New York City

Published on: February 12, 2014

Guardian Seeks to Terminate Parental Rights

by Stephen Bilkis

The law guardian, on behalf of the subject child, moves to vacate a judgment, terminating the natural mother’s parental rights. The sole basis for the law guardian’s motion is that the subject child, now fourteen years of age, does not wish to be adopted by his maternal aunt with whom he has lived since the age of seven, in light of his affection for his mother. Initially, the law guardian cited no statutory basis for her motion.

A New York Family Lawyer said that the petitioner argues further that none of the statutory bases established by CPLR 5015 applies in this case. Petitioner contends that the only conceivable statutory ground for setting aside the judgment would be the existence of newly discovered evidence, which had it been introduced at trial, would probably have produced a different result. Petitioner further contends that the child’s change of mind regarding adoption is not evidence which would probably have produced a different result had it been introduced at the dispositional hearing on the petition to terminate the mother’s parental rights. The law guardian contends that the child’s change of mind is evidence of the sort which requires a new dispositional hearing, if not a dismissal of the termination petition.

Procedurally, a New York Child Custody Lawyer said the court concludes that Petitioner’s contention that the proceeding is governed by CPLR 5015, is correct. Although the law guardian contends that this court has inherent authority, under the doctrine of parens patriae, to set aside the previous judgment in the best interest of the subject child, the court’s powers are strictly defined and delimited by statute. Nothing in the Family Court Act or the Social Services Law authorizes the court to vacate a judgment committing custody and guardianship to a petitioning agency, once the judgment is entered. Unlike article 10 of the Family Court Act, which contains specific statutory authority to set aside, modify or to vacate any order issued in the course of a proceeding under that article, no such authority is conferred by any provision of Family Court Act article 6, which governs proceedings to terminate parental rights for permanent neglect of the subject child.

Published on: February 12, 2014

Father Appeals Child Support Order for Lack of Jurisdiction

by Stephen Bilkis

A New York Family Lawyer said this is a child support proceeding pursuant to Family Court Act article 4 where the father appeals from the order of the Family Court of Kings County dated 7 October 2009 granting the mother’s objection to an order of the same court dated 12 December 2008 dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction to the extent of vacating the order dated 12 December 2008 and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction; and, the mother cross-appeals from the order dated 7 October 2009 granting her objection to the order dated 12 December 2008 only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

The order dated 7 October 2009 was affirmed insofar as appealed from, without costs or disbursements; and, the order dated 7 October 2009 was reversed insofar as cross-appealed from, on the law, without costs or disbursements, the mother’s objection was granted in its entirety, the order dated 12 December 2008 was vacated, and the matter was remitted to the Family Court of Kings County for further proceedings on the merits of the mother’s petition for an upward modification of child support.

A New York Child Custody Lawyer said the specific events that took place are as follows:

Published on: February 11, 2014

Father Claims Lack of Jurisdiction in Child Support Hearing

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals, by permission, as limited by his brief, from so much of an order of the Family Court, Kings County, as granted the mother’s objection to an order of the same court, dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction, to the extent of vacating the order, and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction, and the mother cross-appeals, by permission, as limited by her brief, from so much of the order, as granted her objection to the order, only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

A New York Custody Lawyer said that the mother, who at the time resided in Ithaca, filed a petition in the Family Court, Tompkins County, for child support with respect to the parties’ child. At the time, the father resided out of state. Pursuant to an order, the Family Court, Tompkins County, directed the father to pay the mother certain child support. Thereafter, the mother, who stated that she was residing in Brooklyn, filed a petition in the Family Court, Kings County, for an upward modification of child support against the father, who continued to live outside of New York State.

The father argued, inter alia, that the Family Court lacked subject matter jurisdiction to modify the child support, because New York had not remained the “residence” of the mother and/or the parties’ child for purposes of Family Court Act § 580-205(a). In an order, the Support Magistrate dismissed the mother’s petition on that ground. The mother filed an objection to the Support Magistrate’s order, arguing that the record developed before the Support Magistrate established that the Family Court had subject matter jurisdiction and that her petition for an upward modification should be heard and determined on the merits.

Published on: February 11, 2014

Court Decides Custody in Light of Fathers Drug Use

by Stephen Bilkis

A New York Family Lawyer said that from 28 June 2006 to 3 July 2006, respondent father was admitted to W Hospital where he was diagnosed with psychotic disorder not otherwise specified, poly-substance dependence, substance induced psychotic disorder, borderline and anti-social personality traits. Following hospitalization, respondent father failed to take his prescribed medication (risperdal and klonopin), or obtain psychiatric treatment.

On 15 April 2007, respondent father committed acts of domestic violence against respondent mother in the presence of the child. Consequently, he was arrested and charged with assault in the third degree, attempted assault in the third degree, menacing in the third degree and harassment in the second degree. On 20 July 2007 and 4 October 2007, respondent father violated the order of protection issued by the Criminal Court in that he was observed in the presence of respondent mother. He was thereafter charged with two counts of criminal contempt in the second degree.

A New York Custody Lawyer said that the respondent father had a history of marijuana use as proven by his testing positive for that substance on 19 May 1998, 12 June 1998 and 29 May 2006.

Published on: January 16, 2014

Court Discusses Doctrine of Comity

by Stephen Bilkis

A New York Family Lawyer said the Mother and the Respondent Father are both Egyptian nationals and were married in Egypt and have one daughter born in January, 1987. The parties were divorced on July 11, 1987, in a court of competent jurisdiction. Pursuant to the divorce decree, the Father agreed to pay pounds sterling> E. 350 monthly in addition to school, treatment and child custody expenses for the daughter. The Father paid this amount for the month of June, 1987, only. Thereafter, he fled to the United States, without giving notice to the Mother and has not paid his Egyptian child support obligation since. The Mother obtained a judgment for child support in the appropriate Egyptian Court, for a sum of pounds sterling E. 100 to be paid monthly, from November 8, 1987, to the present. Both the Mother and Father appealed this decision and the Egyptian Appellate Court sustained the initial judgment of pounds sterling E. 100 monthly for child support. The Court issued the judgment upon the Father’s salary in Egypt and stated that the amount of support could not be increased until his affluence and change in financial status was proven with American financial statements. The Mother has no way of obtaining the necessary proof in Egypt because the Father is not in Egypt and refuses to give her the appropriate documentation. The Father appealed the judgment of pounds sterling E. 100 monthly, and the court held that the amount was appropriate to the Father’s financial status in Egypt and that the father owes a non-delegable duty of child support to his daughter under Egyptian civil and religious law. The Father was held in contempt for his failure to pay child support in 1995 when he returned to Egypt. The Father would be held in contempt again, should he return to Egypt, for his willful failure to support his child. His child support obligation, based on the current value of the Egyptian pounds sterling E., equals around $29.41 monthly. Thus, his total arrears resulting from the Egyptian judgment is $13,763.88 to date.

A New York Child Custody Lawyer said the Mother entered the United States on a student visa and filed a petition for child support in Albany County Family Court. The Mother resided in Towson, Maryland, until the middle of May, 1996, when the visa expired and she returned to Egypt with her daughter. The Mother currently resides in Alexandria, Egypt. The Mother appeared in person on May 2, 1996, for a hearing in Albany County Family Court. The Father resides in Albany, New York and appeared personally at the same hearing. Thus, the Court has personal jurisdiction over both parties.

A Suffolk County Family Lawyer said the Mother filed a set of objections with service of process to the Order of the Hearing Examiner. The Mother objected to the dismissal of her complaint and stated that the failure to provide a Family Court Act (FCA) affidavit when the Hearing Examiner was on notice that the Mother had returned to Egypt was an unreasonable request and abuse of discretion. The Father filed a Rebuttal with service of process and claimed that since the Mother had re-alleged each and every objection submitted to the Court, the Mother has opened the door to rebut those objections and, therefore, the previous request deemed untimely is now resubmitted and should be deemed timely. The Father states that the dismissal of the Mother’s petition was proper and consistent with FCA. The Court will consider the Father’s argument that the court had the power and authority to construe the Mother’s petition as one for enforcement and modification. Furthermore, the Father correctly states that, with a foreign support order in hand, the Mother may come to a New York court and bring an action for enforcement or modification of the foreign support order.

Published on: January 14, 2014

Petitioner Seeks to Modify Custody based on Allegations of Neglect

by Stephen Bilkis

A New York Family Lawyer said that it is not disputed that a boy was born to a woman. Four days later, the mother and Mr. B. signed an acknowledgment of paternity regarding the boy. The mother and Mr. B. were never married. On June 12, 2008, before the child was one year old, Mr. B. filed a custody petition, alleging that he is the father of the child, that the mother is unfit, mentally unstable, on and off anti-depressants, unstable, violent, neglectful of her other child, and even practices demonic witchcraft.

On September 24, 2008, the support litigation was started when the Department of Human Services — CSEU as assignee of the mother filed a petition for child support against the boy, alleging that Mr. B. was the father of the child based on the Acknowledgment of Paternity previously signed by both the mother and Mr. B. In the support paperwork, the mother indicated there were two possible fathers. This was apparently initially overlooked.

A New York Custody Lawyer said on October 30, 2008, and with both parties represented by counsel, the parties consented to an order of joint custody, primary residence of the child with the mother and periods of visitation with Mr. B.

Published on: January 11, 2014

Father Appeals Increase in Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding for an upward modification of an award of child support, the father appeals from an order of the Family Court, Suffolk County, entered December 12, 1990, which denied his objections to an order of the same court, entered September 5, 1990, which, after a hearing, increased his weekly child support obligation from the sum of $25 to the sum of $150 per week for his daughter Shannon retroactive to August 18, 1989, and directed him to pay an additional $25 per week to satisfy arrears. The parties were married in December 1972 and their union produced two children, a daughter, born June 9, 1973, and a son, born August 3, 1977. In September 1979 the parties entered into a separation agreement that provided, inter alia, that the mother would receive custody of the children, and that the father would pay weekly child support of $25 per child.

A New York Child Custody Lawyer said that, in November 1979 a judgment of divorce was entered incorporating the provisions of the separation agreement which survived and did not merge in the judgment. In 1979 at the time of the divorce, the children were six and two years old, respectively. The father’s gross earnings were approximately $16,800 per year. The mother was unemployed. Alleging a change in circumstances and that the needs of both of the children were not met by the father’s contribution to their support, the mother sought an upward modification of the child support set 10 years earlier. Subsequent to the filing of the mother’s petition, the parties’ son moved to his father’s residence.

A New York City Family Lawyer said that, in support of her petition which then sought increased child support for the parties’ daughter, the mother testified to increased expenses due to the daughter’s growing and different needs, the increased cost of living, as well as substantial improvements in the financial circumstances of the father, who was then earning in excess of $70,000 per year. Based upon the testimony and the evidence, the Hearing Examiner determined that a change in circumstances had occurred warranting both an increase in the father’s support obligation for their daughter, and an obligation on the part of the mother (now a noncustodial parent to the parties’ son) to contribute to his support. Having found the requisite change in circumstances, the Hearing Examiner appropriately applied the Child Support Guidelines formula to both parties’ support obligations. Although the mother was unemployed at the time of the proceeding, the hearing examiner imputed income to her in the sum of $16,000, based upon her prior employment experience. The net effect of the application of the formula to the income of both parties resulted in an increased obligation on the part of the father for his daughter’s support requiring him to pay $150 per week.

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 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.