Custody

Published on: January 10, 2014

Court Decides if it Erred in Child Support Determination

by Stephen Bilkis

A New York Family Lawyer said that, petitioner objects to the order which terminated the order of child support of December 12, 1988. The objections are sustained and the order terminating the December 12, 1988 order of child support is vacated and the order of child support is continued. The child was born out-of-wedlock on September 17, 1987 and shortly thereafter began to receive support from the petitioner/Commissioner of Social Services. On October 13, 1988, the Commissioner commenced a proceeding to declare the respondent the child’s father and to collect child support from him. A New York Child Custody Lawyer said the third paragraph of the Commissioner’s petition alleges that she had received an assignment from the child’s mother and that the child is or is likely to become a public charge. The petition prayed for child support.

A New York Bronx Lawyer said that, on September 12, 1988 Hearing Examiner entered both an order of filiation and an order of child support, both on the father’s consent. On February 28, 1990, a child protective proceeding pursuant to Article 10 of the Family Court Act was commenced against the child’s mother resulting in the May 29, 1990 order placing the child in foster care. It would appear that the father was neither a respondent nor an intervenor in that proceeding.

A Bronx Child Custody Lawyer said that, on February 28, 1991 the father moved to terminate his order of child support effective May 29, 1990 and for a refund of all child support paid to the Commissioner from that date. The essence of the father’s argument in support of his motion is that since the Commissioner was acting, at least in part, as the assignor of the custodial mother when the original order of support was entered, it should be vacated because the Commissioner now has custody of the child. There is no dispute that the Commissioner has continued to support the child during the entire time in issue.

Published on: January 9, 2014

Court Decides Whether to Modify Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County, entered October 31, 2008, as denied his objections to an order of the same court, dated February 13, 2008, which, after a hearing, inter alia, granted the mother’s petition for a modification of her child support obligation, vacated a prior order of child support nunc pro tunc to September 9, 2005, vacated the mother’s child support arrears, and directed the Support Collection Unit to stop charging or collecting child support against the mother.

The issue in this case is whether the court erred in modifying the child support obligation of the mother.

A New York Child Custody Lawyer said The Child Support Standards Act (hereinafter CSSA) (Family Ct Act § 413; Domestic Relations Law § 240) imposes a “basic child support obligation” upon a parent based upon numerical guidelines, and a rebuttable presumption exists that the amount of child support calculated under the statutory guidelines is correct. However, this presumption may be rebutted, and the support obligation adjusted, if the court finds that the noncustodial parent’s support obligation is “unjust or inappropriate” based upon its consideration of statutory factors set forth in Family Court Act § 413(1)(f). Such factors include, inter alia, the financial resources of each parent (Family Ct Act § 413[1][f][1]), the relative gross income of each parent (Family Ct Act § 413[1][f][7]), and “any other factors the court determines are relevant in each case” (Family Ct Act § 413[1][f][10]; see Domestic Relations Law § 240[1-b][f][1], [7], [10] [setting forth the same factors]). Where, after considering the statutory factors, “the court finds that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate” and shall set forth its reasons therefor in a written order.

Published on: January 7, 2014

Petitioner Reopens Child Support Case

by Stephen Bilkis

A New York Family Lawyer said that, in this proceeding, the Commissioner of Social Services, as assignee of the non-party mother, seeks child support from appellant father for the couple’s two children, claiming that the mother’s active welfare case constitutes a “change in circumstances” mandating revision of the parties’ previously negotiated agreement, pursuant to which the mother and father waived the right to child support from each other. A New York Custody Lawyer said it was not claimed that there had been a change in the financial circumstances of the mother, other than the fact of the opening of a welfare case. Because the father was denied the opportunity to obtain any discovery concerning the mother’s welfare case, it could not be verified that there had, in fact, been a change in circumstances in the mother’s finances so as to warrant a modification of the parties’ support decree.

A Brooklyn Family Lawyer said the mother and father were divorced in Supreme Court, Kings County, in March 2003. Pursuant to a stipulation, incorporated in their judgment for divorce, the parties agreed to a 50/50 sharing of physical custody of their two daughters. The parties represented that they had been advised of the provisions of the Child Support Standards Act, and each agreed that they would deviate from that standard and waive any right pursuant to the guidelines. The stipulation, entered on the record, provided that “the deviation is based on the fact that the parties are sharing expenses and sharing the custodial time with the children,” and that as a result, “neither party shall be paying child support to the other party.”

A Brooklyn Child Custody Lawyer said that, the parties agreed to retain his or her own separate property, and to waive any rights as to the other’s property. The parties exchanged net worth statements and relied on the representations therein with respect to finances. Each party acknowledged that he or she had been made aware of the factors affecting income and property, including the present and future earning capacity of each party, and the ability of each party to be self-supporting. Each party released and discharged the other from any and all claims, including present and future claims for alimony and maintenance, and each specifically acknowledged that he or she was self-supporting. The net worth affidavit submitted by the mother in connection with the proceeding indicated that she was a sculptor, self-employed, with a gross income of $15,000, assets in the amount of $2,000 and liabilities in the amount of approximately $31,000. In October 2002, the mother requested permission to relocate to Lower Manhattan, where she had been accepted into an artists’ community. The mother subsequently and apparently in defiance of the parties’ stipulation moved to Manhattan and commenced a custody proceeding in the Family Court, New York County. On or about August 2, 2004, the mother applied for welfare.

Published on: January 6, 2014

Court Determines Primary Custodial Parent

by Stephen Bilkis

A New York Family Lawyer said this is a cross appeal from an order of the Family Court of Essex County, entered October 28, 2009, which, among other things, granted plaintiff’s motion for an order of child support. A New York Divorce Lawyer said that, plaintiff and defendant were married in 2001 and the parents of twins (born 2007). In July 2008, plaintiff commenced this action for divorce seeking, among other things, an order of custody and an order of child support. Simultaneously with the commencement of this action, plaintiff moved for pendente lite relief, including an order of temporary custody and child support. A New York Child Custody Lawyer said that, defendant cross-moved for temporary custody. In December 2008, Supreme Court Justice issued a temporary order directing that the parties have joint legal custody and setting a schedule of custodial time. Thereafter, Supreme Court Justice referred plaintiff’s application for support to Family Court.

A New York Child Custody Lawyer said that, after a fact-finding hearing, at which the parties stipulated to various facts, including their respective incomes and the amount of custodial time each enjoyed with the children, the Support Magistrate determined that defendant was the noncustodial parent and that his pro rata share of the basic child support obligation for both children was $469 biweekly (including $27 for his pro rata share of the children’s health insurance coverage). However, the Support Magistrate further found that defendant’s pro rata share of the basic child support obligation would be unjust and/or inappropriate and reduced the basic support amount from $442 biweekly to $200 biweekly. These cross appeals ensued.

The threshold issue presented is whether the Support Magistrate properly determined that plaintiff is the custodial parent and that defendant is the noncustodial parent for purposes of determining child support.

Published on: January 5, 2014

Mother Claims Father took Child Out of the Country Without Her Consent

by Stephen Bilkis

A New York Family Lawyers said the parties were married in 1978 in Karachi, Pakistan. Later that year they moved to New York City. In April 1980 the Parties’ child was born in the United States. In March, 1981 the child was taken to Pakistan. A New York Family Lawyer said the defendant claims and a later decision of a court found, that this was done without her knowledge or consent. Defendant in turn took the child from Pakistan, without plaintiff’s knowledge or consent. She brought him to her relatives in Ireland. Thereafter, defendant returned to New York for at most a few weeks. The child remained in Ireland. Both parties started various New York City Family Court proceedings which were eventually abandoned, denied or marked off the calendars. Defendant returned to Ireland.

A New York Custody Lawyer said that three years later, plaintiff served defendant with papers for a divorce. Service was made in Dublin, Ireland. Thereafter, defendant returned to the United States with the child. Defendant did not answer the divorce papers. She claims she thought reconciliation was in the works. The divorce was processed as an uncontested with custody of the child remaining with both parties.

A Long Island Family Lawyer said that during the fall, defendant started proceedings to reopen the divorce based upon lack of jurisdiction and lack of proper service. The parties were in litigation for approximately 1 1/2 years concerning the jurisdiction, economic issues, and visitation. Plaintiff did not see the child during this time.

Published on: January 3, 2014

Mother Tries to Regain Custody of Children in Foster Care

by Stephen Bilkis

A permanent neglect petition was filed by the petitioner adoption service. At that time the child was four years old; for the preceding two and a half years she had been in the custody first of the Bureau of Child Welfare, and thereafter, with the adoption. The child, who is now seven years old, has, since the latter date, been in the care of the same foster parents.

A New York Family Lawyer said that the voluminous record which covers 19 hearings, beginning on June 1969, portrays a picture of an aggressive, paranoid and immature mother who interspersed long periods of neglect by failure to maintain contact with the supervising agency for visitation with sudden, hysterical demands that the child be returned to her. Attempts by caseworkers to contact the respondent were frustrated by her constant changes of address, most of which were not communicated to the agency.

On one occasion, when the Bureau of Child Welfare permitted the child to be taken to the respondent’s home, the infant was admitted to a hospital as a battered child four days later. Thereafter, or in August 1971, the Family Court judge, in response to the respondent’s application for the immediate return of the child, ordered the adoption service to permit 15 visits by the respondent up to October 1971; on that latter date she was to be permitted to take the child home for the weekend. Nevertheless, the respondent made only two regular visits prior to October 1; on that date she insisted on taking the child home a week earlier than scheduled. She was permitted to do so, but refused to return the child on the following Monday. This resulted in the issuance of a warrant and the arrest of the respondent.

Published on: January 2, 2014

Court Listens to Habeas Corpus Proceeding

by Stephen Bilkis

In a family related case, a habeas corpus proceeding with respect to custody of petitioner’s eight-year-old son, the appeal is from an order of the Family Court, Kings County, A prior interim order had been made by the Supreme Court, Kings County, referring the proceeding to the Family Court and granting temporary custody of the child to appellants, with two-hour periods of visitation on Saturdays and Wednesdays to petitioner at appellants’ home. A New York Family Lawyer said the order under review modified said prior order of the Supreme Court so as to grant visitation to both parents of the child, at or away from appellants’ home, for three hours on Saturdays, subject to certain conditions. According to a Kings County visitation attorney, the permission to appeal from the order of the Family Court is hereby granted. Thus, the court Order was reversed, without costs, and petitioner’s application to modify the order of the Supreme Court denied.

In addition, a New York Custody Lawyer said the Court stated that it was an improvident exercise of discretion to modify the visitation provisions ordered by the Supreme Court in view of petitioner’s past conduct, an apparent inability on the part of her husband to control her actions at times, and a failure of proof that circumstances had changed since the date of the Supreme Court’s order so as to adversely affect the welfare of the child. Our determination is, of course, without prejudice to the issues to be determined after trial, which, as of the time of the making of the order under review, was scheduled for September 17, 1971.

A Staten Island Family Lawyer said an another family case, in a proceeding pursuant to Family Court Act article 6 for grandparent visitation, the grandmother appeals from an order of the Family Court, Kings County, dated February 24, 2009, which, after a hearing, dismissed the petition.

Published on: January 1, 2014

Court Decides Case in Light of Domestic Relations Law 76

by Stephen Bilkis

A New York Family Lawyer said this is a visitation proceeding from which a father appeals from an order of the Family Court, Kings County dismissing his petition for visitation on the ground of lack of jurisdiction.

According to his petition and hearing testimony, he and his wife were divorced in November 1999 by a judgment of a New York court. A New York Custody Lawyer said the matrimonial court, inter alia, awarded custody of the parties’ children to the mother. The mother relocated with the children to the State of Pennsylvania, where they have lived since 2000. On or about 12 May 2004, the father filed the instant petition with the Family Court for his rights to visitation.

The court ruled that the Family Court did not have jurisdiction to make an initial child custody determination in relation withDomestic Relations Law § 76, because the children and their mother had lived in Pennsylvania for approximately four years, the Pennsylvania courts would have jurisdiction over the matter, and there was no indication that a court with jurisdiction had declined to exercise it because New York was the more appropriate forum. The court, however, stresses the importance of Domestic Relations Law § 76-a (1), i.e., a New York State court may have “exclusive, continuing jurisdiction” over a prior child custody determination made pursuant to Domestic Relations Law § 76.

Published on: December 31, 2013

Court Rules on Child Molestation Case

by Stephen Bilkis

The Nassau County Department of Social Services filed amended child abuse and neglect petitions against the father on behalf of his children who was four years and two and one-half years old at the time.

A New York Family Lawyer said the petitions alleged that on numerous and diverse occasions occurring prior to about October 27, 1987, the father had put his penis in the four year old child’s private part, inserted his fingers in her private part, and touched the private part of the two year old child. The petitions alleged that all of these acts threatened and endangered both children’s emotional health, safety and well being.

The allegations of abuse, heretofore described, were based on out-of-court statements made by the two children. It is well settled that out-of-court statements of a child relating to allegations of abuse are admissible at a fact-finding hearing and, if they are properly corroborated by evidence tending to support their reliability, may support a finding of abuse. A New York Custody Lawyer said in the instant proceeding, the Family Court held that the validation testimony of a social worker constituted sufficient corroboration of the afore-noted allegations of abuse.

Published on: December 30, 2013

Wife Defends Custody Issue Based on Husband’s Bizarre Behavior

by Stephen Bilkis

A couple was married and had four children together. The husband left the marital residence and a divorce action was commenced the following month. A New York Family Lawyer said following a trial on the issues of equitable distribution, child support and maintenance, a memorandum decision was issued. Although the husband had stipulated to the wife having child custody, he moved for a change of child custody to him, with the wife to be given only supervised visitation based upon what he claimed to be the wife’s bizarre and dangerous behavior which was calculated to destroy the children’s relationship with him.

The husband referred to the wife’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 wife herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the wife’s bringing her to the hospital. A New York Custody Lawyer said the husband further noted the wife’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 husband’s view, a change in child custody was critical to the children’s well-being and mental health.

The wife opposed the application, and the matter was subsequently referred for a hearing. Since the original Law Guardian had died after having issued his report in the matrimonial matter recommending that the husband 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.