Custody

Published on: July 23, 2014

Court Decides Issue Related to Paternity Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Custody Lawyer said the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Westchester County Family Lawyer said the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

Published on: July 22, 2014

Mother Challenges Denial of Public Assistance

by Stephen Bilkis

A New York Family Lawyer said the mother applied for public assistance and medical aid from the County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents in Bethpage. Without any factual determination concerning the amount of child support actually furnished by her parents, the County Department of Social Services notified her that her application for eligibility for public assistance was being denied. The agency’s position was that she is under twenty-one, her parents are responsible for her, she is residing with her own parents, and they are of sufficient ability to support her. As far as the unborn child, there are no needs to be met for the unborn child.

A New York Custody Lawyer said following a fair hearing proceeding, the hearing officer rendered a decision affirming the denial of assistance by the County Department of Social Services on the grounds that when a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

A Nassau County Family Lawyer said thereafter, the mother commenced the Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of the respondents of denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

Published on: July 21, 2014

Court Decides if Wife is Entitled to Rental Income

by Stephen Bilkis

A New York Family Lawyer said the couple purchased their marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the wife commenced an action for a divorce and ancillary relief. In a pendente lite (pending in court) order, the Supreme Court awarded the defendant husband interim custody of their children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A New York Custody Lawyer said after a nonjury trial, the Supreme Court awarded physical custody of the children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

However, a Queens Family Lawyer said the Supreme Court erred in calculating the husband’s child support obligation based on an imputed annual income of $50,000 per year. That imputation was based upon findings that the husband’s average annual reported income over the years 2000-2003 was $37,264 and that, in addition, he received $2,000 per month in rental income. Those findings alone demonstrate that the husband’s actual income exceeds $60,000 per year. Moreover, at one point during the trial, the husband testified that he actually received rental income in the amount of $2,200 per month and, in addition, earned a couple thousand dollars per year in unreported income from secondary employment.

Published on: July 20, 2014

Plaintiff Files Motion to Compel Child Support

by Stephen Bilkis

A New York Family Lawyer said that, this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel child support of a dependent minor child under the Uniform Support of Dependents Law (Domestic Relations Law, Article 3-A). There is also pending before the Court a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Custody Lawyer said the parties, formerly husband and wife, lived together during their marriage in Queens County. Dissension arose between them, and the wife (the present petitioner) started a separation action, which was tried in 1959, and resulted in a judgment, dismissing her complaint awarding her the custody of the infant daughter (then less than two years old and now four years old), directing the father to pay the mother for the child support the sum of $40 per week, and allowing him weekly visitation. A Nassau Child Support Lawyer said that, it appears that the parties, after the rendition of this judgment, again lived together; dissensions again arose; about April, 1960 the wife left the husband, taking the child with her; thereafter she went to Florida with the child and both still live there.

A Long Island Family Lawyer said that, in June, 1960 this proceeding was commenced in the appropriate court in Florida and transferred to the Children’s Court of Nassau County, where the father now resides. On November 2, 1960, an order was made, directing payment of $40 per week for the child’s support. This order was appealed from. On January 17, 1961, a further order was made, continuing the provisions of the order of November 2, 1960 and further directing payment of $20 per week for the support of the wife. It does not appear that this order has been appealed from. Up to this point, respondent (admitted to the practice of law, but employed and making his living as a salesman) had defended in person. A Nassau Child Support Lawyer said that, on April 6, 1961, by his present counsel, he moved to vacate the order of January 17, 1961, which motion was granted to the extent that on April 27, 1961 the provision of the order of January 17, 1961, providing for payments for the wife’s support was vacated as of March 27, 1961, when, the court had learned, the wife had obtained a decree of divorce in Florida and shortly after married; in all other respects the motion was denied. From such denial an appeal was taken. On April 27, 1961 likewise an order and an amended order were made, continuing the direction for payment of $40 per week for the child’s support; from all of which orders appeals were taken.

Published on: July 19, 2014

Mother Petitions Court for Custody

by Stephen Bilkis

A New York Family Lawyer said on September 16, 2000, Mother and Father, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of said marriage, the Mother believed that she had been divorced from her prior husband, with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action on January 19, 2000. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce dated December 21, 2000, which incorporated but did not merge with the Agreement. This notwithstanding, the Mother and Father lived as husband and wife with the son of the prior marriage, and on May 15, 2001, they had the child subject to this proceeding.

A New York Custody Lawyer said that, difficulties apparently ensued between the couple in 2004, prompting the Mother a practicing attorney to commence custody, family offense and child support proceedings against the Father in Nassau County Family Court on January 25, 2005. A Nassau Order of Protection Lawyer said that, a Temporary Order of Protection was issued in the Mother’s favor. There was Child Protective Services involvement with the family. On August 26, 2005, the Family Court entered a Temporary Order of Support ordering the Father to pay temporary support and child care expenses in the sum of $486 biweekly to the Mother. The Father was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

A New York Child Custody Lawyer said that, shortly thereafter, on or about September 14, 2005, the Father commenced an Action for Annulment against the Mother in the District Court of Clark County in the State of Nevada, on the grounds that the Mother was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the Mother failed to answer or appear on that action and a default was declared against her on October 10, 2005. The Eighth Judicial District Court of Clark County, State of Nevada then issued a Decree of Annulment on November 15, 2005, declaring the prior marriage to be “null and void and of no effect,” and restoring each of the parties to the status of a “single unmarried person.”

Published on: July 18, 2014

Court Determines if it has Jurisdiction in Child Support Proceeding

by Stephen Bilkis

A New York Family Lawyer said that, this is a proceeding under Section 890, subdivision 1 of the Code of Criminal Procedure against a father who is alleged to have neglected to provide for his wife and child according to his means. The proceeding came on for trial and the Court ordered a payment of $20 weekly. A bond was required and the matter adjourned to give defendant an opportunity to furnish the bond.

A Nassau Child Support Lawyer said that, the defendant has raised a question of jurisdiction. However, the Court entertained serious doubt as to its jurisdiction, and on its own motion, took the question under consideration.

A New York Child Custody Lawyer said the issue in this case is whether the Children’s Court of Nassau County have exclusive jurisdiction of child support proceedings completely pre-empting the District Court of Nassau County in the cases enumerated in Section 30 of the Children’s Court Act.

Published on: July 16, 2014

Father Moves for a Change in Child Custody

by Stephen Bilkis

A New York Family Lawyer said the couple was married and had four children together: a 12 year old; a 10 year old; a 9 year old; and a 7 year old. The father left the marital residence and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, child support, and maintenance held in April 1991, a memorandum decision was issued. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause among other things, for a change of child custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s bizarre and dangerous behavior which was calculated to destroy the children’s relationship with him.

A New York Custody Lawyer said in primary part, the father referred to the mother’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the mother’s bringing her to the hospital. The father further noted the mother’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father’s view, a change in child custody was critical to the children’s well-being and mental health.

A Suffolk County Family Lawyer said the mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children as well as a psychiatrist to conduct forensic examinations and to make a recommendation as to child custody.

Published on: July 15, 2014

Appellant Claims Order to Pay Child Support in Arrears is Incorrect

by Stephen Bilkis

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted those branches of the plaintiff former wife’s motion which were for awards of child support arrears and counsel fees, and from a money judgment of the same court, which is in favor of the plaintiff and against him.

A New York Custody Lawyer said the appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the money judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment.

A Westchester County Family Lawyer said contrary to the Supreme Court’s determination that a plenary action was necessary to enforce the parties’ stipulation of settlement incorporated but not merged into the judgment of divorce, the plaintiff’s post-judgment motion was a proper vehicle to ascertain the defendant’s child support arrears, if any, that have accrued under that judgment of divorce. The Court also disagree with the Supreme Court’s conclusion that an order determining the defendant’s arrears, modified the child support provisions of the parties’ stipulation of settlement incorporated into the judgment of divorce, or set a new recurring amount of child support that the defendant was required to pay going forward.

Published on: July 14, 2014

Court Discusses Complex Paternity Test

by Stephen Bilkis

A New York Family Lawyer said in this paternity proceeding, the Court is faced with a fascinating issue of statutory construction of apparent first impression. At issue is whether results of a blood genetic marker test administered to a putative father prior to his death in a paternity proceeding relating to a prior child of the same parties sufficiently supports petitioner’s standing under Family Court Act § 519(c) to commence a new paternity proceeding involving another child of the same parties. Consistent with principles of statutory construction and in furtherance of the child’s welfare and public policy, this Court answers the question in the affirmative.

In 1991, assignor (“Mother”) gave birth out-of-wedlock to a baby boy in East Meadow, Nassau County, New York. Shortly after the birth, she and the child began receiving public financial assistance from the Nassau County Department of Social Services. Petitioner herein, Commissioner of Social Services, subsequently instituted a paternity proceeding on behalf of Mother against respondent to declare him the child’s father and to obtain indemnification for child support payments. Mother alleged in the petition that she had had sexual intercourse with respondent on several occasions from 1983 to 1991, during the time including the critical period of conception. Petitioner was looking for child support apparently based on the fact that respondent was the owner of a gas station in Massapequa, New York.

A New York Child Custody Lawyer said that on the appearance date, Hearing Examiner (“H.E.”) ordered the parties to submit to blood genetic marker tests to determine whether respondent could be excluded as being the child’s father. Following the administering and analysis of the blood genetic marker tests in the form of Human Leukocyte Antigen (“HLA”) tests or blood grouping tests, respondent could not be excluded as child’s father due to a 99.83% probability of paternity as compared to an untested random man of similar ethnic background. Based on those results and respondent’s voluntarily and intelligently made admission of paternity, an Order of Filiation was enteredby H.E., declaring respondent as child’s father and ordering him to temporarily pay a monthly child support. The temporary order of support was made final in June 1992. Respondent apparently complied with that support order for several years, while continuing having a relationship with Mother.

Published on: July 13, 2014

Wife Seeks Restraining Order Against Former Husband

by Stephen Bilkis

A New York Family Lawyer said this is a special proceeding instituted under Article 78 of the CPLR in which the petitioner seeks an order restraining the Family Court of the State of New York. This application is made on the theory that by virtue of two orders made in the Supreme Court, Nassau County, that the Family Court has no jurisdiction to hear and determine the proceedings brought by the petitioner in those proceedings. The parties were formerly husband and wife. The latter has filed with the Family Court in the County of Nassau, two petitions. In one petition she sets forth that in an action instituted in the First Civil Court, District of Bravos, State of Chihuahua, Republic of Mexico, a decree was duly entered by which husband was directed to provide for her spousal support and the child support of the three children of the marriage.

A Nassau County Family lawyer said that the wife further alleges that in December 1958 by order of one of the Justices of this Court, the husband was ordered to pay the sum of Sixty ($60) Dollars a week for the support of the three children. She alleges that no exclusive jurisdiction was retained either by the Mexican Court or the Supreme Court of Nassau by the decrees referred to. She then alleges that since the entry of the Mexican decree, and since the entry of the order of the Supreme Court of Nassau County, there has been a change in circumstances which would warrant an increase in the amount of money to be paid for the support of the children and she seeks an order modifying both the Mexican decree and the Supreme Court order to that effect. In another petition filed under the same index number in the Family Court of Nassau County, the wife as petitioner again alleges the entry of the decree in Mexico and the decree in Nassau County and that neither of those courts has retained exclusive jurisdiction. She alleges that the husband, respondent in those proceedings, has failed to comply with the order of the Mexican Court and the order of the Supreme Court of Nassau County, and that he has failed to pay the $20. a week for the support of the child, and has failed to pay Temple dues for the children. In this petition she prays that the said respondent be dealt with in accordance with Article 4 of the Family Court Act. The substance of both petitions seek to obtain an order of the Family Court directing payment by the father of the children for the support of the children. The father, as petitioner before this court, proceeds on the theory that by the order in the Supreme Court, Nassau County, and a subsequent order of this court in which certain provisions of the order were modified in connection with custody and visitation of the children and provisions made in connection with the payment of the $60. per week provided in the order, the Supreme Court had retained exclusive jurisdiction of the matter thus depriving the Family Court of jurisdiction. This argument is based upon § 461 of the Family Court Act. By that section it is provided that a separation agreement, and decree of separation, and a final decree or judgment terminating a marriage relationship does not eliminate or diminish either parent’s duty to a child support of the marriage under sections 413 and 414 of Article 4 of the Family Court Act. It states that in the absence of an order of the Supreme Court or of another court of competent jurisdiction requiring child support, the Family Court may entertain a petition and make an order for its support. It further provides that if an order of the Supreme Court or of another court of competent jurisdiction requires support of the child, the Family Court may (1) entertain an application to enforce the order requiring support; or (2) entertain an application to modify such order on the ground that changed circumstances require such modification, ‘unless the order of the supreme court provides that the supreme court retains exclusive jurisdiction to enforce or modify the order.’

A Nassau County Family Lawyer the order of the Supreme Court of Nassau County provided among other things ‘that this Court shall retain jurisdiction of the parties hereto for the purpose of enforcing, modifying or altering this order.’. The order contained a similar clause ‘that this Court shall retain jurisdiction of the parties hereto for the purpose of enforcing, modifying or altering this order. Neither one of the orders provided in words or substance that the Supreme Court retained exclusive jurisdiction to enforce or modify the order. Each of the orders simply stated that jurisdiction of the parties was retained. However, an examination of the law discloses that the Supreme Court of Nassau County had no power to grant that part of the order which directed the future support of the minor children. The proceeding pending before the court on which that order was based was a petition for a writ of habeas corpus in connection with the custody of the children. There was no marital action pending in the Supreme Court of New York State. Under such a situation the only provisions for compelling the future support of minor children were Sections 30 and 30-a of the Children’s Court Act.