Westchester County

Published on: October 18, 2013

Father Moves for Sole Custody

by Stephen Bilkis

A mother filed a motion to modify their divorce decree by deleting the requirement that she must reside with her three children within a radius of fifty miles of New York City. A New York Family Lawyer said the purpose of her application was to relocate the children with her. The father however cross-moved for sole custody of the children or, in the alternative, for an order conditioning the mother’s right to custody on her continued residency with the children within the aforementioned fifty miles radius.

Pursuant to the agreement, the father had the right to visit the children at any time on reasonable notice to the mother, and to have the children spend with him alternate weekends from Friday evening to Sunday evening. A New York Custody Lawyer said if the children went to summer camp, the father had the right to have any or all of them spend one-half of the remaining summer vacation time with him.

The mother stated that she wanted to relocate because she would be able to secure for them, similar if not, superior educational advantages without costs as well as outstanding recreational and summer activities at minimal costs. As for herself, she would be able to pursue her career in advertising and sales promotion which she could no longer do in New York City and at the same time spend more time with her children.

Published on: October 17, 2013

Court Discusses Complicated Case Involving a TRO

by Stephen Bilkis

Plaintiff A is the court appointed article 81 financial guardian for B. He is also the co-trustee of the B Family Trust. A New York Family Lawyer said these appointments were made only after the original action was brought. A has now interposed a third amended complaint on behalf of his ward. Defendant C as trustee and certain business defendants have brought a pre-answer motion to dismiss the fifth through fourteenth causes of action asserted in the third amended complaint. C has now joined in that motion in her individual capacity. Defendant D has separately moved to dismiss the causes of action asserted as to her. Defendant E separately moved to dismiss the causes of action asserted as to him.

F law firm separately moved to be relieved as counsel of record for certain defendants. This motion has already been denied by the court. A cross moved to: disqualify the F law firm; appoint a receiver; appoint a successor trustee in place of C of the B Family Trust; hold a hearing on whether a guardian ad litem should be appointed for G; strike D’s reply in support of her motion to dismiss and strike C’s reply in support of her motion to dismiss. A subsequently withdrew his application to have a receiver appointed. A New York Custody Lawyer said that although the parties represented to the court that the only relief left in the cross-motion pertained to disqualification of the F law firm, other requested relief has not been formally withdrawn. Thus, still outstanding is A’s request for the appointment of a successor trustee, a guardian ad litem hearing and to strike reply papers on the motions to dismiss.

Because all of the motions and cross-motion are substantially interrelated and rely on similar facts and arguments made sometimes in overlapping papers, they are consolidated for consideration and determination in this single decision. At the outset the court rejects arguments that the court should refuse to consider any of the relief requested in A’s cross-motion because it was made at a time when a stay of the proceedings was in effect. Regardless of whether the temporary restraining order contained in the August 27, 2007 Order to Show Cause precluded the cross-motion at the time it was originally interposed, that TRO had long expired by the time the cross-motion was actually submitted to the court. In the interim, and certainly by the time of submission, all parties had been given an opportunity to oppose the relief requested in the cross-motion on the merits. Thus the relief requested by A will be considered on the merits.

Published on: October 13, 2013

Court Decides Paternity Issue

by Stephen Bilkis

A man filed a verified petition seeking an order of the court vacating an order of filiation entered upon his admission. A New York Family Lawyer 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. 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.

A New York Custody Lawyer said 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. 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.

Published on: October 11, 2013

Court Modifies Child Support Obligation

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant man appeals from a decision of the Suffolk County Supreme Court made after a nonjury trial, and as limited by his brief, from stated portions of a judgment of the same court which, upon the decision has awarded the complainant woman a 50% share in the appreciation of the marital residence, directed the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, directed the defendant man to pay the sum of $352.27 per week in child support, and fixed the commencement date of the action as the valuation date for equitable distribution of the married parties’ assets.

It is ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the complainant woman a 50% share in the appreciation of the marital residence, by deleting the provision thereof directing the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, and by deleting the provision thereof directing the defendant man to pay the sum of $352.27 per week in child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Suffolk County Supreme Court for further proceedings consistent herewith, and for entry of an amended judgment thereafter; and it is further ordered that pending a recalculation of the defendant man’s child support obligation, he shall continue to pay the sum of $352.27 per week for the support of the subject child.

A New York Custody Lawyer said the defendant man acquired the marital residence prior to the parties’ marriage, using the proceeds of a settlement from a personal injury action. The deed and mortgage were placed and kept solely in his name. Consequently, the marital residence is separate property. The appreciation of, or increase in the value of, separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. The complainant failed to carry her burden establishing that the marital residence appreciated in value during the parties’ marriage and, if so, that such appreciation was due in part to her efforts. Thus, it was error for the Supreme Court to award the complainant woman a 50% share in the appreciation of the marital residence. Moreover, it was error for the Supreme Court to direct that this separate property be sold. However, the complainant woman is entitled to a credit for her equitable share of the marital funds that were used to pay off the mortgage, which was the defendant man’s separate debt. Accordingly, the matter is remitted to the Suffolk County Supreme Court for the calculation of that credit.

Published on: October 8, 2013

Appellant Seeks Modification of Child Support Obligations

by Stephen Bilkis

The instant case arises from an award of child support entered after an inquest, upon the appellant’s default in appearing at the hearing. A New York Family Lawyer said the appellant alleges he became sick immediately prior to the commencement of a support hearing in February 1990 and asked his wife’s attorney to inform the court that he went home ill. Instead, his wife’s attorney only informed the court that he was present, but had left. Thus, the wife was the sole witness at the inquest, and, based upon her testimony, the Hearing Examiner, in an order, awarded child support and maintenance. The appellant sporadically paid only a small fraction of the support ordered by the court.

A New York Custody Lawyer said that the appellant further alleges that from the time of the support proceedings until April 1991 he either lacked counsel or that the counsel which represented him did not provide him with effective assistance of counsel. The appellant then engaged his present counsel who moved by order to show cause to vacate his default pursuant to CPLR 5015. The motion was denied by Hearing Examiner in an order and objections to the Hearing Examiner’s order were denied in the order appealed from.

The appellant sought modification of his support obligations pursuant to Family Court Act § 415. Hearing Examiner Silverman ordered a combined hearing on the issues of downward modification and whether the appellant had willfully violated the support order.

Published on: October 5, 2013

Court Discusses Jurisdiction Issue in Custody Battle

by Stephen Bilkis

In this motion for leave to reargue respondent’s motion to dismiss for lack of jurisdiction, and for leave to reargue the decision and order of this Court dated August 8, 1977. A New York Family Lawyer said that, respondent contends that this Court lacks jurisdiction in this proceeding brought by petitioner, a resident of Queens County, for upward modification of divorce decree, Kings County, dated January 31, 1974. A Queens Divorce Lawyer said that, respondent argues that since he is a resident of Putnam County, a county which does not adjoin the City of New York, this Court lacks jurisdiction (and by inference that petitioner could proceed only by a petition brought in Putnam County, or by a proceeding under the Uniform Support of Dependents Law, U.S.D.L.).

A New York Custody Lawyer said that, in October, 1974, an order was made in the Family Court, Kings County, where petitioner then resided (respondent then resided in New York County), on petitioner’s petition for enforcement of said decree. On March 18, 1977, respondent, then a resident of Putnam County, filed a petition in the Family Court, Queens County (where petitioner then resided and now resides) requesting expanded visitation with the child. A Queens Family Lawyer said that, on March 29, petitioner filed a petition in this Court requesting upward modification of support for the child. Both petitions were returnable in Kings County. When the Court was informed that neither party resided in Kings, the file was transferred to Queens County.

A Westchester County Family Lawyer said that, now respondent argues lack of jurisdiction as to petitioner’s petition, in spite of the fact that he desires a hearing in this County on his petition. In addition to the reasons set forth below it is obvious that to require two hearings, in two counties would create a needless multiplicity of suits.

Published on: September 23, 2013

Court Decides on Case Involving Laches

by Stephen Bilkis

This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.

A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.

The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.

Published on: January 5, 2013

Child Perishes Due to Neglect and Abuse

by Stephen Bilkis

CC, born on 1 June 1984, was removed from the care of her parents, A and B, on 11 July 1984 and placed in foster care by the Nassau County Department of Social Services pursuant to Family Court Act § 1024. On 12 July 1984, the Department of Social Services filed a neglect petition alleging that CC is a neglected child as defined by § 1012 of the Family Court Act.

A New York Family Lawyer said on or about 10 July 1984, A beat CC’s half sibling, DD, to a degree that it caused said half sibling death on July 11, 1984. A beat said half sibling with such force and effect to cause said half sibling to hemorrhage into his abdomen which was a result of lacerations of the mesentery, with a rupture of the small bowel. In addition, DD had multiple rib fractures on both sides. B was present while DD was being beaten and failed to take any steps whatsoever to prevent it from happening or continuing. It is most likely that CC will be treated in a similar manner.

By order of this Court, dated 18 July 1984, temporary custody of CC was placed in the Department of Social Services. By amended temporary order of 26 October 1984, temporary custody was continued in the Department of Social Services, with visitation for the parents to be arranged by the Department.

Published on: July 21, 2012

Court Discusses Custody Decision

by Stephen Bilkis

In order for a court to modify any order previously enacted by that court or another, the petitioner/complainant is responsible to demonstrate that there has been a significant change in circumstances that would warrant the court to take action to modify the agreement. A significant change is something more than just a desire to change the circumstances of the decree. For instance, if a custodial parent is arrested, it may be important to modify the elements of the decree to change the primary custody location to the non-custodial parent who is not incarcerated.

A New York Family Lawyer said there are many situations that can provoke a change in the circumstances enough to warrant a finding to change the decree. The most common changes are those in residences. When two parents share custody of a child and they both reside in close proximity, things usually go fairly smoothly. However, if one of those parents move to a different state, the other parent is likely to file for a change in the original decree based on a significant change in circumstances. Sharing custody of a child locally is easy. Sharing custody of a child from different states can often pose a financial hardship to the parents involved in a significant manner. It then falls to the court to determine what if any changes need to be made to the original divorce decree to accommodate the changes in life situations.

When a custodial parent loses a job and source of income so that they are unable or unwilling to support the child on their own, the family may resort to a change in the custody arrangement through the court system in order for the child to reside with the parent who is most capable of caring for them. Severe illness of one parent can also be taken into consideration as a change of situation significant enough to cause the court to act on changing the original court ordered decree.

Published on: September 8, 2011

Another Hollywood Marriage Bites the Dust

by Stephen Bilkis

Friday, January the 28st 2011 marked the end of a marriage made in Hollywood heaven, said a New York Family Lawyer with inside information. Actress Eva Longoria and her NBA superstar husband Tony Parker terminated their three-year marriage in a courtroom in Texas late last week.

Although anyone who has been following the media storm over the last few weeks which has surrounded the couple knows that the split occurred as a result of Parker’s now infamous infidelity, the divorce petition Longoria submitted to the court flagged irreconcilable differences as the reason for the split. In Long Island and Westchester County, divorce cases are handled in a similar way.

Ironically, the state that brought them together was also the state where the storybook marriage came to a dramatic close following Parker’s extramarital tryst. Longoria, who is originally from the Texas town of Corpus Christie, fell for Parker, who is one of the star players for the San Antonio Spurs. On the mend after her painful divorce from Tyler Christopher (of General Hospital fame) in 2004, she fell for Parker. They were married midyear in 2007. The New York Family Lawyer we spoke with said it is not uncommon in the wake of a divorce for unhitched couples to go back to their roots to seek comfort and safety; likely one of the reasons Longoria became involved with Parker.