New York City

Published on: November 18, 2013

Court Discusses Scope of the Child Support Standards Act

by Stephen Bilkis

A New York Family Lawyer said that this is an appeal from a judgment of the Supreme Court, entered January 8, 2003 in Tompkins County, which, inter alia, modified plaintiff’s child support obligations. The parties were married in December 1988 and are the parents of a son born in 1991. They separated in January 2001, agreeing to a shared custodial arrangement whereby the child alternates between his parents’ homes on a weekly basis, which has apparently been successful. A New York Divorce Lawyer said that, in March 2001, defendant, the mother, commenced a proceeding in Family Court seeking child support and maintenance. It is undisputed that, during the marriage, the parties’ primary source of income was a trust fund created solely from plaintiff’s proceeds from a medical malpractice action arising from surgery in 1978 in which his spinal cord was negligently severed causing quadriplegia.

A New York Visitation Lawyer said that, although the parties’ income tax return reflects that their combined income in 2000 was $55,493, a Support Magistrate, in an October 2001 decision and order, calculated defendant’s 2000 income as $15,600, plaintiff’s 2000 income as $127,172.48, i.e., 100% of the principal and interest which plaintiff drew from the trust in 2000, and found a total combined parental income of $142,772, with 89% attributable to plaintiff. After considering the statutory factors contained in Family Ct Act § 413 (1) (f) (see Domestic Relations Law § 240 [1-b] [f]) and articulating justification for a lower child support obligation, the Support Magistrate capped plaintiff’s income at $80,000 and ordered him to pay $1,133.33 in monthly child support and $2,000 in monthly non-durational maintenance, provide the child with medical insurance and pay 89% of the child’s uninsured medical and day care expenses.

A New York Custody Lawyer said that, plaintiff filed written objections to that determination and Family Court, by order dated November 20, 2001, modified the Support Magistrate’s order only to the extent of limiting maintenance to five years. The Family Court order was not appealed by either party. In September 2001, before the completion of the foregoing Family Court proceedings, plaintiff commenced this action for divorce in Supreme Court. In lieu of a trial in Supreme Court, the parties apparently agreed to permit the court to determine all disputed issues in the matrimonial action, including modification of child support and maintenance, based on a document dated October 4, 2002 entitled “Joint Proposed Findings of Fact” (hereinafter the stipulation), which included facts upon which the parties agreed and disagreed. Appended to the stipulation were, among other things, Family Court’s decision and order, the Support Magistrate’s findings of fact, decision and order, a transcript of the hearing before the Support Magistrate, updated statements of net worth and a number of other documents related to the parties’ finances, including information regarding plaintiff’s diminishing trust.

Published on: November 16, 2013

Court Redetermines Child Support Order

by Stephen Bilkis

The parties, married in 1978 and subsequently divorced, have been before in Court on three prior occasions stemming from petitioner’s January 1995 application for an upward modification of respondent’s weekly child support obligation for the parties’ two children, born in 1980 and 1983. A New York Family Lawyer said the decision rendered, the Court reversed Family Court’s order which set respondent’s weekly child support obligation and remitted the matter for further record articulation of the factors supporting Family Court’s determination to deviate from the application of the statutory percentage to the parties’ combined income. Upon remittal, the Hearing Examiner made some additional findings but adhered to the weekly child support order. Family Court, by order, denied petitioner’s objections and confirmed the Hearing Examiner’s order.

A Delaware County Family attorney said that petitioner commenced an action seeking an upward modification of the order based upon respondent’s increased earnings and a decrease in her household income. A New York Custody Lawyer said the petitioner also sought a nunc pro tunc modification of the order, pursuant to Family Court Act § 451, claiming that respondent had concealed earned overtime income at the time of the original support hearing. She also sought a direction that respondent pay his future child support through the Child support Collection Unit and an award of counsel fees. Family Court modified its order in an order entered. The court increased respondent’s weekly child support obligation retroactive to April 7, 1997, granted petitioner’s request for the payment of future child support through the Child support Collection Unit and denied her applications for a nunc pro tunc order and for counsel fees.

Petitioner appeals.

Published on: November 14, 2013

Court Decides Case Dealing with Child Support in Arrears

by Stephen Bilkis

In a child support proceeding, the father appeals from an order of the Family Court, Westchester County, which denied his objections to so much of an order of the same court, as, after a hearing, granted those branches of the mother’s cross petition which were, in effect, for arrears of child support and additional child support based on the father’s past employment bonuses, and for reimbursement of certain college expenses, and to modify the parties’ stipulation of settlement, which was incorporated but not merged into the judgment of divorce, to require the father to pay 50% of future college expenses, and for an award of an attorney’s fee, fixed his arrears for child support and additional child support based on the father’s past employment bonuses, and for reimbursement of certain college expenses in the sum of $11,154.81, awarded the mother an attorney’s fee in the sum of $2,250, and directed him to pay 50% of future college expenses.

A New York Family Lawyer said that the mother and father were divorced in August 1995, which incorporated, but did not merge, a separation agreement. Pursuant to the separation agreement, the father was required to pay the mother child support which was, at the time of the filing of the instant petition and cross petition, in the sum of $1,298 per month. He also was required to pay 50% of the children’s health insurance premiums and unreimbursed medical expenses and, as “additional child support,” 50% of any bonuses received from his employment.

In January 2007 a New York Custody Lawyer said the father filed a petition for a temporary downward modification of his child support obligation during a period of unemployment. The mother filed a cross petition, inter alia, in effect, for arrears of child support and additional child support based on the father’s past employment bonuses, and for reimbursement of certain college expenses, and to modify the parties’ stipulation of settlement, which was incorporated but not merged into the judgment of divorce, to require the father to pay 50% of future college expenses, and for an award of an attorney’s fee. Following a hearing, in an order, the Support Magistrate granted the father’s petition, temporarily reducing the father’s child support obligation to the sum of $439 per month, from January through April 2007, during a period of unemployment. The Support Magistrate also granted those branches of the mother’s cross petition which were, in effect, for child support arrears and additional child support based on the father’s past employment bonuses, and for reimbursement of certain college expenses, fixed the father’s obligation in the sum of $11,154.81, awarded the mother an attorney’s fee in the sum of $2,250, and directed the father to pay 50% of future college expenses for the subject children. The Family Court denied the father’s objections to so much of the Support Magistrate’s order as granted the mother relief on her cross petition.

Published on: November 11, 2013

Court Determines the Best Interests for the Child in Custody Dispute

by Stephen Bilkis

The father, who is thirty-two (32) years of age, and the mother, who is thirty (30) years of age, were married in New York in May 2002. While married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. A New York Family Lawyer said the parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties’ child. In December 2002, the mother gave birth to a son. At the time of the son’s birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother’s relative’s residence in Brooklyn. A great amount of the parties’ marriage can be characterized as tumultuous and there were incidents of domestic violence.

On default this court awarded plaintiff-father full custody of the parties’ child whom is five (5) years of age. In August 2005, during a contested divorce proceeding, defendant-mother removed the parties’ child to California. The father commenced a divorce action on October 31, 2003, alleging cruel and inhuman treatment. Initially, the mother appeared pro se but later retained counsel. The mother was allegedly served with the summons with notice in an action for divorce on November 3, 2003, at Kings County Family Court.

A New York Child Custody Lawyer said that, in support of her request that she be awarded full legal custody of the child, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

Published on: November 10, 2013

Court Discusses Visitation Rights for Grandparents

by Stephen Bilkis

Petitioner is the paternal grandfather of 2 infants. Respondent is the natural mother of the infants. The children’s father was killed in an accident.

A New York Family Lawyer said the paternal grandfather has petitioned this court for an order directing child visitation with the infants. An amended petition was filed thereafter. The natural mother has opposed the petition, having previously terminated visitation between the paternal grandfather and the children in June 1999.

A New York Custody Lawyer said that, respondent’s attorney filed a motion for dismissal, relying upon the a ruling of the Court where the United States Supreme Court held that a State of Washington statute governing nonparental child visitation infringed on the fundamental right of a parent to make a decision about the care, custody and control of the parent’s child. The Court deemed this a violation of the parental substantive due process guarantee contained in the Fourteenth Amendment. In opposition, petitioner’s attorney has argued that said case should be limited to its facts, and the statute involved in that case was overly broad and is distinguishable from the New York statute.

Published on: November 8, 2013

Court Discusses Mistake of Law vs Mistake of Fact in Custody Proceeding

by Stephen Bilkis

This proceeding concerns the petition of an Adoption Service for commitment of a minor to its custody under Section 384 of the Social Services Law. Petitioner commenced this proceeding sometime in December 1972. A New York Family Lawyer said the natural mother of the infant was served and defaults in this proceeding. The natural father was also named as a respondent at the direction of the court and was served with citation. In compliance with a Court’s ruling, a hearing was and several months were required for the submission of briefs. Under jurisprudence, an unwed father’s right to custody of his child cannot be terminated without the hearing requirements of due process of law. That case, in fact, involved an unwed father who had raised his children in his own home.

A New York Family lawyer said that the natural father, who lived out-of-wedlock with the natural mother for four months prior to the birth of this boy, has moved to dismiss the petition of the Adoption Service, on the ground that the petitioner failed to prove or plead that respondent father abandoned his infant son. The child was born out-of-wedlock and ten days after his birth, the natural mother voluntarily placed the child with the Commissioner of Social Services of the City of New York for temporary foster care. The father’s name does not appear on the birth certificate. The infant has remained in foster care with the same foster parents from November 1967 to this date. The infant believes that his foster family is his only family and has no knowledge or recall of his natural parents. At the time of the birth of this infant, respondent father was married to a woman other than the mother of this infant. Thereafter, respondent acknowledged paternity and agreed in writing that he would support his child. However, respondent’s salary has been insufficient to cover any support for many years and, in any event, he has made no such payments. The natural mother never contributed towards support. A New York Custody Lawyer said the court finds this long-term failure of support as evidence of abandonment as defined by Social Services Law § 371: “Abandoned child’ means a child who is abandoned or deserted in any place by both parents and left (c) without being visited or having payments made toward his support, for a period of at least six months, by his parent, guardian or other lawful custodian without good reason.’

A Staten Island Family Lawyer said a child never lived in the home of the natural parents, although the father claims that he objected to the natural mother’s refusal to bring the baby home. Curiously, respondent could not recall whether or not the natural mother actually resided with him after the birth. Respondent also testified that he did not inquire as to the whereabouts of the baby, although he claims to have visited the mother in the hospital during her confinement. In July 1968, the agency interviewed the father and, upon his insistence, permitted him to visit the child twice; once he was accompanied by the natural mother. Agency records of 1968 reflect that the father was desirous of custody of his child but that he had no plans or means to accomplish this purpose. Thus, the agency therefore determined on a plan for adoption.

Published on: November 7, 2013

Court Decides Out of State Custody Arrangement

by Stephen Bilkis

The parties were married in California in March 1971, in which state their only issue was born in 1973. The parties were divorced in 1975 and under the decree the California court gave custody of the child to petitioner-respondent mother subject to reasonable rights of visitation. A New York Family Lawyer said that thereafter, the California court made an order, based upon a stipulation between the parents, modifying the visitation and support provisions of the divorce decree. The mother was permitted under the order to move to Syracuse, New York and maintain the child’s physical and legal custody, and the father was granted rescheduled visitation rights at his California residence and directed to pay all travel expenses of mother and child related to visitation. In September 1977 the mother returned the child to the father in California in compliance with the child visitation schedule and during the stay the father instituted a modification proceeding in the California court.

A New York Custody lawyer said that pending the hearing the court awarded custody of the child to the father and directed that the child not be removed from its jurisdiction. Thereafter, the California court made an order (1) adjudging that pending a further hearing in the matter, “California has jurisdiction to make a child custody determination and other orders under the Uniform Child Custody Jurisdiction Act”, (2) awarding the father legal and physical custody of the child with reasonable rights of child visitation to the mother in California “pending completion of the custody investigation”, (3) directing that neither party “shall remove the minor child from the jurisdiction” of the California court, and (4) directing a formal custody investigation by the San Mateo County Probation Department and that a written report be filed with the court, “all other issues being reserved for future determination”.

Although the mother claims that no formal hearing was ever held in California at which she could present witnesses and that no decision in writing was received by her from the California court, it is not disputed that she, the father and their attorneys appeared in the proceeding, at which time the father claims that the testimony of both parties was received and a probation interview of all the parties and others was conducted. A Nassau County Family Lawyer said the California court order recites the appearance of both parties in person and by their attorneys and the hearing of testimony. Further, the father claims that the probation report referred to in the order of the California court was completed and notice thereof sent to both attorneys.

Published on: November 6, 2013

Court Decides Custody in Relocation Case

by Stephen Bilkis

This Family action concerns custody of two children, ages 13 and 11. The current proceedings were commenced when the father filed a petition pursuant to Article 6 of the Family Court Act seeking a modification of an Order of Custody of the children after the mother relocated beyond the radius clause in their divorce stipulation. The mother subsequently filed her own petition.

A New York Family lawyer said that pursuant to a contented-to stipulation and the Judgment of Divorce the parties were divorced in 1998. As per the terms of their stipulation, the mother had sole custody of the two children and the father had certain rights of child visitation. One provision of their stipulation was that the mother could not relocate outside of a fifty (50) mile radius with the children. Each party became involved with other long-term partners and each has had other children. The mother and her paramour, have been together approximately nine years and have two children out of wedlock. The father is remarried and together they have one child. Each family unit lived in various areas of Queens and Long Island over the years until the mother moved, with her paramour, the subject children and her other two children to Pennsylvania. It is this move that has spurred the current litigation.

A New York Custody Lawyer said that in September 2006 the father filed a petition for custody of the two subject children. Despite being properly served with the custody petition, the mother did not appear in Court for over three court appearances. On the fourth court appearance, the mother did appear in Court that morning, but then did not return to Court that afternoon, despite being told to do so by the Hon. Judge’s court attorney. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to Court on the afternoon one day, and the inability of the Court to reach her by telephone, the Judge transferred custody of the subject children to the father. The father made arrangements for that order to be enforced in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. They have lived with him since that time.

Published on: November 5, 2013

Mother’s Failure to Appear Results in Custody being Awarded to the Father

by Stephen Bilkis

A couple entered into a stipulation after their divorce. As per the terms, the mother had the sole custody of their two children and the father had certain rights of visitation. A New York Family Lawyer said tne provision was that the mother could not relocate outside of a fifty mile radius with the children. Subsequently, each party became involved with other long-term partners and each has had other children. Each family unit lived in various areas over the years until the mother moved to Pennsylvania.

The father then filed a petition for child custody. Despite being properly served with the petition, the mother did not appear in court for over three court appearances. A New York Custody Lawyer said in the fourth court appearance, the mother did appear in court in the morning, but then did not return to court in the afternoon. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to court and the inability of the court to reach her by telephone, the judge transferred the custody of the children to the father. The father made arrangements for the order to be imposed in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. The children then lived with the father since that time.

During the trial each party called three witnesses. A Westchester County Family Lawyer said the father testified briefly about the terms of their divorce and about the mother’s multiple residences since then. According to the father’s testimony, the mother moved from one place to another before relocating to Pennsylvania. The transfer took place within a four year period of time. He testified he was given no advance notice of the said relocation to Pennsylvania which was over one hundred and forty miles from his home. The father further denies that he allowed the transfer. The mother then confirmed that she did not seek court’s approval about the relocation.

Published on: November 4, 2013

Court Decides Interstate Custody Dispute

by Stephen Bilkis

This is an application by the defendant husband to modify a judgment of divorce in order to grant him child custody of his two daughters. A New York Family Lawyer said the divorce decree awarded custody of the children to the wife based upon a separation agreement which was incorporated into the decree.

Shortly after the decree was entered, the parties entered into an addendum to the separation agreement whereby child custody was changed to the defendant husband and his obligation for child support payments accordingly deleted. However, the judgment of divorce was never modified to reflect these changes.

Child custody of both daughters continued in the husband without interruption until the summer of 1980. A New York Child Custody Lawyer said that during the first half of this period, the wife exercised regular visitation in Rochester, New York, but she moved to the State of Texas. Following her relocation, she kept in contact with the children by telephone and had extended periods of visitation with them in Texas, primarily during the children’s summer vacations.