New York City

Published on: October 9, 2013

Court Discusses Statutory Duties of Law Guardian

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. 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. A New York Family Lawyer said 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 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: October 8, 2013

Appellant Seeks Modification of Child Support Obligations

by Stephen Bilkis

The instant case arises from an award of child support entered after an inquest, upon the appellant’s default in appearing at the hearing. A New York Family Lawyer said the appellant alleges he became sick immediately prior to the commencement of a support hearing in February 1990 and asked his wife’s attorney to inform the court that he went home ill. Instead, his wife’s attorney only informed the court that he was present, but had left. Thus, the wife was the sole witness at the inquest, and, based upon her testimony, the Hearing Examiner, in an order, awarded child support and maintenance. The appellant sporadically paid only a small fraction of the support ordered by the court.

A New York Custody Lawyer said that the appellant further alleges that from the time of the support proceedings until April 1991 he either lacked counsel or that the counsel which represented him did not provide him with effective assistance of counsel. The appellant then engaged his present counsel who moved by order to show cause to vacate his default pursuant to CPLR 5015. The motion was denied by Hearing Examiner in an order and objections to the Hearing Examiner’s order were denied in the order appealed from.

The appellant sought modification of his support obligations pursuant to Family Court Act § 415. Hearing Examiner Silverman ordered a combined hearing on the issues of downward modification and whether the appellant had willfully violated the support order.

Published on: October 7, 2013

Mother Seeks to Relocate and Modify Divorce Decree

by Stephen Bilkis

A mother filed a motion to modify their divorce decree by deleting the requirement that she must reside with her three children within a radius of fifty miles of New York City. A New York Family Lawyer said the purpose of her application was to relocate the children with her. The father however cross-moved for sole custody of the children or, in the alternative, for an order conditioning the mother’s right to custody on her continued residency with the children within the aforementioned fifty miles radius.

Pursuant to the agreement, the father had the right to visit the children at any time on reasonable notice to the mother, and to have the children spend with him alternate weekends from Friday evening to Sunday evening. A New York Custody Lawyer said the children went to summer camp, the father had the right to have any or all of them spend one-half of the remaining summer vacation time with him.

A Queens Family Lawyer said the mother stated that she wanted to relocate because she would be able to secure for them, similar if not, superior educational advantages without costs as well as outstanding recreational and summer activities at minimal costs. As for herself, she would be able to pursue her career in advertising and sales promotion which she could no longer do in New York City and at the same time spend more time with her children.

Published on: October 6, 2013

Court Discusses Dual Representation Issue

by Stephen Bilkis

Plaintiff A is the court appointed article 81 financial guardian for B. He is also the co-trustee of the B Family Trust. A New York Family Lawyer said these appointments were made only after the original action was brought. A has now interposed a third amended complaint on behalf of his ward. Defendant C as trustee and certain business defendants have brought a pre-answer motion to dismiss the fifth through fourteenth causes of action asserted in the third amended complaint. C has now joined in that motion in her individual capacity. Defendant D has separately moved to dismiss the causes of action asserted as to her. Defendant E separately moved to dismiss the causes of action asserted as to him.

F law firm separately moved to be relieved as counsel of record for certain defendants. This motion has already been denied by the court. A cross moved to: disqualify the F law firm; appoint a receiver; appoint a successor trustee in place of C of the B Family Trust; hold a hearing on whether a guardian ad litem should be appointed for G; strike D’s reply in support of her motion to dismiss and strike C’s reply in support of her motion to dismiss. A New York Custody Lawyer said that subsequently withdrew his application to have a receiver appointed. Although the parties represented to the court that the only relief left in the cross-motion pertained to disqualification of the F law firm, other requested relief has not been formally withdrawn. Thus, still outstanding is A’s request for the appointment of a successor trustee, a guardian ad litem hearing and to strike reply papers on the motions to dismiss.

A Nassau County Family Lawyer said that because all of the motions and cross-motion are substantially interrelated and rely on similar facts and arguments made sometimes in overlapping papers, they are consolidated for consideration and determination in this single decision. At the outset the court rejects arguments that the court should refuse to consider any of the relief requested in A’s cross-motion because it was made at a time when a stay of the proceedings was in effect. Regardless of whether the temporary restraining order contained in the August 27, 2007 Order to Show Cause precluded the cross-motion at the time it was originally interposed, that TRO had long expired by the time the cross-motion was actually submitted to the court. In the interim, and certainly by the time of submission, all parties had been given an opportunity to oppose the relief requested in the cross-motion on the merits. Thus the relief requested by A will be considered on the merits.

Published on: October 5, 2013

Court Discusses Jurisdiction Issue in Custody Battle

by Stephen Bilkis

In this motion for leave to reargue respondent’s motion to dismiss for lack of jurisdiction, and for leave to reargue the decision and order of this Court dated August 8, 1977. A New York Family Lawyer said that, respondent contends that this Court lacks jurisdiction in this proceeding brought by petitioner, a resident of Queens County, for upward modification of divorce decree, Kings County, dated January 31, 1974. A Queens Divorce Lawyer said that, respondent argues that since he is a resident of Putnam County, a county which does not adjoin the City of New York, this Court lacks jurisdiction (and by inference that petitioner could proceed only by a petition brought in Putnam County, or by a proceeding under the Uniform Support of Dependents Law, U.S.D.L.).

A New York Custody Lawyer said that, in October, 1974, an order was made in the Family Court, Kings County, where petitioner then resided (respondent then resided in New York County), on petitioner’s petition for enforcement of said decree. On March 18, 1977, respondent, then a resident of Putnam County, filed a petition in the Family Court, Queens County (where petitioner then resided and now resides) requesting expanded visitation with the child. A Queens Family Lawyer said that, on March 29, petitioner filed a petition in this Court requesting upward modification of support for the child. Both petitions were returnable in Kings County. When the Court was informed that neither party resided in Kings, the file was transferred to Queens County.

A Westchester County Family Lawyer said that, now respondent argues lack of jurisdiction as to petitioner’s petition, in spite of the fact that he desires a hearing in this County on his petition. In addition to the reasons set forth below it is obvious that to require two hearings, in two counties would create a needless multiplicity of suits.

Published on: October 4, 2013

Father Disregards Child Support Order

by Stephen Bilkis

In 1996, a paternity and child support proceedings were initiated against a man regarding a child, born out of wedlock. A New York Family Lawyer said the matter was scheduled but on the day the man failed to appear. After an inquest, the court entered an order declaring the man to be the father of the child and immediately referred the issue of support to a hearing examiner.

In 1997, the hearing examiner issued an order requiring the man to make weekly payments for the benefit of the child and pay the counsel fee within sixty days from the date ordered. A New York Custody Lawyer said the directive was duly served on the man by mail. In 1998, the man failed to make any payments in any way for the benefit of the child.

The county’s department of social services commenced an action against the man in the family court based on his willful failure to comply with the order.

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: October 2, 2013

Court Dismisses Appeal for Further Review of Division of Marital Property

by Stephen Bilkis

In an action for a divorce and ancillary relief, the defendant man appeals from a decision of the Suffolk County Supreme Court made after a nonjury trial, and as limited by his brief, from stated portions of a judgment of the same court which, upon the decision has awarded the complainant woman a 50% share in the appreciation of the marital residence, directed the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, directed the defendant man to pay the sum of $352.27 per week in child support, and fixed the commencement date of the action as the valuation date for equitable distribution of the married parties’ assets.

A New York Family Lawyer said it is ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the complainant woman a 50% share in the appreciation of the marital residence, by deleting the provision thereof directing the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, and by deleting the provision thereof directing the defendant man to pay the sum of $352.27 per week in child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Suffolk County Supreme Court for further proceedings consistent herewith, and for entry of an amended judgment thereafter; and it is further ordered that pending a recalculation of the defendant man’s child support obligation, he shall continue to pay the sum of $352.27 per week for the support of the subject child.

The defendant man acquired the marital residence prior to the parties’ marriage, using the proceeds of a settlement from a personal injury action. A New York Custody Lawyer said the the deed and mortgage were placed and kept solely in his name. Consequently, the marital residence is separate property. The appreciation of, or increase in the value of, separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. A Manhattan Family Lawyer said the complainant failed to carry her burden establishing that the marital residence appreciated in value during the parties’ marriage and, if so, that such appreciation was due in part to her efforts. Thus, it was error for the Supreme Court to award the complainant woman a 50% share in the appreciation of the marital residence. Moreover, it was error for the Supreme Court to direct that this separate property be sold. However, the complainant woman is entitled to a credit for her equitable share of the marital funds that were used to pay off the mortgage, which was the defendant man’s separate debt. Accordingly, the matter is remitted to the Suffolk County Supreme Court for the calculation of that credit.

Published on: September 26, 2013

Court Modifies Child Support Payments in Light of Disability Proceeds

by Stephen Bilkis

The petitioner wife obtained a judgment of divorce against the appellant husband. At that time, appellant earned a net salary of approximately $200 per week as a postal worker. The opinion of the Supreme Court, Suffolk County, in the divorce action recited that petitioner, who was then receiving welfare, could reasonably be expected to earn $25 per week. A New York Family Lawyer said the judgment of divorce directed the appellant to make child support payments of $50 per week for each of the two children of the parties and awarded alimony of $50 per week, for a total of $150 per week.

The Family Court, Suffolk County, on the petition of the Child support Enforcement Bureau of the Suffolk County Department of Social Services (CSEB), (1) granted an order of support consistent with the terms of the judgment of divorce setting support at $150 per week, allocating $50 per week as alimony for petitioner and $50 per week for each of the two children as support and (2) granted a wage deduction order against appellant’s salary from the Post Office.

A New York Custody Lawyer said that appellant suffered a severe back injury which resulted in a continuing inability to work. He received his regular salary until April 1980, at which time he became the recipient of disability payments.

Published on: September 25, 2013

Court Decides Case for Contempt of Court for Failure to Pay Child Support

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 4, 1999, which, in effect, confirmed a determination of the same court, dated September 13, 1999, that he had willfully failed to obey an order of the same court, dated December 9, 1996, and thereupon committed him to a term of incarceration of 120 days, unless he purged himself of his contempt by paying the sum of $10,000 towards arrears of child support.

A Suffolk Child Support Lawyer said that, pursuant to an order of the Family Court, Suffolk County, dated December 9, 1996, the appellant was obligated to pay $576 per month in child support. The appellant allegedly has not made any payment under that order, and the Commissioner of Social Services filed a violation of child support order petition. A hearing was conducted on September 13, 1999, although the appellant was not represented by counsel and was not advised of his right to have counsel present. A Suffolk Family Lawyer said that, the Hearing Examiner found the appellant guilty of a willful violation of the support order, and on November 4, 1999, the Family Court denied his objections, confirmed the Hearing Officer’s findings, and committed the appellant to a term of incarceration. A Suffolk Child Support Lawyer said that, the appellant contends that he was not properly notified of his right to counsel and therefore his consent to go forward at the hearing was not given knowingly, intelligently, and voluntarily.

A New York Custody Lawyer said the issue in this case is whether court erred in citing the father in contempt for not paying the ordered child support.