Custody

Published on: October 1, 2013

Petitioner Sues Respondent for Child Support

by Stephen Bilkis

In 1962, the accused left his wife and four minor children in California. His wife then entered into ‘a common law situation’ with a partner and adopted the name of her partner. A New York Family Lawyer said that thereafter, she applied in California for public assistance for the children claiming that she did not receive any support from the accused. In 1971 she signed a misdemeanor complaint charging him with nonsupport. It was later determined that appellant was residing in New York and later, a reciprocal support petition was forwarded to the Family Court in New York. Thereafter, the court ordered that appellant to pay $16 a week for child support.

A New York Child Custody Lawyer said that the mother signed a felony complaint in California charging that appellant did ‘willfully, unlawfully and feloniously and without lawful excuse, omit to furnish’ support for his min children in violation of section 270 of the Penal Code of California. The complaint was sworn to before a Judge of the Municipal Court who then issued a warrant for appellant’s arrest. He was arrested at his home in New York and held pending extradition proceedings.

Thereafter, an investigator from the District Attorney’s office in Orange County, California, sent an application for requisition to the Governor of California. The application states that appellant is properly charged, in due form, in accordance with the laws of this State with the crime of violation of section 270 of the California Penal Code, a felony, committed in the county of Orange’ and ‘That said fugitive from while out of the State of California, committed acts intentionally resulting in said crime in said county. In an affidavit attached to the application, the mother recited the history of the case as indicated above and also stated that she had not received any support from the accused since the entry of the New York Family Court order. In another affidavit to the same effect Woodington noted that ‘this office has received no funds from the defendant’. Both of these affidavits were sworn to before a Judge of the Municipal Court of Orange County.

Published on: September 30, 2013

Court Discusses Eviction of Family Member

by Stephen Bilkis

In this Special Proceedings case, petitioners are the owners of the Subject Property. Respondent moved into the Subject Property with her paramour after learning she was pregnant with the subject child. Petitioner’s husband is the biological father. The parties acknowledged that there are no custody or child support matters pending.

A New York Family Lawyer said that for almost 7 months, Respondent and the paramour resided together at the Subject Property. Petitioner, who resides in the property adjoining the Subject Property, was aware that respondent had moved into the property with her son. Thereafter, while the paramour was incarcerated, respondent continued to reside in the Subject Property without the co-petitioner. The child was born in February 2008 and has lived in the Subject Property with respondent since birth. Apparently, the paramour and respondent at some point had become engaged, but never married, and according to respondent, the engagement ended in April 2009. Co-petitioner, paramour has since returned to prison and, according to petitioner, it is anticipated that her son will be released in or about January 2010.

It is undisputed that respondent has continued to reside in the Subject Property uninterrupted for a period of more than two (2) years. A New York Custody Lawyer said there was no testimony that petitioner ever resided in the Subject Property. Co-petitioner is listed as the sole borrower on the mortgage for the Subject Property, and according to the credible documentary evidence, the Subject Property is the subject of a foreclosure proceeding pending in Suffolk County Supreme Court. Thereafter, Co-petitioner deeded one-half interest in the Subject Property to petitioner to assist with the mortgage arrears.

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 27, 2013

Court Hears Child Support and Custody Case

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: 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.

Published on: September 24, 2013

Father Appeals Child Support Calculations

by Stephen Bilkis

A New York Family Lawyer said that, in the parties’ separation agreement, which was incorporated but not merged into the judgment of divorce, the father agreed that his child support obligation for a given year would be 25% of his gross income for the prior year. On a prior appeal in this case, this Court found that it was error for the Hearing Examiner to rely on the father’s gross income from 1996 to calculate his child support obligation for 1998, and to fix that obligation from 1998 onward.

A Suffolk Child Support Lawyer said that, after that appeal, the Child Support Enforcement Bureau of the Suffolk County Department of Social Services (hereinafter the Bureau), which oversaw the father’s account with the Suffolk County Support Collection Unit, moved in the Family Court to have the court calculate the father’s child support obligation from 1998 onward. The Family Court referred the matter to the Hearing Examiner, who, by order dated November 14, 2001 (hereinafter the Hearing Examiner’s order), calculated the father’s child support obligation “effective” December 1, 2001. Contrary to the father’s contention, the court properly entertained the Bureau’s application.

The issue in this case is whether the father’s child support obligation should be re-calculated.

Published on: September 23, 2013

Court Decides on Case Involving Laches

by Stephen Bilkis

This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.

A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.

The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.

Published on: September 22, 2013

Court Discusses Cost of Living Adjustment

by Stephen Bilkis

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 9, 2009, which denied his objections to an order of the same court, dated September 24, 2009, which, upon treating his letter dated June 29, 2009, as objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, found that his objections were untimely, and denied his objections with prejudice.

A New York Family Lawyer said that, in the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the Suffolk County Support Collections Unit (hereinafter the SCU) issued a cost-of-living adjustment (hereinafter COLA) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009.

A New York Child Custody Lawyer said that, after a hearing to determine the timeliness of the father’s objections, the Support Magistrate, in an order dated September 24, 2009, denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 21, 2013

Petitioner Objects to Cost of Living Adjustment

by Stephen Bilkis

This case stemmed from a divorce action between parties dated May 5, 2005. After the trial, the Family Court ordered a judgment of divorce. A New York Custody Lawyer said the judgment also set forth the support obligations of the father. The father made objections to the order of the court but the same were denied. In his letter dated June 29, 2009, he also made objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, the court found that his objections were untimely, and denied his objections with prejudice. Later on, the father filed an appeal assailing the order of the Family Court, particularly its child support provision.

In the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the support collections unit (SCU for brevity) issued a cost-of-living adjustment (COLA for brevity) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009. Later on, the father admitted that he had previously received the notice of the COLA instructions at his residence, one month prior to the date of the COLA order.

A New York Custody Lawyer said the Support Magistrate denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.