New York Family Law Blog
This case was about a couple whose divorce was finalized in 2007. In their marriage, they had one child who was given to the father’s custody. In the divorce judgment, a marital settlement was also included. Because of the big difference in the income of the mother and father, the bulk of the expenses for the child was assigned to the father. The mother was to cover for the medical and dental insurance of their child, said a New York Family Lawyer. The mother was given visitation of at least forty percent of the overnights. This is subject to certain conditions. The first was for the mother to have psychological evaluation, and she should attend an on-going psychological or psychiatric counseling. The second is to have mother’s home inspected frequently for home and overnight visitation.
According to a Nassau County Family Lawyer, the father asked the court to modify the judgment. He asked this a year after the divorce. This was to have the mother pay child support because he claims to have suffered a serious injury, which lowered his income significantly. In his petition, he alleged that the child’s needs also increased, and the mother’s financial status has improved. In response, the mother said she was the one entitled to receive child support after the time-sharing was adjusted. The mother filed a motion for summary judgment, and a hearing officer recommended that it should be granted and to have the father pay $182 for should support. The Circuit Court adapted the recommendation and denied the father’s motion to vacate.
The case was submitted to the Court of Appeals for review. For a summary judgment to be allowed, the court says there should be no disputed issues of material fact and the party asking for it is entitled as a matter of law. In this case, the father did not meet the requirements. The decision was based on the assumption that a parent spends a substantial amount of time with the child. Meaning, the time spent is at least forty percent of the overnights per year. The parent’s agreement was already such, and that cannot be disputed, said a New York Visitation Lawyer.
The issue is that the father had presented evidence showing mother as having very few overnight visitations with their child. The conditions of her house as require by the agreement was not being met. This he further supported by the inspection report done by a third party. The mother argued her exercising of her visitation rights infrequently is immaterial. A Nassau County Visitation Lawyer said the Court of Appeals disagrees. They said the entitlement of a party to the adjustment is not fixed. One of the reasons not to grant is if the parent shows the likelihood of not exercising the time-sharing schedule. They reversed the decision and remanded it for further determination.
Each parent has visitation rights with their child. The law is set up so that if the time spent with one is large enough, they share in the expenses. This is still subject to review because even if it is scheduled but the parent does not go then, there should be no expense to cover.
An experienced family lawyer understands that going through a divorce is a highly stressful experience, particularly when children are involved. It is important to ensure that your rights, and the rights of your child are protected throughout the legal process. It is important to speak to a skilled attorney at the earliest point in the process to ensure that the case runs smoothly, and you receive a favorable outcome. Whether you need to file for a divorce, require an order for protection, or have a visitation or custody dispute, contact our office for guidance and advice.
If you are a parent trying to get equitable financial share from the other parent, you may be entitled to it. Stephen Bilkis and Associates can go through the proceeding with you to set it up. We have offices in Queens, the Bronx, Brooklyn, Staten Island, and Manhattan to assist you. We also have offices on Long Island in Suffolk County and Nassau County and Westchester County, Long Island. Call us now at 1-800-NY-NY-LAW for a free consultation.