Divorce

Published on: July 31, 2014

Public Assistance Denied to Pregnant Minor

by Stephen Bilkis

A New York Family Lawyer said that the mother applied for public assistance and medical aid from the County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents in Bethpage. Without any factual determination concerning the amount of child support actually furnished by her parents, the County Department of Social Services notified her that her application for eligibility for public assistance was being denied. The agency’s position was that she is under twenty-one, her parents are responsible for her, she is residing with her own parents, and they are of sufficient ability to support her. As far as the unborn child, there are no needs to be met for the unborn child.

Following a fair hearing proceeding, the hearing officer rendered a decision affirming the denial of assistance by the County Department of Social Services on the grounds that when a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

Thereafter,a New York Divorce Lawyer said the mother commenced the Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of the respondents of denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

Published on: July 30, 2014

Court Discusses Right to Counsel in Civil Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Divorce Lawyer said that the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Suffolk County Family Lawyer said that the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

Published on: July 29, 2014

Court Discusses Concept of Equitable Estoppel

by Stephen Bilkis

A New York Family Lawyer said a man and a woman appeared for conference before the Support Magistrate when the respondent man requested genetic testing be conducted before admitting to paternity of the children. The court file reflects that the man told the Support Magistrate that, although the children refer to him as dad, he is requesting genetic testing because he would like to be sure. The Support Magistrate then assigned a Law Guardian, and the matter was adjourned for further proceedings.

On the adjourned date, the court file shows that the Law Guardian advised the Support Magistrate that the children recognize the man to be their father and that he spent holidays with them. The man renewed his request for genetic testing before admitting to paternity. The matter was referred to the Family Court for determination as to whether the petitioner woman could invoke the doctrine of equitable estoppel to prevent the man’s request for genetic testing.

The court then set a schedule for submission of papers on the issue. The woman filed a notice of motion requesting that an order be made estopping the man, pursuant to Family Court Act from obtaining genetic testing to disprove paternity of the children.

Published on: July 28, 2014

Father Requests Paternity Test

by Stephen Bilkis

A New York Family Lawyer said a man and a woman appeared for conference before the Support Magistrate when the respondent man requested genetic testing be conducted before admitting to paternity of the children. The court file reflects that the man told the Support Magistrate that, although the children refer to him as dad, he is requesting genetic testing because he would like to be sure. The Support Magistrate then assigned a Law Guardian, and the matter was adjourned for further proceedings.

On the adjourned date, a New York Divorce Lawyer said the court file shows that the Law Guardian advised the Support Magistrate that the children recognize the man to be their father and that he spent holidays with them. The man renewed his request for genetic testing before admitting to paternity. The matter was referred to the Family Court for determination as to whether the petitioner woman could invoke the doctrine of equitable estoppel to prevent the man’s request for genetic testing.

The court then set a schedule for submission of papers on the issue. The woman filed a notice of motion requesting that an order be made estopping the man, pursuant to Family Court Act from obtaining genetic testing to disprove paternity of the children.

Published on: July 27, 2014

Petitioner Seeks to Modify Child Support Order

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 Nassau Family 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.

A New York Divorce Lawyer said 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: July 26, 2014

Court Decides Disposition of Family Residence

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.

A New York Divorce Lawyer said 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: July 25, 2014

Family Court Discusses Subject Matter Jurisdiction

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 Nassau County Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

Published on: July 24, 2014

Father Seeks a Downward Modification in Child Support

by Stephen Bilkis

A New York Family Lawyer said in accordance with a separation agreement, the husband was obligated to pay $750 per month to the wife as child support for the two infant of their marriage. The couple was granted a conversion divorce and the separation agreement was incorporated but not merged into the judgment.

In February 1985 the husband moved in Nassau County Supreme Court for a downward modification of child support and the wife moved in the same court for enforcement of the judgment and arrears. In settlement of both motions, a so ordered stipulation was entered in Nassau County Supreme Court which determined an allocation of the proceeds upon the sale of the marital premises. The stipulation was read into the record and commenced that both of the proceedings presently before the Court based upon the wife’s application seeking various forms of enforcement relief against the husband, and husband’s application for a downward modification of child support obligation are hereby settled on terms and conditions. It is noted that, pursuant to the terms of the stipulation and settlement, the former marital residence was sold and the husband received the sum of approximately $50,000 from the proceeds, the wife received in excess of $100,000 and the sum of $38,000 was placed in an escrow account to secure the future payment of child support.

A New York Divorce Lawyer said that on August 28, 1985, the husband again sought to reduce his child support payments, this time in the Family Court of Nassau County, and the matter was referred to a Hearing Examiner.

Published on: July 12, 2014

Father Appeals Order Increasing Child Support

by Stephen Bilkis

A New York Family Lawyer said this is a support proceeding pursuant to Family Court Act article 4 wherein the father appeals from an order of the Family Court, Nassau County dated 7 February 2008 which denied his objections to an order of the same court dated 13 December 2007 granting, after a hearing, the mother’s petition for an upward modification of his child support obligation and directing him, inter alia, to pay child support in the sum of $225 per week.

A New York Child Custody Lawyer said the court reverses on the law, with costs, the order dated 7 February 2008, sustains the father’s objections, vacates the order dated 3 December 2007 and remits to the Family Court, Nassau County for further proceedings in accordance herewith.

Previously, the father’s petition for a downward modification of his child support obligation was granted by the Family Court, which had been set in a settlement agreement that was incorporated, but not merged, into the parties’ judgment of divorce. The father’s support obligation was modified to the sum of $50 a month on the basis of the dissolution of his business which occurred through no fault of his own. The downward modification was affirmed by this Court. The mother subsequently petitioned for an upward modification of the father’s child support obligation, alleging there had been a substantial change in circumstances.

Published on: June 22, 2014

Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted that branch of the plaintiff’s motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney’s fee.

A New York Custody Lawyer said that the relevant facts are set forth in a related appeal. An appellate court should rarely modify a pendente lite award, and then ” only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires”. Further, pendente lite awards “should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living” “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored”. Here, in denying that branch of the defendant’s cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant’s actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court’s determination on this issue. Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of pendente lite child support.

The Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of an interim attorney’s fee.