Divorce

Published on: September 16, 2014

Court Examines Jurisdiction Issue in Custody Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.

The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.

A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child’s birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.

Published on: September 14, 2014

Plaintiff files for Order Directing Defendant to Leave Marital Home

by Stephen Bilkis

A New York Family Lawyer said that, in an action for divorce plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide child support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A Nassau Order of Protection Lawyer said that, when the motions were originally submitted on April 30 last, we discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, we referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. On June 9, 1971, a Judge of that Court, after a discussion with counsel, returned the matters to us for determination. We have received and carefully reviewed the transcript of the remarks made on that occasion. The Judge said that what the Justice wants this Court to do is to determine everything but the fact that the divorce is granted.’ Surely, if the Family Court granted an order of protection it would render moot the request for exclusive occupancy and that determination would in turn affect the allowance for support.

The issue in this case is whether the action for divorce plaintiff’s motion to give her exclusive possession of the marital home and restraining the defendant from removing property therefrom should be granted.

Published on: September 12, 2014

petitioner Files an Order to Compel Support

by Stephen Bilkis

A New York Family Lawyer said this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel support of a dependent minor child under the Uniform Support of Dependents Law in accordance with Domestic Relations Law, Article 3-A.

Also, pending before the Court is a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Divorce Lawyer said that in Queens County, the parties, formerly husband and wife, lived together during their marriage. Dissension arose between them, and the wife, the petitioner n this case, started a separation action, which was tried in 1959, and as a result, the court made a judgment dismissing her complaint. The custody of the infant daughter (then less than two years old and now four years old) was granted to her. The court issued an order directing the father to pay the mother for the child’s support the sum of $40 per week and allowing him weekly visitation.

Published on: September 3, 2014

The Issue in this Case is Whether Plaintiff Stated a Cause of Action

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney’s fees. Although Defendant submits no opposition papers to Plaintiff’s motion, Defendant affirmatively moves to dismiss the action “pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter.” Plaintiff opposes Defendant’s motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties’ two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child’s residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother’s residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties’ respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys’ fees on behalf of wife so as to permit her to have proper and sufficient representation.

A New York City Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

Published on: September 2, 2014

Court Decides if Spousal Support and Alimony Should be Suspended Based on Denial of Visitation

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the plaintiff wife had previously been granted a divorce, the defendant husband appeals (1) from an order of the Supreme Court, Suffolk County, dated August 25, 1981, which granted plaintiff’s motion for the appointment of a receiver of all defendant’s property in the State of New York, “particularly all of his right, title and interest in and to the former marital residence”, named plaintiff as the receiver, awarded plaintiff a counsel fee of $750, and denied defendant’s cross motion to, inter alia, suspend prospective payments of alimony and child support, on the ground that plaintiff unreasonably withheld visitation, and (2) from a further order of the same court, dated October 22, 1981, which denied his motion to renew.

In a stipulation settling their differences, which was incorporated but not merged in the judgment of divorce, the parties agreed, inter alia, that plaintiff would have exclusive possession of the marital residence, owned by them as tenants by the entirety. However, plaintiff was given the right to elect to sell the marital residence. The defendant further agreed to pay plaintiff $50 per week alimony and a total of $100 per week child support. The stipulation also provided: “Each party shall own free of any claim or right of the other all of the items of property, real, personal and mixed, of any kind, nature or description, and wheresoever’s situated, which are now owned by him or her”.

A New York Divorce Lawyer said that, in January, 1981, defendant petitioned the Family Court, Nassau County, for an order suspending his child support obligations on the ground that plaintiff had unreasonably denied him visitation with the children. By order dated January 28, 1981, his application was denied. A Nassau Visitation Lawyer said that, in June, 1981, defendant made a second application in the Family Court, Nassau County, for suspension of alimony and/or maintenance, on the ground, inter alia, that he was unreasonably denied visitation. By order dated July 17, 1981, his application was, again, denied and a judgment for arrears was entered against him.

Published on: September 1, 2014

Respondent Allegedly Fails to Comply with Separation Agreement

by Stephen Bilkis

A New York Family Lawyer said this is an appeal from an order of the Family Court of Ulster County, entered May 8, 1986, which granted petitioner’s application, in a proceeding pursuant to Domestic Relations Law article 3A, for an order directing respondent to pay for child support of his child. A Nassau Child Support Lawyer said that, petitioner and respondent were married in 1950 and divorced in 1980. Pursuant to a separation agreement entered into in 1977, respondent agreed to pay $150 per week to petitioner and their two unemancipated children as child support, such sum to be reduced by $25 as each child became emancipated. It is clear that respondent has failed to comply with this provision of the separation agreement, as petitioner was awarded a money judgment in Supreme Court in 1983 for support arrears.

A New York Divorce Lawyer said that, petitioner commenced this proceeding pursuant to Domestic Relations Law article 3A in 1984 in Nassau County Family Court. The petition and petitioner’s testimony were certified and transmitted to Ulster County Family Court, where respondent resided. Following a hearing in Ulster County Family Court and petitioner’s appearance in Nassau County Family Court to answer questions concerning her finances, Ulster County Family Court ordered respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages. It is from this order that respondent appeals.

The issue in this case is whether the Ulster County Family Court erred in ordering respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages.

Published on: August 31, 2014

Court Revisits Custody and Visitation Rights in Divorce Case

by Stephen Bilkis

A New York Family Lawyer said in March 29, 1973, an order from the Family Court awarding custody of the child of the parties to respondent and granting visitation rights to the petitioner was entered and appealed by the latter. Consequently, the said order was reversed and the custody of the child was awarded to the mother, the petitioner. For the determination of visitation rights to be granted to the respondents, the proceeding was remitted to the Family Court.

It has been ruled that the custody of this child of tender years has been in the mother pursuant to a separation agreement which became incorporated into a foreign decree of divorce in 1969. The Family Court specifically found the mother not to be unfit.

A New York Divorce Lawyer said the Court have reviewed the record and found that the mother is neither unfit nor less fit than the father. Under these circumstances, it was error for the Family Court to change custody to the father.

Published on: August 30, 2014

Petitioner Moves for Discontinuation of Child Support for Eighteen Year Old Child

by Stephen Bilkis

A New York Family Lawyer said sometime in October of 1968, a separation agreement was entered into by the parties (husband and wife), the terms of which were subsequently incorporated into a divorce decree granted and entered in Mexico. The agreement gave the mother, the respondent, custody of the children of the marriage and ordered the petitioner to provide support for their son, S, in the amount of $30 per week with visitation rights. Thereafter, on petitioner’s motion to compel visitation, the court by order entered 15 February 1977 granted petitioner specific revised rights of visitation with S.

Since the date of entry of the order of 15 February 1977, petitioner alleges that: he has been permitted to visit S only five times and has not been permitted to see him at all for the past five years; on his last attempt to see S, respondent’s husband told him S did not want to see him and ordered him to leave; in 1979, he discovered that S ceased using his surname, he had taken that of his stepfather and he has been known by that name since 1976.

A New York Divorce Lawyer said that subsequently, petitioner moves pursuant to § 241 of the Domestic Relations Law for the suspension of the provision in the judgment of divorce for the support of the parties’ eighteen year-old son.

Published on: August 29, 2014

Husband Moves to Terminate Wife’s Visitation Rights

by Stephen Bilkis

A Manhattan Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband’s motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff’s visitation with the parties’ son to the extent of reducing her visitation rights and denied plaintiff’s cross motion to vacate the defendant’s motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:

A Manhattan Family Lawyer said that first, plaintiff should be allowed visitation with the child. The Special Term’s finding that plaintiff’s exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant’s motion insofar as it sought to eliminate all visitation rights.

Second, the Special Term’s finding that plaintiff’s visitation rights must be exercised in New York under supervised conditions since plaintiff had previously fled the jurisdiction with the marital issue and had disregarded prior judicial decrees is also correct. Plaintiff’s past history amply supports the conclusion that plaintiff will likely abscond with the child if permitted unfettered access. Based on the protracted record and extensive litigation here, a further hearing on this issue is unnecessary, as held in the landmark cases of McKinley v. McKinley and Heely v. Heely.

Published on: August 28, 2014

Court Decides if Petitioner and Respondent May be Subject to a Licensee Proceeding

by Stephen Bilkis

A New York Family Lawyer said that, in January of 1989, the petitioner purchased a premises known as Pine brook Avenue, New York. A certified copy of the deed to the premises was offered into evidence, although the respondent concedes that her name does not appear on the deed or mortgage. The monthly mortgage payment for the premises at issue is $1,350 per month. In April of 1994, the parties had a child out of wedlock. In December of 1997, the respondent and the parties’ minor child moved into the subject premises with the petitioner. At the time that the respondent moved into the premises in question, there was no written agreement between the parties with regard to the subject premises and the respondent was not married to the petitioner. However, the parties were involved in a relationship, as boyfriend and girlfriend, and had been involved for some time. In July of 1999, the parties’ second child was born out of wedlock. Sometime after the birth of the parties’ second child, in early 2000, the relationship between the parties failed.

A New York Divorce Lawyer said that, soon thereafter, the respondent brought a Family Court proceeding for child support of the parties’ two minor children. As a result of this proceeding, a Family Court order of support was issued. In May of 2000, the respondent commenced another Family Court proceeding. This proceeding was to obtain a protective order. On December 1, 2000, an order of protection was ordered by the Nassau County Family Court, in favor of the respondent and against the petitioner, upon default of the petitioner. Shortly after the order of protection was issued, the petitioner demanded that the respondent leave the premises.

A Westchester County Family Lawyer said that, in December of 2000, the petitioner served the respondent a 10-day notice to vacate the premises. In January of 2001, the petitioner commenced a holdover proceeding to obtain exclusive possession of the premises in question, on the ground that the respondent is a “licensee” whose license has been terminated by the proper notice and service under RPAPL 713 (7). The respondent waived any defects in the 10-day notice, the petition and any jurisdictional defects. At the commencement of this proceeding there was no child support or custody order in effect. The order of protection, however, was in effect.