Nassau

Published on: November 7, 2013

Court Decides Out of State Custody Arrangement

by Stephen Bilkis

The parties were married in California in March 1971, in which state their only issue was born in 1973. The parties were divorced in 1975 and under the decree the California court gave custody of the child to petitioner-respondent mother subject to reasonable rights of visitation. A New York Family Lawyer said that thereafter, the California court made an order, based upon a stipulation between the parents, modifying the visitation and support provisions of the divorce decree. The mother was permitted under the order to move to Syracuse, New York and maintain the child’s physical and legal custody, and the father was granted rescheduled visitation rights at his California residence and directed to pay all travel expenses of mother and child related to visitation. In September 1977 the mother returned the child to the father in California in compliance with the child visitation schedule and during the stay the father instituted a modification proceeding in the California court.

A New York Custody lawyer said that pending the hearing the court awarded custody of the child to the father and directed that the child not be removed from its jurisdiction. Thereafter, the California court made an order (1) adjudging that pending a further hearing in the matter, “California has jurisdiction to make a child custody determination and other orders under the Uniform Child Custody Jurisdiction Act”, (2) awarding the father legal and physical custody of the child with reasonable rights of child visitation to the mother in California “pending completion of the custody investigation”, (3) directing that neither party “shall remove the minor child from the jurisdiction” of the California court, and (4) directing a formal custody investigation by the San Mateo County Probation Department and that a written report be filed with the court, “all other issues being reserved for future determination”.

Although the mother claims that no formal hearing was ever held in California at which she could present witnesses and that no decision in writing was received by her from the California court, it is not disputed that she, the father and their attorneys appeared in the proceeding, at which time the father claims that the testimony of both parties was received and a probation interview of all the parties and others was conducted. A Nassau County Family Lawyer said the California court order recites the appearance of both parties in person and by their attorneys and the hearing of testimony. Further, the father claims that the probation report referred to in the order of the California court was completed and notice thereof sent to both attorneys.

Published on: October 26, 2013

Court Dissolution Involving Emancipated Children

by Stephen Bilkis

A New York Family Lawyer said this proceeding consolidates, only for purposes of decision, two matrimonial actions with similar facts. In both matrimonial actions, the court granted a Judgment of Divorce based on express sworn statement and Findings of fact that there were no children of the marriage. In both of those cases, the Court has discovered that there were unemancipated children of the marriages whose support was not provided for in the proposed or signed orders. Also, in both matrimonial actions, the parties are entangled in separate mortgage foreclosure lawsuits.

Based on the complaint, filed by Atty. IS on behalf of Ms. N.C., the parties were married in Haiti in 1992 and there were no children of the marriage. On 21 January 2010, the plaintiff signed a verification of the complaint notarized by her attorney, Atty. IS. There are two different summonses with notice. In one summons with notice, Atty. IS cautions the parties, inter alia, not to remove the children of the marriage from any medical, hospital, or dental plan.

A New York Custody Lawyer said the divorce action had been assigned to the Judge as an uncontested matrimonial not involving children. The Matrimonial Clerk’s Office made the assignment as such since the complaint filed by Atty. IS, signed by him, and verified by his client stated: “There are no children of the marriage.” The plaintiff, N.C., in her own affidavit, stated: “There are no children of the marriage: Not Applicable.” Her affidavit was signed and notarized on 14 September 2010, and the notary was her attorney, IS. The Findings of Fact also recited: “There are no children of this marriage.” These repeated statements turned out to be false.

Published on: October 3, 2013

Court Decides Paternity Issue

by Stephen Bilkis

A man filed a verified petition seeking an order of the court vacating an order of filiation entered upon his admission. He had appeared before Hearing Examiner and admitted that he was the biological father of a boy who was born out of wedlock on January 25, 1988. A New York Family Lawyer said in support of his present application, the man asserts that he has obtained a DNA test to exclude him as the father.

After answering papers were filed by the child’s assigned Law Guardian and the County Attorney on behalf of the mother and the Suffolk County Department of Social Services (DSS), the issue of the admissibility and weight to be given to this privately arranged DNA paternity test was placed squarely before the court.

The DNA test which is the driving force behind this litigation was performed under unusual circumstances. In early January of 1999 the man telephoned a nationally syndicated television talk show called. He offered to provide a DNA sample and appear as a guest to argue that he was not the boy’s father. A representative of the show then telephoned the mother. A New York Custody Lawyer said she was equally convinced that DNA results would show that the man was the father; she agreed to provide samples of her own and the boy’s DNA. The mother’s decision was a necessary foundation for the upcoming show and eventually for this litigation.

Published on: September 28, 2013

Court Relieves Law Guardian from their Duties

by Stephen Bilkis

In this Order of protection case, the Law Guardian was relieved and new counsel assigned to represent the child’s interests. Respondent mother’s counsel asserts that during the fact-finding hearing, while the caseworker for the Administration for Children’s Services was testifying, the Law Guardian read a People/Us magazine under her desk and text messages on her cell phone. A New York Family Lawyer said that in addition, counsel for respondent mother notes that the Law Guardian asked the caseworker no questions during cross-examination. According to counsel for respondent mother, “the last straw” was during an off-the-record bench conference, when the Law Guardian stated her support for the agency’s position. At that point, counsel contends that he became very upset, because the Law Guardian appeared to fail to pay attention to the testimony during the trial, yet took a position against his client.

A New York Child Custody Lawyer said that the motion is opposed by the Law Guardian. She emphatically denies that she was reading a magazine, although she admits that there was one on her desk. She also denies that she was reading text messages asserting, “there is no cell phone service in the court.” The Law Guardian asserts that she has diligently represented her now five-year-old client’s interests. Specifically, she asserts that she met with her client twice, conducted an extensive and thorough investigation and made a determination to advocate for a resolution that she believed to be in the child’s best interests. She asserts that although she did not wish to cross-examine the caseworker, she was paying very close attention and is knowledgeable about all of the facts and circumstances at issue in this case.

Counsel for respondent maternal great-grandmother has submitted an affirmation which essentially supports the observations of respondent mother’s counsel about the Law Guardian’s actions, although he takes no position in support of, or opposition to, the motion. A Nassau County Family Lawyer said after having carefully considered the papers submitted, the Court finds the affirmation submitted by respondent mother’s counsel devoid of viable evidence indicating any bias on the part of the Law Guardian, ineffective assistance of counsel, failure to diligently represent the child’s interests or other recognized grounds for disqualification. The motion is denied.

Published on: September 17, 2013

Court Discusses Order for Protection

by Stephen Bilkis

In an action for divorce, a New York Family Lawyer said the wife has made two applications for orders directing her husband to leave their marital home, to provide support and maintenance for her and to restrain him from removing furnishings, furniture and personal possessions from the residence.

When the motions were originally submitted, the court discovered that an application for an order of protection was being sent to the court for determination. An inquiry to the court confirmed the said information. In view of the fact that the actions concerned relief associated with the family court proceeding, the court referred them to the family court for hearing and decision.

Based on records, referral of the motions was not made without authority nor was it intended to enlarge the court’s jurisdiction. The family court has original jurisdiction over support proceedings and the applications for support and custody in matrimonial matters.

Published on: September 13, 2013

Defendant Appeals Order for Retroactive Child Support and Counsel Fees

by Stephen Bilkis

In an action for a divorce and ancillary relief, in which the parties entered into a stipulation of settlement in open court, the complainant appeals from an amended order of the Supreme Court which awarded the defendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support in the sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sum of $1,666.

A New York Family Lawyer said the amended order is modified, on the law, by deleting the provision thereof directing that the complainant pay retroactive child support in the sum of $24,199.20, and substituting therefore a provision directing that the complainant pay retroactive child support in the sum of $13,225.40; as so modified, the amended order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court for the entry of an appropriate second amended order in accordance herewith.

An award of counsel fees pursuant to Domestic Relations Law is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case. In determining whether to award counsel fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. A New York Custody Lawyer said the counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation.

Published on: September 9, 2013

Appellant Unable to Keep Up with Support Obligations Due to Unemployment

by Stephen Bilkis

In a proceeding pursuant to Family Court Act § 454 to enforce an order of support, appellant appeals from an order of the Family Court, Suffolk County which committed him to the Suffolk County Jail for a term of one month.

A New York Family Lawyer said that in a hearing to determine whether an order of commitment should be issued, the appellant testified to his lack of steady employment over the previous several months due in large measure, to his recent felony convictions. The appellant also provided information concerning his recent income and expenses, which included substantial amounts expended to make restitution in connection with his recent convictions. The Court find that the evidence provided by the appellant clearly demonstrated his present financial inability to make child support payments required of him. Under the circumstances of this case, the commitment of the appellant is unwarranted

A New York Custody Lawyer said that since December 1976, the appellant has been subject to an order of support for his child in the amount of $20 per week. Because of the appellant’s failure to make regular payments and the arrears which accrued, a petition for violation of the support order was filed pursuant to Family Court Act § 453. Following an inquest, the court found that the appellant had willfully failed to make the required support payments. No dispositional order was entered at that time but a warrant for the appellant’s arrest was issued. Thereafter, the order of child support was vacated retroactively, presumably because the parties’ child had reached the age of majority. The accumulated arrears were calculated at $2,532.

Published on: September 5, 2013

In a Divorce Action Couple Deals with Mortgage Payments

by Stephen Bilkis

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, as directed her to delete the last paragraph from a proposed mortgage note and paragraph 20 from a proposed mortgage which were to be executed by plaintiff in connection with a transfer of defendant’s interest in the former marital residence.

A New York Family Lawyer said that the parties herein were married sometime in 1972, and have two children, presently aged 10 and 8, respectively. Marital difficulties arose thereafter and in 1981, plaintiff served a summons and complaint upon defendant seeking a divorce on the ground of cruel and inhuman treatment. Defendant interposed a counterclaim for divorce based upon constructive abandonment.

At an inquest conducted, a stipulation was entered into regarding the distribution of marital property, and child support.

Published on: September 4, 2013

Court Discusses Equitable Estoppel Doctrine

by Stephen Bilkis

This matter was referred to the court by a Child support Magistrate, for the purpose of inquiry into the question of whether the petitioner may invoke the equitable estoppel doctrine in this paternity matter.

A Suffolk County Child support attorney said that the court set a briefing schedule; all papers have now been filed and the court has marked this matter for submission and decision.

A New York Family Lawyer said the burden is upon the petitioner to prove, prima facie, that it is entitled to assert the doctrine of equitable estoppel. In support of its position, the Commissioner admits that on three prior occasions, dating from July 1999, the Commissioner filed three separate petitions seeking to establish orders of paternity and child support against this respondent, and that with respect to all three prior petitions, each was dismissed for failure of the assignor to cooperate and for her failure to appear on the various scheduled court dates.

Published on: August 31, 2013

Father Seeks to Obtain Child Support

by Stephen Bilkis

In a child support proceeding, the father appeals from an order of the Family Court which denied his objections to two orders of the same court which awarded the petitioner with child support based on a determination of his gross income and counsel fee.

A New York Family Lawyer said the order is modified on the law and as a matter of discretion, by deleting the provision thereof denying the appellant’s objection to the order directing him to pay a counsel fee in the sum of $20,000, and substituting a provision sustaining the objection to the extent of directing him to pay a counsel fee and deleting the provision thereof denying his objection to the order awarding the mother child support and substituting a provision sustaining the objection to the extent of granting his application for a mortgage payment credit against his investment income on his investment property; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court for further proceedings consistent herewith, including a new determination of child support.

Although the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless to be controlled by the equities of the case and the financial circumstances of the parties. Given the financial circumstances of the parties, as well as all the other circumstances of this case, the Family Court improvidently exercised its discretion in awarding the mother the sum of $20,000 in counsel fees.