New York Family Law Blog

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 23, 2014

Court Decides Issue Related to Paternity 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 Custody Lawyer said 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 Westchester County Family Lawyer said 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 22, 2014

Mother Challenges Denial of Public Assistance

by Stephen Bilkis

A New York Family Lawyer said 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.

A New York Custody Lawyer said 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.

A Nassau County Family Lawyer said thereafter, 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 21, 2014

Court Decides if Wife is Entitled to Rental Income

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 Custody Lawyer said 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 Queens 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: July 20, 2014

Plaintiff Files Motion to Compel Child Support

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 Custody 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 Nassau Child Support 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 Long Island 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.