Articles Posted in Nassau County

A man filed a verified petition seeking an order of the court vacating an order of filiation entered upon his admission. He had appeared before Hearing Examiner and admitted that he was the biological father of a boy who was born out of wedlock on January 25, 1988. A New York Family Lawyer said in support of his present application, the man asserts that he has obtained a DNA test to exclude him as the father.

After answering papers were filed by the child’s assigned Law Guardian and the County Attorney on behalf of the mother and the Suffolk County Department of Social Services (DSS), the issue of the admissibility and weight to be given to this privately arranged DNA paternity test was placed squarely before the court.

The DNA test which is the driving force behind this litigation was performed under unusual circumstances. In early January of 1999 the man telephoned a nationally syndicated television talk show called. He offered to provide a DNA sample and appear as a guest to argue that he was not the boy’s father. A representative of the show then telephoned the mother. A New York Custody Lawyer said she was equally convinced that DNA results would show that the man was the father; she agreed to provide samples of her own and the boy’s DNA. The mother’s decision was a necessary foundation for the upcoming show and eventually for this litigation.

In a child support proceeding, the father appeals from an order of the Family Court which denied his objections to two orders of the same court which awarded the petitioner with child support based on a determination of his gross income and counsel fee.

A New York Family Lawyer said the order is modified on the law and as a matter of discretion, by deleting the provision thereof denying the appellant’s objection to the order directing him to pay a counsel fee in the sum of $20,000, and substituting a provision sustaining the objection to the extent of directing him to pay a counsel fee and deleting the provision thereof denying his objection to the order awarding the mother child support and substituting a provision sustaining the objection to the extent of granting his application for a mortgage payment credit against his investment income on his investment property; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court for further proceedings consistent herewith, including a new determination of child support.

Although the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless to be controlled by the equities of the case and the financial circumstances of the parties. Given the financial circumstances of the parties, as well as all the other circumstances of this case, the Family Court improvidently exercised its discretion in awarding the mother the sum of $20,000 in counsel fees.

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In a matrimonial action in which the parties were divorced by a judgment, the defendant former husband appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, as, after a hearing, and upon a prior order of the same court, entered, which interpreted a child support escalation provision in a stipulation of settlement incorporated but not merged in the judgment of divorce, awarded the plaintiff a money judgment in the amount of $24,512, representing arrears in child support due and owing the plaintiff for the years 1984 through 1989, (2) from an order of the same court, which granted the plaintiff former wife’s motion for counsel fees in the amount of $9,450, and (3) purportedly from so much of the order of the same court, as denied his motion for counsel fees.

A Queens Family Lawyer said that the order of the Supreme Court, Suffolk County, denied the defendant’s motion for counsel fees. Since the defendant withdrew his notice of appeal from that order, his purported appeal from so much of that order as denied his motion for counsel fees must be dismissed.

In that very same order, the Supreme Court, in delineating the issues to be determined at a hearing to be held on the defendant’s motions, interpreted the child support escalation provision in a stipulation of settlement which was incorporated but not merged in the judgment of divorce in a manner adverse to that advanced by the defendant. However, that provision of the order, was not appealable as of right, since the hearing had not been held. Child support arrears allegedly due to the plaintiff based on the child support escalation provision were not determined until an order was entered, after a hearing, granting the plaintiff a money judgment for them. Since the defendant timely appealed from the order, his argument on appeal, to wit, that the Supreme Court erroneously interpreted the child support escalation provision, is properly before this court.

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.

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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.

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Defendant wife is now 52 years of age while plaintiff-husband is 56 years of age. A New York Family Lawyer sometime in August 1973, the parties got married. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was 18 years of age and a high school graduate. During the course of their marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation, the youngest son resided in Israel or was a resident student at a certain university, fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Custody Lawyer said that sometime in November 2004, the wife commenced a divorce action against her husband which she later withdrew. Thus, sometime in December 2004, the husband commenced a divorce action against his wife. The parties litigated in Family Court from 10 November 2004, through 31 January 2005. The husband also brought a writ of habeas corpus against his wife and her mother which was dismissed. The Family Court action was then consolidated into the Supreme Court action, on consent. On 10 June 2005, the husband was granted a divorce, on consent and after proof, on the grounds of constructive abandonment. Shortly thereafter, the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

A Nassau County Family Lawyer said that on 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The parties agreed, inter alia, of a shared joint decision making concerning their youngest daughter, age 13; that the wife would have physical custody; that there would be a parent coordinator; that the husband, the wife and child would separately enroll in therapy; and of a supervised visitation and a mechanism for the child and father to re-establish their relationship. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and the same was vacated, on consent.

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This matter has had a convoluted history and presents a legislative “glitch.” A New York Family Lawyer said that during a contested divorce proceeding, the Family Court issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before the Judge. A New York Custody Lawyer said that, pursuant to the temporary order of protection, the Sheriff’s Department seized 26 guns belonging to the petitioner. Thereafter, on May 2, 2001, the Judge issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, the Judge withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.

Subsequently, Nassau County Family Lawyer said that, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by the Judge.

A Nassau Family Lawyer said that, on December 2, 2002, in compliance with this court’s order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection that the Judge had issued. Although the petition was unopposed, it was dismissed by the said Judge due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed. As a result, the matter was brought before this court by notice of motion for renewal of this court’s previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before the Judge, it was necessary for the court to conduct a hearing. A Nassau County Custody Lawyer said for the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.

In this assault case, the complainant and the defendant dated periodically for a period of time encompassing the past 13 years. A New York Family Lawyer said the instant charge stems when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx.

A Nassau County Family Lawyer said that the People detail the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time. Included are litanies of alleged violent acts directed at her by the defendant. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. A Nassau County Criminal Attorney said that the charges contained in the criminal complaint did not report the alleged crime to the police. Later, after other alleged incidents, the complainant reported this charge to the police along with four additional charges. Thereafter, the defendant was arrested for the above-listed crimes.

A Nassau County Custody Lawyer said the People are prepared to proceed to trial, and in so doing, argue that expert testimony would aid the jury in the understanding of the complainant’s delay in reporting the incident. Further, the People specifically emphasized that their expert would be called to give an opinion in support of their contention that the complainant suffers from battered woman syndrome. The People claim that the expert’s testimony will explain why the defendant abused in front of another and that the expert’s testimony is necessary to explain why the complainant waited nearly three months to report this incident.