New York Family Law Blog

Published on: August 5, 2014

Court Looks at Whether Respondent may be Subject of a Summary 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 Nassau Order of Protection 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.

Published on: August 4, 2014

Defendant Claims Lack of Subject Matter Jurisdiction

by Stephen Bilkis

A New York Family Lawyer said that, this is a proceeding under Section 890, subdivision 1 of the Code of Criminal Procedure against a father who is alleged to have neglected to provide for his wife and child according to his means. The proceeding came on for trial and the Court ordered a payment of $20 weekly. A bond was required and the matter adjourned to give defendant an opportunity to furnish the bond.

A New York Divorce Lawyer said that, the defendant has raised a question of jurisdiction. However, the Court entertained serious doubt as to its jurisdiction, and on its own motion, took the question under consideration.

Nassau County Family Lawyer said the issue in this case is whether the Children’s Court of Nassau County have exclusive jurisdiction of child support proceedings completely pre-empting the District Court of Nassau County in the cases enumerated in Section 30 of the Children’s Court Act.

Published on: August 3, 2014

Wife Seeks Annullment of Marriage

by Stephen Bilkis

A New York Family Lawyer said that on September 16, 2000, Mother and Father, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of said marriage, the Mother believed that she had been divorced from her prior husband, with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action on January 19, 2000. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce dated December 21, 2000, which incorporated but did not merge with the Agreement. This notwithstanding, the Mother and Father lived as husband and wife with the son of the prior marriage, and on May 15, 2001, they had the child subject to this proceeding.

A New York Divorce Lawyer said that, difficulties apparently ensued between the couple in 2004, prompting the Mother a practicing attorney to commence custody, family offense and child support proceedings against the Father in Nassau County Family Court on January 25, 2005. A Nassau Order of Protection Lawyer said that, a Temporary Order of Protection was issued in the Mother’s favor. There was Child Protective Services involvement with the family. On August 26, 2005, the Family Court entered a Temporary Order of Support ordering the Father to pay temporary support and child care expenses in the sum of $486 biweekly to the Mother. The Father was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

A New York Divorce Lawyer said that, shortly thereafter, on or about September 14, 2005, the Father commenced an Action for Annulment against the Mother in the District Court of Clark County in the State of Nevada, on the grounds that the Mother was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the Mother failed to answer or appear on that action and a default was declared against her on October 10, 2005. The Eighth Judicial District Court of Clark County, State of Nevada then issued a Decree of Annulment on November 15, 2005, declaring the prior marriage to be “null and void and of no effect,” and restoring each of the parties to the status of a “single unmarried person.” Relevantly, the Nevada Decree also adjudged and decreed that “each party be awarded his or her property as determined in accordance with Nevada law and that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her.”

Published on: August 2, 2014

Court Decides Whether Child Support is Warranted

by Stephen Bilkis

A New York Family Lawyer said that, 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 child support of a dependent minor child under the Uniform Support of Dependents Law (Domestic Relations Law, Article 3-A). There is also pending before the Court 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 the parties, formerly husband and wife, lived together during their marriage in Queens County. Dissension arose between them, and the wife (the present petitioner) started a separation action, which was tried in 1959, and resulted in a judgment, dismissing her complaint awarding her the custody of the infant daughter (then less than two years old and now four years old), directing the father to pay the mother for the child support the sum of $40 per week, and allowing him weekly visitation. A New York City Family Lawyer said that, it appears that the parties, after the rendition of this judgment, again lived together; dissensions again arose; about April, 1960 the wife left the husband, taking the child with her; thereafter she went to Florida with the child and both still live there.

A Manhattan Family Lawyer said that, in June, 1960 this proceeding was commenced in the appropriate court in Florida and transferred to the Children’s Court of Nassau County, where the father now resides. On November 2, 1960, an order was made, directing payment of $40 per week for the child’s support. This order was appealed from. On January 17, 1961, a further order was made, continuing the provisions of the order of November 2, 1960 and further directing payment of $20 per week for the support of the wife. It does not appear that this order has been appealed from. Up to this point, respondent (admitted to the practice of law, but employed and making his living as a salesman) had defended in person. A Nassau Child Support Lawyer said that, on April 6, 1961, by his present counsel, he moved to vacate the order of January 17, 1961, which motion was granted to the extent that on April 27, 1961 the provision of the order of January 17, 1961, providing for payments for the wife’s support was vacated as of March 27, 1961, when, the court had learned, the wife had obtained a decree of divorce in Florida and shortly after married; in all other respects the motion was denied. From such denial an appeal was taken. On April 27, 1961 likewise an order and an amended order were made, continuing the direction for payment of $40 per week for the child’s support; from all of which orders appeals were taken.

Published on: August 2, 2014

Court Discusses Interim Custody Agreement

by Stephen Bilkis

A New York Family Lawyer said the couple purchased their marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the wife commenced an action for a divorce and ancillary relief. In a pendente lite (pending in court) order, the Supreme Court awarded the defendant husband interim custody of their children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A New York Divorce Lawyer said that after a nonjury trial, the Supreme Court awarded physical custody of the children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

However, a Bronx Family Lawyer said the Supreme Court erred in calculating the husband’s child support obligation based on an imputed annual income of $50,000 per year. That imputation was based upon findings that the husband’s average annual reported income over the years 2000-2003 was $37,264 and that, in addition, he received $2,000 per month in rental income. Those findings alone demonstrate that the husband’s actual income exceeds $60,000 per year. Moreover, at one point during the trial, the husband testified that he actually received rental income in the amount of $2,200 per month and, in addition, earned a couple thousand dollars per year in unreported income from secondary employment.

Published on: August 1, 2014

Husband Seeks a Downward Modification of Child Support

by Stephen Bilkis

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 in August 28, 1985, the husband again sought to reduce his child support payments, this https://familylawyer.1800nynylaw.com/new-york-divorce-lawyer.htmltime in the Family Court of Nassau County, and the matter was referred to a Hearing Examiner.

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.