Nassau

Published on: June 19, 2014

Petitioner Files Action to Adopt Son

by Stephen Bilkis

A New York Family Lawyer said a couple entered into a written separation agreement and was divorced by the decision of the Supreme Court. Subsequently, the woman married another man and moved into the man’s residence. The woman and her new husband filed a petition for the adoption of the woman’s son. It was alleged in the petition that the consent of the child’s father, the woman’s former husband, was not necessary because he abandoned the child.

A New York Child Custody Lawyer said the child’s father then moved for an order enforcing the visitation provisions of the separation agreement. The father’s order to show cause contained a term barring the woman from prohibiting visitation during the pendency of the case. The woman however moved for restriction and suspension of any visitation pending a determination of the adoption proceeding, seeking to hold the child’s father in contempt of court for failing to pay child support, seeking to consolidate the motion in Supreme Court with the adoption proceeding pending in Surrogate’s Court, and seeking an award of counsel fees.

A Brooklyn Family Lawyer said by order, the justice directed that the adoption proceeding in the Surrogate’s Court be consolidated with the proceedings in the Supreme Court. The matter was set for a trial as the submitted papers were complete with factual issues.

Published on: June 18, 2014

Complainant Files Action to Direct Sale of Real Property

by Stephen Bilkis

A New York Family Lawyer said complainant seeks a decision compelling and directing the sale of a real property owned by a couple. The complainant states that they brought an action against the couple to recover $24,371.56. The attorney further states that a decision was duly entered in the action in favor of them for $24,371.56. The attorney also asserts that the decision was duly filed and docketed in the office of the clerk and a balance of $31,793.88, to wit the original judgment plus interest remains unpaid.

The attorney stated all of the complainant’s attempts to collect the amount due. The attorney also asserted that the couple is the current owner of the real property, exceeding $50,000.00 in value with an assessed value of approximately $350,000.00 based upon information and belief.

The woman states, in an opposing affirmation, that she is the current owner of the subject property. The affidavit of the woman makes clear that no real marriage exists. The woman’s attorney stated that the man abandoned the woman and their child. The man left the marital residence and never returned without leaving a forwarding address. The woman’s attorney points out that the family doesn’t know where the man resides and don’t even received any support from the man. Further, the man currently owes the woman over $17,000.00 in child support arrears. The woman’s attorney also points out that the woman has child support problems with another relationship, and additional details about the man’s posture as a judgment debtor.

Published on: June 16, 2014

Wife Petitions for Share of Marital Residence

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered August 5, 1981, the plaintiff wife appeals from so much of an order of the Supreme Court, Nassau County, entered June 29, 1987, as denied that branch of her cross motion which was for the appointment of a receiver pursuant to Domestic Relations Law § 243, and the sequestration of the defendant husband’s equitable share of the net proceeds from the sale of the parties’ former marital residence, and the defendant cross-appeals from so much of the same order as granted the plaintiff counsel fees in the sum of $1,500.

A New York Custody Lawyer said the parties were married on August 24, 1968. There is one child of their marriage, born on May 17, 1977. On August 5, 1981, a Nassau Divorce Lawyer said that the plaintiff was granted a judgment of divorce. The judgment provided, inter alia, that the plaintiff would receive custody of the parties’ minor child and exclusive possession of the former marital residence. Furthermore, the judgment directed the defendant to pay to the plaintiff $75 per week child support. As a result of several proceedings in the Family Court in which the defendant sought a downward modification of the divorce judgment’s support provision and the plaintiff moved for an order enforcing the defendant’s support obligations, the support provision was reduced to $100 biweekly, payable through the Nassau County Department of Social Services Support Obligations Unit.

A Staten Island Family Lawyer said that, the Supreme Court, Nassau County, in an order dated February 18, 1986, directed that the former marital residence be sold and increased the defendant’s biweekly support payment to $160. In April 1986 the plaintiff moved for leave to enter judgment for support arrears and an order appointing her receiver and sequestrator of the defendant’s equitable interest in the former marital residence pursuant to Domestic Relations Law § 243. The Supreme Court, Nassau County, by order dated May 7, 1986, awarded the plaintiff arrears but denied that branch of her motion which was for sequestration and the appointment of a receiver.

Published on: June 14, 2014

Petitioner Files Paternity Petition

by Stephen Bilkis

A New York Family Lawyer said a man filed a paternity petition requesting that an order be made declaring him to be the father of a child.

The man and the mother were present at the trial and the documents reflect that the court already noted the paternity of the child. An acknowledgment was then produced which declared that another man was the father of the child. The court then appointed a law guardian to represent the child.

A New York Custody Lawyer said the other man stated that he raised the child for six years and the child calls him papa. The mother also told the child that he was his father.

Published on: June 13, 2014

Court Orders Respondent to Submit DNA for Paternity Testing

by Stephen Bilkis

A New York Family Lawyer said the matter before the Court is a motion brought by the Deputy Court Attorney’s Office, on behalf of the Nassau County Department of Social Services (DSS), seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual. The Deputy County Attorney then submitted reply papers, arguing neither the law guardian nor respondent have established that the child would be irreparably harmed if DNA testing was ordered.

A Nassau County Child support Attorney said that this matter was initiated when DSS filed a petition for paternity and support against respondent. The Presiding Magistrate referred the matter to the Court once the issue of equitable estoppel was raised.

A New York Child Custody Lawyer said the doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.

Published on: June 12, 2014

Petitioner Seeks Increase of Child Support Payments

by Stephen Bilkis

A York Family Lawyer said this is an action to recover the value of legal services provided to plaintiff’s client in connection with support proceedings wherein defendant was the named respondent. This matter appears before this Court upon the following stipulated facts.

A Nassau County Family Attorney said that in May 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties’ children. By Mexican decree, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

In January 1977, defendant’s former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant’s children.

Published on: June 11, 2014

Wife Appeals Denial for Child Support Arrears

by Stephen Bilkis

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, which denied her motion for leave to enter a judgment for child support arrears.

A Nassau County Family attorney said that the plaintiff and the defendant were married in Glendale, New York in 1959. They separated in 1980 when the defendant moved to California, and were divorced by a 1982 judgment of the Supreme Court, Nassau County, which awarded custody of the parties’ unemancipated children to the plaintiff. The 1982 judgment was subsequently amended by a judgment, which required the defendant to pay child support in the sum of $50 per week for each unemancipated child.

A New York Custody Lawyer said in 1985 the plaintiff commenced a proceeding in the Nassau County Family Court pursuant to Domestic Relations Law article 3-A, the Uniform Support of Dependents Law (hereinafter USDL), seeking an increase in support for the parties’ two youngest sons. The proceeding was thereafter transferred to the Los Angeles County Superior Court, and thereafter, that court issued an order directing the defendant to make increased support payments of $300 per month per child until the children reached the age of 18, which is the age of emancipation under California law. When the children reached the age of 18 six months later, the California court terminated the defendant’s obligation to make support payments on his behalf through the court trustee. After the youngest son reached the age of 18 in 1988, the California court trustee administratively closed its case.

Published on: May 30, 2014

Court Rules to Discontinue Petitioner’s Grant of State Aid

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated March 19, 1982 and made after a statutory fair hearing, which affirmed a determination of the local agency to discontinue petitioner’s grant of Aid to Families with Dependent Children. A Nassau Child Support Lawyer said that, the petition was granted to the extent that the determination is annulled, on the law, without costs or disbursements, petitioner’s grant is reinstated and she is awarded all public assistance withheld from her pursuant to the determination dated March 19, 1982, and the matter is remitted to the Commissioner of the Nassau County Department of Social Services to commence a child support proceeding, in the Family Court, Nassau County, against petitioner pursuant to subdivision 1 of section 102 of the Social Services Law.

A Nassau Family Lawyer said that, by order of the Family Court, Nassau County, entered August 22, 1980, custody of the subject child was awarded to petitioner, her maternal grandmother. In late 1981, the subject child’s mother, moved back into the household. Although the mother was employed and earning approximately $100 per week, she refused to in any way support her daughter.

A New York Custody Lawyer said that, on December 4, 1981, the local agency notified petitioner that it intended to discontinue the AFDC benefits on behalf of the subject child effective December 14, 1981, on the ground that the income of a legally responsible relative, who was residing in the same household as the recipient, was available for her child support. Petitioner requested and was granted an administrative hearing to challenge the agency’s determination. In her decision after fair hearing, the State commissioner confirmed the agency’s determination, finding that “the record and credible evidence establish that the subject child’s mother is legally responsible for the support of her daughter, the subject child herein”. The commissioner further noted that the subject child’s mother could re-apply for public assistance on behalf of herself and her daughter in the event that her income was insufficient. Petitioner thereupon commenced the instant proceeding pursuant to CPLR article 78 on behalf of the subject child seeking review of the aforesaid decision.

Published on: May 24, 2014

Petitioner Seeks to Evict Former Girlfriend from Residence

by Stephen Bilkis

A New York Family Lawyer said that in this summary licensee holdover proceeding brought under RPAPL 713 (7), petitioner seeks to evict respondents, his former girlfriend, their three-year-old son; and petitioner’s daughter from a different relationship.

A Nassau County child support attorney said that petitioner and Respondent’s relationship has turned sour. Pending in Criminal Court, New York County, is a prosecution against Petitioner for the class “A” misdemeanor of Aggravated Harassment allegedly committed against Respondent. Criminal Court in that action has issued a temporary order of protection against Petitioner in Respondent and the son’s favor. Also pending are custody, visitation, and support proceedings in Family Court, New York County. Family Court has awarded temporary custody of the son to Respondent.

A New York Child Custody Lawyer said the respondents now move to dismiss the petition or, in the alternative, to stay this proceeding pending Family Court’s final determinations. She argues that Petitioner may not bring a licensee proceeding against Respondent. According to Respondent, she is not a licensee whose license Petitioner may revoke.

Published on: May 22, 2014

Court Charges Husband with Retroactive Child Support

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant former husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, which, after a nonjury trial, and upon a finding that the plaintiff former wife was entitled to 50% of the value attributable to the marital portion of his law license, inter alia, directed him to pay a distributive award in the amount of $690,953.50, maintenance in the amount of $42,000 per year for a period of 15 years and $24,000 per year thereafter until the death of either party, and child support in the amount of $31,972 per year, and the plaintiff former wife cross-appeals from so much of the same judgment as, upon a finding that she was entitled to only a 40% share of the defendant former husband’s interest in his law firm, awarded her as part of the distributive award a sum of money equivalent thereto, failed to award her retroactive child support and maintenance, and directed the defendant former husband to pay child support in the amount of only $31,972 per year.

The court held that “Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout”. It is impossible to determine from the record before us whether the Supreme Court impermissibly engaged in the “double counting” of income when valuing the defendant former husband’s enhanced earning capacity, together with his interest in his law firm, and which values were then used in equitably distributing the marital property, and in determining the award of maintenance to the plaintiff former wife. Here, in valuing and distributing the marital portion of the defendant’s law license, the Supreme Court converted a certain amount of his projected future income stream into an asset.

However, a New York Child Custody Lawyer said since the Supreme Court used one method in determining the defendant’s enhanced earnings and a separate, possibly overlapping, method in valuing his interest in his law firm and failed to explain how it amalgamated the two methods and kept them from overlapping, it is impossible to tell whether or not the Supreme Court erred in its determinations as to maintenance, child support, and equitable distribution. Thus we remit the matter to the Supreme Court, Nassau County, to address this issue, and, if necessary, to recalculate those awards. Since we are remitting this matter for further proceedings, including, inter alia, the possible recalculation of the awards for child support and maintenance, we note that in its recent decision in a case, the Court of Appeals addressed the issue of child support, and further note our admonitions regarding the interplay of, inter alia, maintenance and child support.