Suffolk County

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 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.

Published on: July 11, 2014

Appellant Files for Child Support Order

by Stephen Bilkis

A New York Family Lawyer child support proceedings pursuant to Family Court Act article 4, appellant appeals from (1) an order of the Family Court, Nassau County, which, inter alia, directed him to pay child support arrears in the amount of $5,000 and continued a prior order, obligating him to pay child support in the amount of $800 per month, (2) an order of the same court, which committed him to the Nassau County Correctional Facility for a period of six months for his wilful violation of the order, and denied him the opportunity to purge his sentence, (3) an order of the same court, which denied his motion to stay all proceedings before the Support Magistrate pending a ruling on his motion to disqualify the Support Magistrate, (4) an order of the same court, which denied his motion, among other things, for leave to reargue his motion, inter alia, to expunge his record of incarceration and to impose a sanction on the attorney for the petitioner, which was denied in a prior order of the same court, (5) stated portions of an order of the same court, which denied those branches of his motion, among other things, which were, in effect, to transfer the matter from the Family Court, Nassau County, to the Supreme Court, Nassau County, and for the recusal of the Judge, and (6) an order of the same court which denied his motion to hold nonparty in contempt of court for failure to comply with a subpoena.

A New York Child Custody Lawyer said that the appellant contends that the Family Court erred in adjudicating him in contempt of court and in directing that he be incarcerated for a period of six months. The appellant’s contentions are without merit. This issue is not rendered academic by reason of the appellant’s subsequent payment of all child support arrears, which resulted in his release. To the extent that a case may be construed as holding otherwise, it should not be followed. Specifically, the appellant never challenged the amount of arrears owed or the validity of the underlying child support order. The appellant’s failure to pay child support pursuant to a lawful order constituted prima facie evidence of a wilful violation.

The appeal from so much of the order, as determined that there would be no opportunity for the appellant to purge himself of the contempt must be dismissed as academic in light of the appellant’s concession that he was, in fact, released from jail approximately one week after his incarceration, upon full payment of the child support arrears.

Published on: June 21, 2014

Father Requests Downward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 17, 1993, which, after a nonjury trial, inter alia, (1) directed him to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years, (2) directed him to pay child support in the amount of $3,097 per month, and (3) awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries, and the plaintiff wife cross-appeals from so much of the same judgment as awarded her a money judgment in the amount of only $69,043.

A New York Custody Lawyer said that, in another child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated August 10, 2009, which denied his objections to an order of the same court dated June 9, 2009, which, after a hearing, denied his petition for a downward modification of his child support obligation.

A Suffolk County Family Lawyer said the issues in this case are whether the court erred in decreeing the defendant husband to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years; directed him to pay child support in the amount of $3,097 per month; and awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries; and whether defendant husband is entitled to modification of his child support obligation.

Published on: May 26, 2014

Court Decides Jurisdiction Issue in Neglect Case

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal from an order of the Children’s Court Nassau County, dated December 8, 1955, directing appellant to support the two children of the parties, aged eight and ten years respectively, now living with respondent, formerly the wife of appellant. On May 4, 1955, the parties, then husband and wife, living apart, entered into a separation agreement. One of the provisions thereof required that the father pay $150 monthly for the support of the two children, nothing for the support of the wife. Thereafter, and on May 9, 1955, a judgment of absolute divorce was entered in the Circuit Court, Tenth Judicial District, State of Alabama, wherein the wife in this proceeding was the complainant, the husband the respondent. A Nassau Divorce Lawyer said, the separation agreement dated May 4, 1955, was made a part of the Alabama judgment. Petitioner, thereafter, returned to Nassau County, New York, where she again took up residence with the two children and on November 11, 1955 brought on this proceeding by information.

A New York Family Lawyer said that, after a trial of the issues by the Children’s Court judge, an order was entered in the Children’s Court requiring the appellant to pay $300 per month for the support of the two children. Appellant bases his appeal on two points. First, that the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge. Such has not been shown in this case. Second, that $3,600 per year out of an annual income of $9,000 gross per year (appellant’s income) is excessive and unreasonable.

The issue in this case is whether the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge.

Published on: May 18, 2014

Child Guardian Files for Compulsory Accounting

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding wherein A and B, as parent and legal guardian of C, filed a petition for a compulsory accounting and related relief pursuant to Surrogate Court Procedure Act §2205 on 9 July 2012, against E, co-executor and co-trustee, of the estate of F. E filed a response to petition for compulsory accounting seeking dismissal of the petition to compel an accounting for lack of standing of petitioners.

A New York Child Custody Lawyer said in rendering this decision the court has considered the petition to compel an accounting filed on 9 July 2012, the response to petition for compulsory accounting by E acknowledged on 6 August 2012, Petitioner’s Memorandum of Law dated 10 September 2012, Memorandum by G, Esq. on behalf of E, dated 13 September 2012, petitioners’ responding memorandum dated 1 October 2012 and the accounting proceeding responding memorandum by G filed 1 October 2012.

A Suffolk County Family Lawyer said that F, the testator, died on 2 March 2000. He was survived by his wife, H; the respondent herein, E; and two sons, I and J. At the time of the death of F, K had two infant children and L had four infant children. Two of the then minor children of J, A and C, are petitioners herein. A is no longer a minor.

Published on: May 6, 2014

Wife Appeals Judgment Regarding Spousal Support

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered April 10, 1989, the defendant former wife appeals from (1) stated portions of an order of the Supreme Court, Nassau County, entered May 7, 1996, which, after a hearing, inter alia, reduced the plaintiff former husband’s total child support and maintenance obligation to $300 per week, and (2) so much of a judgment of the same court, entered May 23, 1996, as failed to award her interest on the support arrears.

A New York Custody Lawyer said that, on May 10, 1985, the parties entered into a stipulation of settlement in New York concerning their marital dispute. The stipulation provided for, among other things, maintenance for the respondent and child support for the children, in weekly sums, and for cost-of-living increases. By judgment of the Supreme Court, Nassau County, dated September 5, 1985, the respondent was granted an uncontested separation. The judgment of separation provided that the stipulation would survive and not be merged in the judgment. The judgment directed the petitioner to make specific maintenance and child support payments. Further, by order dated March 5, 1993, the judgment of separation was amended nunc pro tunc to incorporate by reference all of the terms of the stipulation.

A Westchester County Family Lawyer said that, by judgment entered October 25, 1988, the petitioner was granted a bilateral uncontested divorce by the Superior Court of New Jersey, Middlesex County. The judgment of divorce makes no provision for maintenance or child support, nor does it refer to the parties’ stipulation in New York which dealt with these economic issues.

Published on: May 5, 2014

Wife Goes After Back Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by a judgment dated April 12, 1985, the defendant former husband appeals from a judgment of the Supreme Court, Nassau County, dated April 16, 1991, which, after a hearing, inter alia, found him in contempt of court and granted the plaintiff former wife a judgment for child support arrears in the amount of $17,040.

A New York Child Custody Lawyer said that, the parties were divorced in April 1985 in Nassau County and, pursuant to the terms of the divorce judgment, the former wife was granted sole custody of the parties’ two children, and the former husband was required to pay child support of $60 a week. In 1990, the former wife brought a motion to hold the former husband in contempt based on his failure to pay child support for approximately five years. At a hearing on the contempt motion, the former husband did not dispute that the arrears amounted to $17,040. He argued, however, that the court should consider his application, allegedly pending since 1985, for the elimination of his child support obligation. A Nassau Order of Protection Lawyer said that, in his 1985 motion, the former husband sought, inter alia, transfer of custody of the children and the elimination of his child support obligation based on his allegation that the former wife’s relocation to Dutchess County interfered with his visitation rights. Following a hearing on the motion in 1987, the court determined that the former wife’s relocation did not interfere with his visitation rights and that a transfer of custody was not in the best interest of the children. Because the court did not specifically address the issue of child support in its 1987 decision and order, the former husband now contends that his application to eliminate child support remained pending at the time of the contempt hearing.

A Suffolk County Family Lawyer said the issue in this case is whether the court erred in citing defendant in contempt of court and granted the plaintiff former wife a judgment for child support arrears in the amount of $17,040.

Published on: April 30, 2014

Court Rules on Mother’s Motion for Attorney Fees

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding, a father appeals from an order of the court, which denied his objection and granted the mother’s motion for an award of an attorney’s fee.

Subsequently, the court ordered to reverse the previous decision, on the law, without costs or disbursements, so much of the order, as granted the mother’s motion for an award of an attorney’s fee. The matter is also remitted to the family court, for a new determination of the mother’s motion.

A New York Child Custody Lawyer said sources revealed that in a previous related case, the court stated that even if the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless controlled by the equities of the case and the financial circumstances of the parties.

Published on: April 17, 2014

The issue in this case is whether the Supreme Court erred in holding that the Department must accept prisoners within 10 days after they are State-ready.

by Stephen Bilkis

A New York Family Lawyer said that, this CPLR article 78 proceeding was originally commenced by 43 of New York’s 58 County Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners.

A New York Child Custody Lawyer said the respondents include representatives of the Department of Correctional Services, which is charged with the responsibility of accepting and keeping all persons sentenced to a term of imprisonment in a State correctional facility, the Commission of Correction, which oversees all correctional institutions in the State and promulgates rules and regulations establishing minimum standards for the care of persons confined therein, and the State Division of Parole, which is responsible for the supervision of persons paroled from State correctional facilities.

A Suffolk County Family Lawyer said the genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility. After sentencing, there is some delay while certain paperwork is processed before the prisoner is “State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.