Custody

Published on: August 19, 2013

Court Discusses a Conversion Divorce Proceeding

by Stephen Bilkis

In a divorce action, the plaintiff wife appeals from a judgment of the Supreme Court, Suffolk County, which granted the defendant husband’s counterclaim for a conversion divorce and awarded custody of the parties’ infant children, visitation, child support and occupancy of the marital residence pursuant to the terms of a separation agreement.

Judgment reversed, on the law and as a matter of discretion, without costs or disbursements, and matter remitted to the Supreme Court, Suffolk County, for determination of plaintiff wife’s causes of action for divorce and ancillary issues, and entry of judgment in favor of defendant on his counterclaim for a conversion divorce is stayed pending that determination.

A New York Family Lawyer said that the parties were married in 1969 in Kansas, and thereafter moved to Suffolk County, New York. They have three sons, born in 1969, 1971, and 1975, respectively. In 1982, the parties executed and filed a written separation agreement. The agreement was drawn by use of a “do it yourself” kit, and neither party was represented by counsel. The agreement provided, inter alia, for custody, child support, visitation, a mutual waiver of support, maintenance and alimony, ownership and possession of the marital residence, distribution of personal property, and a mutual waiver of inheritance rights. The agreement further provided that it would be incorporated by reference in any subsequent divorce decree and would survive, not merge in, any such decree.

Published on: August 18, 2013

Court Decides Modification of Child Support Issue

by Stephen Bilkis

In a child support modification proceedings under the Family Court Act, a wife seeks an order of the Court modifying upwards the child support provisions of a December 1973 divorce decree entered between the parties, which provisions were adopted and made part of an enforcement order entered in Court on October 18, 1976.

A New York Family Lawyer said the parties were married in New York in 1958, with eight children being born of the union. By divorce decree, the husband was directed to pay $20.00 per week for each of the eight children, for a total of $160.00 per week. The wife now seeks an increase of the $20.00 per child, per week figure, alleging the increased needs of the children, and the husband’s improved ability to pay.

A New York Custody Lawyer said the t issue is the time from which the required change in circumstances is to be measured. The Court record of the prior proceedings between the parties indicates that orders were made relative to the husband’s support obligation on March 13, 1984, November 16, 1983, May 3, 1982, April 17, 1981, February 4, 1980, November 21, 1978, and October 18, 1976 (the original enforcement order).

Published on: August 17, 2013

Petitioner Accused of Misrepresenting Income

by Stephen Bilkis

A proceeding was commenced pursuant to Criminal Procedure Laws and Rule (CPLR) to review a determination of the respondent Government Agency dated May 15, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency that the petitioner mother had willfully withheld information as to a change in income. A New York Family Lawyer said the determination is annulled, on the law, and the petition granted, without costs or disbursements.

The sole evidence in the record of willful withholding of information is the fact that the petitioner mother received a child support check and failed to report it to the respondent Government Agency. She had made no effort to conceal her child support rights. She executed an assignment of these rights to the Agency and appeared in court to press these rights prior to receipt of the check. Her un-contradicted testimony at the fair hearing was that she thought the check she received was the money remaining after the respondent Agency had taken what it was owed. This does not rise to the level of substantial evidence that she had willfully withheld information as to a change of income.

Moreover, a New York Custody Lawyer said the respondent Government Agency failed to notify the mother adequately of her duty to report changes in income. There was only a general certification signed by the mother at the time of her application for assistance. It did not contain any examples of what constituted changes in income nor is there any evidence that the mother was given verbal examples. Since she had not hidden her eligibility for child support and received the support check subsequent to her assignment of support rights, she had no reason to consider this a change in income.

Published on: August 3, 2013

Father Appeals Child Support and Custody Order

by Stephen Bilkis

In an action, inter alia, for awards of child custody and child support, the plaintiff father appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated October 25, 2007, as, in effect, granted that branch of the defendant mother’s cross motion which was for child support pendente lite to the extent of directing him to pay the defendant mother the sum of $426 per week.

A New York Famiy Lawyer said that, the parties, who were never married to each other, are the parents of two young children. In May 2006 the father filed a petition in the Family Court, Suffolk County seeking custody of the children. The mother cross-petitioned for custody, and additionally petitioned for child support. During the course of the Family Court proceedings, the parties entered into a so-ordered stipulation in which they agreed to temporarily share equal physical custody of the children. After the parties reached their temporary custody agreement, a Family Court Support Magistrate denied the mother’s petition for child support.

A New York Custody Lawyer said that, the Support Magistrate found that the parties had joint residential custody, and deemed the father the noncustodial parent because he had a greater income. However, the Support Magistrate declined to direct the father to pay child support because he was paying his adult daughter the sum of approximately $300 per week to care for the children in his home, and the children thus spent a greater amount of time at his residence.

Published on: August 2, 2013

Father Appeals Child Support Order

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 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 New York Family 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.

The issue in this case is whether court erred in citing the father in contempt for not paying the ordered child support.

Published on: August 1, 2013

Court Decides Out of State Custody Dispute

by Stephen Bilkis

A New York Family Lawyer said on 5 October 1982, the parties were separated in a matrimonial action by a judgment of separation of the Supreme Court of Queens County. Thereafter, an amended judgment was rendered by the Supreme Court of Queens County, under a different judge, dated 17 November 1987, which, upon a de novo hearing on the issue of custody directed by order of the United States District Court for the Eastern District of New York, dated 18 December 1986, inter alia, directed that the defendant mother return her daughter to the State of New York where the child shall reside with the plaintiff father and awarded custody of the child to the plaintiff father with liberal visitation by the defendant mother in Denver, Colorado, or in New York, with leave to the defendant mother to move for modification of the amended judgment so as to give her custody of the child, with liberal visitation to the plaintiff father, upon submission of appropriate proof that the defendant mother has returned to the State of New York.

A New York Custody Lawyer said the defendant mother appeals from the amended judgment. The appellate court ordered that the amended judgment is reversed, on the law and on the facts, with costs, and custody of the child is awarded to the defendant mother with liberal visitation to the plaintiff father during the Christmas and Easter school recesses and one-half the summer vacation period, with the cost of the child’s airfare between New York and Colorado to be shared equally by the parties.

The events that took place are as follows:

Published on: July 31, 2013

Court Decides Subject Matter Jurisdiction Issue in Custody Hearing

by Stephen Bilkis

There are two cases before the court for determination.

A New York Family Lawyer said that on or about 30 November 2009, the Family Court of New York County, upon a denial of the respondent mother’s application to dismiss the neglect petition pursuant to Family Court Act § 1051(c) and a fact-finding determination that the respondent mother neglected the subject child, ordered the release of the said subject child, among other things, to the custody of the non-respondent father. On or about 9 November 2009, the same Family Court of New York County, to the extent appealed from as limited by the briefs, awarded custody of the of the subject child to the non-respondent father. The Appellate Court unanimously affirmed the said orders, without costs.

A New York Custody Lawyer said that on or about 2 February 2010, the same Family Court of New York County, to the extent appealed from as limited by the briefs, set forth a visitation schedule for the mother. The Appellate Court unanimously dismissed the said order, without costs, as taken from a non-appealable order.

Published on: July 30, 2013

Petitioner Seeks Modification for Out of State Summer Visit

by Stephen Bilkis

A New York Family Lawyer said this case involves a petition to enforce visitation filed by A, the father of his two children, a petition and order to show cause brought on by B, the mother in the Supreme Court, New York County to modify visitation and a petition and order to show cause to enforce summer visitation without the State of New York brought on by A, the father. Aside from these three proceedings brought before the court involving a ruling on the same issues, various other criminal and civil actions both in the States of New York and Texas are now pending between various members of the respective families.

A New York Child Custody Lawyer said the two children who are subject of this litigation remain well-adjusted but a bit disdainful over their family feud and they are growing impatient for the resolution of this pointless battle.

A Queens Family Lawyer said the parties herein were domiciled in New York until they moved to the State of Texas where A established lucrative business connections involving dental clinics. A and B were divorced there by decree entered on 2 September 1981. Custody was awarded to B with liberal detailed visitation to A.

Published on: July 29, 2013

Petitioner Seeks Revision of Visitation Schedule

by Stephen Bilkis

A New York Family Lawyer said that on 2 August 1999, this proceeding was commenced by the filing of an order to show cause. The petitioner is seeking a modification of a custodial visitation schedule established as a result of a stipulation of settlement subsequently incorporated but not merged into a judgment of divorce dated 13 September 1995 in the Rockland County Supreme Court. The respondent has filed an affirmation in opposition and an attorney’s affirmation in which the issue of this court’s jurisdiction to hear the matter is raised. The respondent claims that the home State for the child is New Jersey and, therefore, this court is without jurisdiction to proceed.

A New York Custody Lawyer said the Law Guardian for the child has submitted a reply affirmation in which she takes the position that this court does have jurisdiction. On 23 August 1999, the petitioner submitted an affidavit in response to the respondent’s answer together with a memorandum of law. On 26 August 1999, the respondent filed a reply affirmation.

The facts in this proceeding are not in significant dispute. The parties have joint custody of A who is now almost 10 years of age. A resides with B in Lincoln Park, New Jersey, during the week, as well as the first weekend of every month during the school year. She splits summer vacation and alternates other vacations and holidays with her parents. In addition, the child has a Wednesday visitation with her mother from 6:00 P.M. to 8:00 P.M. The parties have joint legal custody.

Published on: July 28, 2013

Court Looks at Cell Phone Ban in Public Schools

by Stephen Bilkis

A New York Family Lawyer said that, this proceeding was commenced pursuant to article 78 of the Civil Practice Law and Rules by notice of petition dated July 13, 2006 to “strike down” those portions of the Citywide Standards of Discipline and Intervention Measures (the Standards) promulgated by the Chancellor of the New York City School District which forbid students from bringing cellular telephones (cell phones) into public schools in the New York City School District (the Cell Phone Rules) without authorization.

A New York Order of Protection Lawyer said that, the petitioners are eight parents who have children presently enrolled in public schools in the city and the Chancellor’s Parent Advisory Council. Respondents are the New York City Board of Education, doing business as New York City Department of Education, Chancellor of the New York City School District, and the Mayor of the City New York. The challenged Cell Phone Rules are a single item in the 26-page Standards adopted by the respondents to carry out its obligation to adopt a code of behavior under Education Law § 2801. The Cell Phone Rules, denoted as prohibition level 1, A04 for kindergarten through grade 5, and B05 for grades 6 through 12 under the list of infractions (collectively, the Cell Phone Rules), proscribe “bringing prohibited equipment or material to school without authorization (e.g., cell phone, beeper, or other electronic communication/entertainment devices).”

A New York Custody Lawyer said that, the Standards are structured to set forth five escalating levels of disruptive behavior. The lowest level, level 1, is insubordinate behavior, level 2 is disorderly disruptive behavior, level 3 is seriously disruptive or dangerous behavior, level 4 is dangerous or violent behavior, level 5 is severely dangerous or violent behavior. Standards level 1 lists 10 proscribed behaviors for kindergarten through grade 5 and 12 for grades 6 through 12, which include the Cell Phone Rules. For each level of infraction the code provides for level appropriate “possible disciplinary responses.” The Standards also include a five-page “Bill of Student Rights and Responsibilities, K-12.”