New York City

Published on: November 3, 2013

Court Looks at Jurisdictional Issue in Child Custody Proceeding

by Stephen Bilkis

A husband initially commenced a divorce proceeding in his place but the court declined to hear it since his children are United States citizens. The husband thereafter initiated the action again and an extensive decision of the court was issued on child custody and visitation.

A New York Family Lawyer said the parties have five children and at present, the four youngest children reside with the mother at a shelter, while the eldest child resides with the father at their marital residence. The parties are each in good health. An interpreter was also provided for the wife throughout the proceeding since she does not speak English. Even if the husband testified in English during the custody and visitation trial, he requested the use of an interpreter for the financial proceeding. The husband’s former attorney was relieved as counsel shortly after the decision of the matter was rendered. The attorney was then substituted.

During the party’s marriage, the husband worked in a construction industry which enabled him to financially support his family. Subsequently, the parties and their children traveled back to their hometown. The husband returned to the United States after two weeks, however, the wife and children were left at the husband’s parent’s house. Later, the wife and the youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family. The four eldest children remained with the husband’s parents. Thereafter, the marriage fractured.

Published on: November 1, 2013

Court Decides Whether a Writ of Habeas Corpus Confers to Subject Matter Jurisdiction

by Stephen Bilkis

The parties were married in California thereafter they resided together in Orange County, New York. A New York Family Lawyer said the respondent wife moved out of the marital residence. She was approximately seven months pregnant at the time. She filed a family offense petition in Orange County Family Court and was granted an ex parte Temporary Order of Protection against her petitioner husband. Through her attorney, she notified the Family Court that she was withdrawing the family offense petition which had not as yet been served upon her husband, and that she was leaving for the holidays with her family. That same day, she left New York and returned to her parents’ home in Alexandria Minnesota. She wrote to her husband she would be back with her parents. She did not return home to the marital residence after the holidays as she had previously indicated. The husband thereupon commenced an action for divorce by filing a Summons with Notice.

The infant child was born in Alexandria, Minnesota. A New York Child Custody Lawyer said the instant Writ of Habeas Corpus was issued by the court and was made returnable. The writ was adjourned on consent to February 17th, on which date both the counsel and the complainant husband appeared and oral argument was held. The court waived the appearance of the infant who was only several days old when the writ was issued, and had developed some health issues. In the meanwhile, the respondent wife filed a petition in District Court of Douglas County, Minnesota for legal and physical child custody, child support, and to schedule parenting time for the husband.

The issue of whether a petition for a writ of Habeas Corpus confers to the subject matter jurisdiction upon the Court to adjudicate the parties’ child custody dispute when the child is outside the State of New York when the petition was filed. A Bronx Family Lawyer said it is also an issue whether New York or Minnesota is the home state assuming the court does have subject matter jurisdiction.

Published on: October 31, 2013

Petitioner Seeks Support for Niece from Niece’s Father

by Stephen Bilkis

A New York Family Lawyer said the complainant woman seeks support for her niece against her niece’s father. The support petition was originally dismissed by a hearing examiner. But, by order of a judge, the order of dismissal was vacated. Consequently, the matter remanded back to the hearing examiner to enter a temporary order in accordance with the law and for further proceedings. The judge stayed the proceedings until such time the court will enter an order providing for temporary or permanent custody or guardianship of the child.

A New York Custody Lawyer said that following the custody hearing, a referee, in a very carefully considered decision, reluctantly recommends the child’s custody to her aunt. The matter was then referred to a judge, who confirmed the referee’s findings of fact and issued a final order of custody to the child’s aunt. The matter was then administratively assigned to the court to decide the issue of child support.

The parties appeared, at which time it unsuccessfully attempted to settle the case. A Brooklyn Family Lawyer said the court also pointed out that the law might prevent the re-trial of certain facts material to the issue. A hearing was eventually held. Based upon the evidence presented, the court declines to issue an order of child support against the man.

Published on: October 30, 2013

Court Discusses Domestic Relations Law

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding pursuant to article 3-A of the Domestic Relations Law (the Uniform Support of Dependents Law), petitioner appeals from an order of the Family Court Queens County, dated November 1, 1976, which denied her motion for a “rehearing and reconsideration” of an order of the same court, dated April 12, 1976, which, on her application for increased child support, directed the respondent father to pay $50 per week for the support of the parties’ two infant children.

A New York Child Custody Lawyer said that, the parties to this appeal were married on August 14, 1965. There are two infant children of the marriage; they were born on February 25, 1966 and December 15, 1967, respectively. On November 17, 1971 the parties executed a separation agreement in which the respondent agreed to pay child support of $20 per week, per child, and alimony of $30 per week. A judgment of divorce was entered on May 5, 1972 in the Supreme Court, Queens County predicated on the separation agreement.

A Long Island Family Lawyer said that, on September 17, 1975 the appellant wife petitioned the Family Court, Dutchess County, for support. The proceeding was transferred to the Family Court, Queens County. By order dated November 14, 1975 that court directed respondent to pay child support in the amount of $40 per week. On February 19, 1976 the wife petitioned the Family Court, Dutchess County, for an upward modification of child support. That application was also transferred to the Family Court, Queens County, which conducted a hearing on April 12, 1976 and granted an increase of $5 per week, per child, as requested by the wife’s assigned counsel, the Corporation Counsel of the City of New York. The wife was not present at this hearing.

Published on: October 29, 2013

Court Discusses Whether Plaintiff is Entitled to Damages for Death of Son

by Stephen Bilkis

A New York Family Lawyer said that, in an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated March 8, 1996, as granted the motion of the defendants for summary judgment dismissing the complaint insofar as asserted against them, and, upon renewal, adhered to so much of a prior determination of the same court, dated August 14, 1995, as denied that branch of their motion which was to inspect certain records of the Family Court, Queens County.

A New York Child Custody Lawyer said that, the defendant killed the plaintiffs’ son with a hammer and a knife and, as a result, was convicted in criminal court of manslaughter in the second degree and criminal possession of a weapon in the fourth degree. Pursuant to CPL 330.25, the matter was removed to the Family Court, Queens County, for disposition, and the court adjudicated him a juvenile delinquent. The file of defendant’s criminal proceedings was sealed. Thereafter, the plaintiffs commenced an action to recover damages for wrongful death against defendant and for negligent entrustment of a dangerous weapon against the defendants’ parents.

Á Queens Family Lawyer said that, the plaintiffs moved for an order allowing them, inter alia, to inspect the Family Court file, after an in camera screening of the file by the Supreme Court to determine if information therein was relevant and material to the wrongful death action. The Supreme Court denied the motion. Thereafter, the Supreme Court granted the motion of the respondents to dismiss the complaint insofar as asserted against them on the ground that the plaintiffs failed to raise an issue of fact that the respondents had negligently entrusted their son with the weapons used to kill the plaintiffs’ decedent. The court, upon granting the plaintiffs’ motion for renewal, also adhered to its prior determination denying access to the records of the Family Court.

Published on: October 28, 2013

Court Discusses Doctrine of Equitable Estoppel

by Stephen Bilkis

A New York Family Lawyer said the court has before it the petitioner’s objections to the order of Support Magistrate, dated March 7, 2007, dismissing the petition filed herein. A New York Child Support Lawyer said that, pursuant to the Uniform Interstate Family Support Act (Family Court Act Article 5-B), the petitioner (a resident of Canada), commenced this proceeding by filing a petition seeking the establishment of an order of paternity and child support. The petition alleged that the parties were engaged in a same-sex relationship between August 1989 and January 1995. During their relationship, the parties made plans to conceive and raise a child together. In December 1993, the petitioner became impregnated via artificial insemination. On September 20, 1994, the petitioner gave birth to a child.

A New York Child Custody Lawyer said that shortly after the birth of the child the parties’ relationship ended and petitioner, along with the child moved to Montreal, Canada. Petitioner claims that despite her requests, the respondent has not provided any support for the child. Petitioner seeks a declaration of parentage and an order of child support retroactive to the date of the birth of the child.

A New York Order of Protection Lawyer said that, on March 6, 2007, the parties appeared before Support Magistrate. Petitioner appeared via telephone, respondent personally and with counsel. Prior to conducting a hearing, upon oral application by counsel for respondent, the Support Magistrate dismissed the petition, finding that under the facts of the case and the laws of the State of New York, the court could not grant an order of filiation. The question of the appropriate amount of child support was never reached.

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 25, 2013

Respondent Objects to Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, objections filed by Respondent, the non-custodial parent, to an order of the Support Magistrate in favor of Petitioner modifying a child support order of $25 per week for birth expenses by an additional $62 per week for current child support of the parties’ one-year-old son. Specifically, respondent contends that the Support Magistrate’s findings are inaccurate and fail to reflect his current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively.

A New York Custody Lawyer said that, the Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income of each parent less certain statutory deductions, the net amounts of which are then added together to arrive at the parties’ “combined parental income”. A party’s income generally consists of his/her gross income “as should have been or should be reported in the most recent federal tax return”, and may be calculated based upon the party’s most recent pay stubs. A court is not bound by the income reported in an individual’s income tax return, and has considerable discretion to use other resources available to a parent in determining a child support award including “money, goods or services provided by friends and relatives”. The CSSA requires downward adjustments of each party’s income for certain items of expense and income, such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support actually paid pursuant to a court order on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action”.

A Suffolk County Family Lawyer said that, following these adjustments, the parties’ respective incomes are added together to arrive at the “combined parental income” upon which is calculated the “basic child support obligation”, consisting not only of child support but also child care expenses incurred by the custodial parent, apportionment of “future reasonable health care expenses of the child not covered by insurance”, and under appropriate circumstances educational expenses “in the best interests of the child as justice requires”. The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties, the result of which is then “prorated in the same proportion as each parent’s income is to the combined parental income” to arrive at the non-custodial parent’s child support obligation. Each parent’s pro rata share of the combined parental income is also used to apportion “each parent’s share of future reasonable health care expenses of the children not covered by insurance”, as well as child care expenses. “Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment”, each parent’s pro rata share of those expenses must be “separately stated and added to the” child support amount. If the custodial parent “is seeking work and incurs child care expenses as a result thereof”, “the non-custodial parent’s share shall be separately stated and paid in a manner determined by the court”.

Published on: October 22, 2013

Court Discusses Plaintiff’s Rights to Discovery

by Stephen Bilkis

Bligen v Markland Estates, Inc

Court Discusses Plaintiff’s Rights to Discovery

The plaintiff is the mother of an infant child who allegedly suffered from lead poison during the period that they lived at a premises located in Jamaica, Queens. The defendants were the owner and managers of the property. After the accident, the Department of Health issued a violation to the defendants as a result of the lead poisoning suffered by the child. The defendants then conducted its own testing for lead which indicated that all areas where below the relevant threshold for lead poisoning. A New York Family Lawyer said the mother of the child thereafter initiated a claim against the defendants for the injuries her child sustained. The defendants submitted all the documents regarding the test results to the plaintiff during the course of discovery.

Published on: October 21, 2013

Petitioner Seeks to Modify Custody

by Stephen Bilkis

In May 2007, petitioner filed a petition for a writ of habeas corpus claiming that when he was unable — due to financial circumstances — to pick up his daughter at Respondent’s home after a visit with her pursuant to the 2005 Order, Respondent refused to return the Subject Child to New York. The Court refused to issue a writ and dismissed the petition noting that the 2005 Order requires Petitioner to pick up his daughter from Respondent’s home and that Respondent was not mandated to travel to New York to return the Subject Child to Petitioner. A New York Family Lawyer said the petitioner did not allege that he went to Respondent’s home to obtain the Subject Child.

A New York Family lawyer said that all parties and counsel were present at a court proceeding regarding Respondent’s filed petitions. At that time Respondent expressed her concern that Petitioner planned to relocate the Subject Child to Maine which would prevent her from having child visitation with the Subject Child as set by the 2005 Order. Accordingly, the Court issued an interim order directing that the Subject Child’s residence remain in New York State to allow for the child visitation between Respondent and the Subject Child as provided in the 2005 Order to continue to be effectuated.

Thereafter, a New York Custody Lawyer said the Petitioner dams filed two petitions before this Court seeking (1) modification of the 2005 Order to allow him to relocate with the Subject Child to Maine, and (2) alleging that Respondent violated the 2005 Order with respect to child visitation.