New York Family Law Blog

Published on: October 13, 2014

Husband Claims Aandonment and Adultery in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Family Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

The husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 12, 2014

Court Looks at Jurisdiction Issue in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Divorce Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

A Nassau County Family Lawyer said the husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 11, 2014

Father Seeks to Modify Restraining Order Against Him

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties’ three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties’ two daughters. The parties’ teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a “request for order” in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.

Published on: October 10, 2014

Father Appeals Order Granting Sole Custody to Mother

by Stephen Bilkis

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County, which, without a hearing, inter alia, granted sole custody of the subject child to the mother, with child visitation to the father.

A New York Family Lawyer said that an award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed. Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing.

Here, a New York Divorce Lawyer said in light of the parties’ conflicting allegations, the Family Court erred in awarding sole custody of the subject child to the mother without the benefit of an evidentiary hearing. Nor did the court conduct an examination of the parties, interview the child, or solicit the opinion of the attorney for the child. Under such circumstances, it cannot be concluded that the court possessed sufficient information to render an informed determination consistent with the child’s best interests. Accordingly, the court remits the matter to the Family Court, Nassau County, for a hearing and, thereafter, a new determination on the custody petition.

Published on: September 29, 2014

Grandmother Seeks Visitation Rights

by Stephen Bilkis

A New York Family Lawyer said a grandmother seeks to obtain visitation privileges with her grandson. The child was born and resided with the complainant, his maternal grandmother, for five years. The child’s father is in prison, and his mother, who was addicted to drugs, already died.

Previously, a dispute arose between the complainant, as maternal grandmother, and the paternal grandmother, concerning custody of the child. However, the Supreme Court gave the child custody to his paternal aunt and granted both the maternal and paternal grandparents for limited visitation rights.

The paternal aunt subsequently initiated an adoption proceeding in the family court. As a result, they became the adoptive parents of the child.

Published on: September 28, 2014

Father Seeks to Restrain Mother from Relocating Children

by Stephen Bilkis

A New York Family Lawyer said in the matter before the Court concerns child custody of two children. The children are the biological children of the divorced parties herein. The current proceedings were commenced when the father filed petitions pursuant to Article 6 of the Family Court Act (FCA) in Albany County Family Court seeking child custody or, in the alternative, to restrain the mother from relocating with the children. After the mother relocated with the children to South Carolina, The Albany County Family Court issued an order granting the father temporary child custody of the children. The father went to South Carolina to obtain physical child custody of the children and then immediately relocated to Nassau County, New York. The Albany Family Court matter was thereafter transferred to this Court. The mother also filed her own petitions seeking child custody.

A New York Divorce Lawyer said that pursuant to a stipulation and Judgment of Divorce, the parties were divorced in 2004. As per the terms of their stipulation, the parties had joint legal child custody of the children with the mother having physical child custody and the father having certain rights of parenting time. At the time of the divorce, the parties were living in the Albany, New York area, having relocated together from Long Island. Immediately after the divorce was finalized, the parties continued to live together for financial reasons, but eventually moved into separate apartments in the Albany area, with the children living with the mother.

A New York City Family Lawyer said the father exercised his parenting rights during this time, though the extent to which he did so is in dispute. The mother met her current husband, a resident of South Carolina, in an online chat room and began a long distance relationship which resulted in one of them traveling once every few months to see the other. At other times they would both travel and meet somewhere in the middle. At some point during 2005 the mother had a hysterectomy which she blamed for causing her to lose her job. The loss of her job, and the father’s alleged failure to provide regular child support, placed her in dire financial straits which she believed could only be remedied by a relocation to South Carolina where, aside from the new husband, her mother and sister resided.

Published on: September 27, 2014

Father Claims Ex-Wife Willfully Prevented him from Exercising Visitation Rights

by Stephen Bilkis

A New York Family Lawyer said a man sought an order to have his former wife held in contempt for her willful and deliberate failure to comply with the stipulation of settlement, in that he allegedly interfered with his right to frequent and regular visitation with and telephone access to his children and by alienating the children from him through numerous acts of disparaging.

The court then granted the man’s motion by its amended decision and order, to the extent that a hearing was ordered. The contempt hearing was held with set schedules.

A New York Divorce Lawyer said the parties’ stipulation was incorporated but not merged into the parties’ decision of divorce. Pursuant to the unequivocal terms of the stipulation, the woman was prohibited from alienating the children from the her former husband, placing any obstacle in the way of the maintenance, love and affection of the children for the man, or to hinder, impair or prevent the growth of a close relationship between the children and their parents, respectively, or cause others to do so. Moreover, in sharing joint legal custody of the children, the woman was specifically required to consult with the man regarding decisions affecting the children’s education, health and religion.

Published on: September 26, 2014

Court Hears Combined Adoption and Visitation Proceeding

by Stephen Bilkis

A New York Family Lawyer said in this combined adoption and visitation proceeding, the mother is seeking to have her son, adopted by her new husband. The father of the child however opposes the adoption and visitation request. The guardian of the child also opposes the mother’s petition and requests for forensic evaluation of the parties and the child.

This matter stemmed from the situation where the complainant mother and the father of the child never married or lived together.

A New York Divorce Lawyer said the mother of the child testified that she knew that the father of the child was married when she first met him, even if he told her that the marriage was over. The mother testified that after the father’s family arrived, their relationship ended, even if the father of the child continued to call her to discuss the child during the months that followed.

Published on: September 24, 2014

Father Fights for Custody of Eighteen Month Old

by Stephen Bilkis

A New York Family Lawyer said the Child was born on October 22, 2002 and came into the custody of Department of Social Services (DSS) who placed her with the foster parents on October 24, 2002. The Child has always resided with the foster parents. DSS did not have any contact with the case worker during the months of October and November of 2002. Between November 2002 and January 2003, the Court finds that the second DSS case worker attempted, on approximately six occasions, to have direct contact with the father, by calling him number and leaving messages for him. The father’s number had been given to DSS by the first case worker.

It was not until sometime in January 2003 that the case worker was in fact able to have telephone contact with the father when he answered the telephone. In January of 2003 he was advised of his need to plan for the Child. His response was to give the caller, the DSS worker, an incorrect last name. The court credits the testimony of the case worker that during this first conversation in January 2003, in response to the revelation that first caseworker had named him as the father, he responded “about time.” Thus, the court finds that he had actual knowledge of the existence of the three month old Child and he acknowledged that he was the father during the same conversation. The case worker wrote the address she had been given.

A New York Divorce Lawyer said the court does not credit the father’s testimony that it was not until four months later, in May of 2003, that it was he who had initiated the first contact with DSS by making a telephone call. Neither is it credible that the father never received any telephone messages left for him by case worker at his number or that the conversation in January 2003, about which the caseworker testified to at length, never took place.

Published on: September 23, 2014

Court Decides of Petition for Relocation Should be Granted

by Stephen Bilkis

A New York Family Lawyer said that, the petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

A New York Divorce Lawyer said that, on April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, Andrew Smith, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

A New York City Family Lawyer said that, on June 5, 2003, the Court ordered that the parties submit to an investigation and report with the Nassau County Probation Department, Family Division. The Court also ordered that Ms. Susan Silverstein, forensic evaluator, prepare a report. On June 30, 2003, the respondent filed an order to show cause with this Court, requesting that the petitioner be enjoined from relocating the children from her residence or, alternatively, why the respondent should not be given custody of the children. A temporary order was made thereafter, dated August 28, 2003, which restrained the petitioner from leaving the jurisdiction of this Court with the Jones children until the time of hearing. The petitioner made arrangements for Joe and Ann to remain in the same school district in Nassau County for the start of the 2003-2004 school year by residing with their maternal grandmother.