Lawyer said as equally important, the court must also determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother, herself an advocate for the rights of women in divorce actions.

One of the most difficult decisions a Judge has to make is that which impacts upon the life of a child. The law has long recognized the special place and role of the court in deciding issues relating to children and the long term impact that our courts have on the life of a child.

The parties were married in August 1973. The wife is 52 years of age and the husband is 56 years of age. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. A Nassau County Family Lawyer said the two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain un-emancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

Published on: August 24, 2012

Court Hears Jurisdiction Issue

by Stephen Bilkis

An Italian-born American woman married another American in the United States in August 1992. They went to Italy where their only son was born in July 2001. The child has Italian and American citizenship.

A New York Family Lawyer said the couple divorced in April 2004 in New York but the divorce decree did not rule on the custody or visitation issue because New York was not the home state of their son as he has lived only nine months in New York prior to his parents’ divorce.

The mother returned to Italy with her son to apply with the Italian courts for a determination of the custody and visitation issue. The Italian court awarded the mother sole custody of their son and gave visitation rights to the father. The Italian court went further and allowed the mother to decide whether she wants to reside in Italy or the United States as long as the father is not deprived of his right to visitation.

Published on: August 22, 2012

Court Decides Jursidiction Issue

by Stephen Bilkis

Petitioner mother and respondent father were married in Colorado in 1979. They had a child born in Wyoming. Thereafter the mother filed for divorce in Wyoming. A New York Family Lawyer said at about that time, the mother moved with the child to New York, where they have resided since. During the divorce action, the parties entered into an agreement resolving the issues of child custody, visitation, and support.

The mother was granted custody of the child in New York and the father was awarded liberal visitation, including extended summer visitation with the child in Wyoming. A Nassau County Family Lawyer said that settlement agreement was incorporated into the divorce decree rendered by the Wyoming District Court. In 1991, the father brought an application in Wyoming to enforce his visitation rights and prevent the mother from interfering with visitation. The parties reached a stipulation. The Wyoming District Court issued an amended divorce decree incorporating the terms of that stipulation.

The mother petitioned Chautauqua County Family Court for an order modifying visitation.

Published on: August 17, 2012

Child Custody Dispute Arises Over Mother Relocating

by Stephen Bilkis

On March 2007, a father filed an action in court for child custody. However, the mother cross petition the action. Each of the parties testified in their own behalf and the father of the child called his mother to stand as a witness.

A New York Family Lawyer said that n the evidence and testimonies presented, it revealed that the mother of the child was born and raised in Florida, where she lived with her mother and father until her parents got a divorce when she was 17 or 18 years of age. She continued to live with her father until she was 22 and got her own apartment. On 2002, she met the child’s father, exchanged phone numbers and began talking on the phone a few times a week. This continued for a few months until they actually met in person when the mother came with a friend to New York for a vacation. The father testified that they met up one night to hang out and had a couple of drinks. After the mother returned to Florida, the parties continued to speak over the telephone and on May 2004, the mother invited the father down to Florida for the weekend. Their relationship started and became intimate. At some point during their relationship, they made the decision to have a child together.

In October 2004 the mother learned she was pregnant. That same month, the father took his two-week vacation and went to Florida to be with the mother. A Nassau County Family Lawyer said he also brought his daughter with him. The couple discussed the possibility of the man’s moving to Florida so, while he was there, he looked for a job in maintenance by posting his resume on a Web site and checking the local newspapers. At the end of October 2004 the mother was terminated from her job as a general claims clerk for taking more time off from work than her allotted annual leave. The man then offered the mother to live in New York since he had a stable job and home there.

Published on: August 15, 2012

Court Decides Lack of Jurisdiction Issue for Division of Property

by Stephen Bilkis

This is a case being heard in the Court of Appeals in the State of New York. The appellant in this case is Ellen Corcoran, who is the executrix of the estate of John J. O’Connell, deceased. The respondent in this case is Maureen O’Connell.

Case Background

The respondent, Maureen O’Connell was married to the appellant, the deceased John J. O’Connell in 1959. The couple had eight children during their marriage. Each of the children are now emancipated. The plaintiff moved out of the marital residence in 1982 and began a divorce proceeding in New York. This divorce procedure was based on inhuman and cruel treatment.

Published on: August 13, 2012

Plaintiff Asks for an Increase in Support

by Stephen Bilkis

This is a case being heard in the Special and Trial Term of the Supreme Court located in New York County. The plaintiff in the matter is Ethel Phillips and the defendant is Gilbert L. Phillips. The plaintiff is seeking a separation from the defendant, who is her husband. Ms. Phillips alleges that the defendant has treated her cruelly and fails to provide fro her. The defendant denies these allegations and has entered a counterclaim seeking an annulment from the marriage. The defendant states that their marriage should be annulled because the plaintiff was still married to another individual at the time the couple was married.

Case Background

On the last day of March in the year 1950, the plaintiff obtained a divorce from her husband, Mr. Moss. This divorce was obtained in the state of Georgia in the Superior Court of Richmond County. At the time of the divorce the plaintiff stated that she had been a resident of Georgia for over a year before instituting the action for divorce. However, the plaintiff was actually still a New York state resident at that time. A New York Family Lawyer said he had only been in Georgia for a couple of days and visited the state for the purpose of obtaining the divorce and no other reason. She had not established a residency in the state of Georgia. Moss, the plaintiff’s husband acknowledged the action in the Georgia court and did not contest the divorce. The decree from the Georgia court states that the divorce was granted to the plaintiff on the 31st of March, 1950. After the divorce took place, the plaintiff’s ex-husband Moss took on another spouse.

Published on: August 11, 2012

Custody Battles are Damaging to Children

by Stephen Bilkis

Jurisdiction is an important issue in child custody hearings. Often the parents of the child live in different court jurisdictions, or even different states. A New York Family Lawyer said the courts must work with the parents to determine which court system will have jurisdiction over the matters that are involved in each case. In one Suffolk County case, the parents’ divorce was finalized in the Nassau County Family Court in 2002. Following that action, the mother was granted primary custody of the child of the union. She relocated to Suffolk County.

Since the time that the divorce was finalized and the mother moved to Suffolk County, the Suffolk County Family Court has handled at least one motion to adjust the visitation schedule that the couple had in place to manage the visitation of the child. In 2008, the father of the child made a motion to the Nassau County Family Court to change primary custody over to him. The mother filed a cross-motion to deny the father’s motion and to have all jurisdiction over future motions transferred to the Suffolk County Family Court. The mother maintains that the father has moved to Suffolk County in the years since the divorce was finalized. A Nassau County Family Lawyer said that means that at the time of this particular motion, the mother, father, and the child are all living in Suffolk County and no one is living in Nassau County.

The Supreme Court reviewed the motions and determined that the proper venue of any motions in this case would be the Suffolk County Family Court. They contend that since all concerned parties are living in Suffolk County, it only makes sense that the court system to handle their case should also be Suffolk County. The court also appointed a Law Guardian for the child.