New York Family Law Blog

Published on: July 9, 2014

Court Decides an Equitable Estoppel Case

by Stephen Bilkis

A New York Family Lawyer said this matter was referred to this Court by a Support Magistrate for determination as to whether equitable estoppel may be invoked by the Respondent to prevent genetic testing in this paternity petition. Before setting forth the procedural history of this matter, the Court will list the parties involved to avoid confusion. The child at issue is born January 1, 1997 (ten years old). Petitioner is the mother of the child’s mother and is the child’s maternal grandmother. The mother is currently married to his husband. Respondent is the child’s alleged biological father.

A New York Custody Lawyer said that, on or about July 26, 2006, the Nassau County Department of Social Services, on behalf of petitioner mother, filed a petition requesting that an Order be made declaring respondent, the father of the subject child, and for an order of child support. The Court docket reflects that when the matter came before the Support Magistrate, the issue of equitable estoppel was raised. The Support Magistrate assigned a Law Guardian, to represent the subject child and the matter was adjourned for the Law Guardian to speak with the child. On the adjourned date, the Law Guardian informed the Support Magistrate that the child “knows” that the Respondent is her “biological” father, but calls another man “Daddy”. As a result, the matter was referred to this Court for inquiry into the issue of equitable estoppel.

A Nassau Guardianship Lawyer said that, this Court assigned a 18-b counsel to represent petitioner; and another 18-b counsel to represent the mother; and the Nassau County Legal Aid Society to represent the respondent, after conference with the parties, this Court established a schedule for the submission of papers on this issue, and the matter was set for reserved decision.

Published on: June 22, 2014

Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted that branch of the plaintiff’s motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney’s fee.

A New York Custody Lawyer said that the relevant facts are set forth in a related appeal. An appellate court should rarely modify a pendente lite award, and then ” only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires”. Further, pendente lite awards “should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living” “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored”. Here, in denying that branch of the defendant’s cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant’s actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court’s determination on this issue. Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of pendente lite child support.

The Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of an interim attorney’s fee.

Published on: June 21, 2014

Father Requests Downward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 17, 1993, which, after a nonjury trial, inter alia, (1) directed him to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years, (2) directed him to pay child support in the amount of $3,097 per month, and (3) awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries, and the plaintiff wife cross-appeals from so much of the same judgment as awarded her a money judgment in the amount of only $69,043.

A New York Custody Lawyer said that, in another child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated August 10, 2009, which denied his objections to an order of the same court dated June 9, 2009, which, after a hearing, denied his petition for a downward modification of his child support obligation.

A Suffolk County Family Lawyer said the issues in this case are whether the court erred in decreeing the defendant husband to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years; directed him to pay child support in the amount of $3,097 per month; and awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries; and whether defendant husband is entitled to modification of his child support obligation.

Published on: June 20, 2014

Court Decides if Wife’s Child Support Custody Should be Reduced

by Stephen Bilkis

A New York Family Lawyer said that, in three related proceedings, inter alia, for modification of child support and maintenance obligations, the petitioner husband appeals (1) from an order of the Family Court, Nassau County, entered December 20, 1988, which denied his objections to so much of an order of the same court, dated September 19, 1988, as dismissed his application to increase the wife’s child support obligation, (2) from an order of the Family Court, Nassau County, entered May 18, 1989, which denied his objections to an order of the same court, dated March 16, 1989, dismissing his application to reduce his maintenance obligation, and (3) as limited by his brief, from so much of an order of the Family Court, Nassau County, entered June 8, 1989, as denied his application to (a) vacate an income execution served on his employer, (b) adjudge the wife’s employer to be in contempt, and (c) vacate the order entered December 20, 1988.

A New York Child Custody Lawyer said that, the parties settled their divorce action on July 22, 1983, by entering into a stipulation which was incorporated in but did not merge with their judgment of. The stipulation provided for the wife, at that time a full-time homemaker, to be the custodial parent of the parties’ two children. The parties further agreed that their assets, including the marital residence, would be essentially split evenly, and that the husband would pay child support as well as $100 per week maintenance.

A Bronx Family Lawyer said that, the custody of both children was subsequently transferred to the father, and the wife obtained employment outside the home. Following the change in custody, in March 1987 the Supreme Court directed the wife to pay child support in the sum of $10 per week per child. Fifteen months later, the husband commenced a Family Court proceeding seeking upward modification of the wife’s support obligation. He then commenced a second proceeding seeking elimination of the maintenance obligation imposed by the stipulation of settlement, and a third proceeding, inter alia, to renew his application for increased child support. The Family Court denied him the relief sought, and these appeals ensued.

Published on: June 19, 2014

Petitioner Files Action to Adopt Son

by Stephen Bilkis

A New York Family Lawyer said a couple entered into a written separation agreement and was divorced by the decision of the Supreme Court. Subsequently, the woman married another man and moved into the man’s residence. The woman and her new husband filed a petition for the adoption of the woman’s son. It was alleged in the petition that the consent of the child’s father, the woman’s former husband, was not necessary because he abandoned the child.

A New York Child Custody Lawyer said the child’s father then moved for an order enforcing the visitation provisions of the separation agreement. The father’s order to show cause contained a term barring the woman from prohibiting visitation during the pendency of the case. The woman however moved for restriction and suspension of any visitation pending a determination of the adoption proceeding, seeking to hold the child’s father in contempt of court for failing to pay child support, seeking to consolidate the motion in Supreme Court with the adoption proceeding pending in Surrogate’s Court, and seeking an award of counsel fees.

A Brooklyn Family Lawyer said by order, the justice directed that the adoption proceeding in the Surrogate’s Court be consolidated with the proceedings in the Supreme Court. The matter was set for a trial as the submitted papers were complete with factual issues.

Published on: June 18, 2014

Complainant Files Action to Direct Sale of Real Property

by Stephen Bilkis

A New York Family Lawyer said complainant seeks a decision compelling and directing the sale of a real property owned by a couple. The complainant states that they brought an action against the couple to recover $24,371.56. The attorney further states that a decision was duly entered in the action in favor of them for $24,371.56. The attorney also asserts that the decision was duly filed and docketed in the office of the clerk and a balance of $31,793.88, to wit the original judgment plus interest remains unpaid.

The attorney stated all of the complainant’s attempts to collect the amount due. The attorney also asserted that the couple is the current owner of the real property, exceeding $50,000.00 in value with an assessed value of approximately $350,000.00 based upon information and belief.

The woman states, in an opposing affirmation, that she is the current owner of the subject property. The affidavit of the woman makes clear that no real marriage exists. The woman’s attorney stated that the man abandoned the woman and their child. The man left the marital residence and never returned without leaving a forwarding address. The woman’s attorney points out that the family doesn’t know where the man resides and don’t even received any support from the man. Further, the man currently owes the woman over $17,000.00 in child support arrears. The woman’s attorney also points out that the woman has child support problems with another relationship, and additional details about the man’s posture as a judgment debtor.

Published on: June 16, 2014

Wife Petitions for Share of Marital Residence

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered August 5, 1981, the plaintiff wife appeals from so much of an order of the Supreme Court, Nassau County, entered June 29, 1987, as denied that branch of her cross motion which was for the appointment of a receiver pursuant to Domestic Relations Law § 243, and the sequestration of the defendant husband’s equitable share of the net proceeds from the sale of the parties’ former marital residence, and the defendant cross-appeals from so much of the same order as granted the plaintiff counsel fees in the sum of $1,500.

A New York Custody Lawyer said the parties were married on August 24, 1968. There is one child of their marriage, born on May 17, 1977. On August 5, 1981, a Nassau Divorce Lawyer said that the plaintiff was granted a judgment of divorce. The judgment provided, inter alia, that the plaintiff would receive custody of the parties’ minor child and exclusive possession of the former marital residence. Furthermore, the judgment directed the defendant to pay to the plaintiff $75 per week child support. As a result of several proceedings in the Family Court in which the defendant sought a downward modification of the divorce judgment’s support provision and the plaintiff moved for an order enforcing the defendant’s support obligations, the support provision was reduced to $100 biweekly, payable through the Nassau County Department of Social Services Support Obligations Unit.

A Staten Island Family Lawyer said that, the Supreme Court, Nassau County, in an order dated February 18, 1986, directed that the former marital residence be sold and increased the defendant’s biweekly support payment to $160. In April 1986 the plaintiff moved for leave to enter judgment for support arrears and an order appointing her receiver and sequestrator of the defendant’s equitable interest in the former marital residence pursuant to Domestic Relations Law § 243. The Supreme Court, Nassau County, by order dated May 7, 1986, awarded the plaintiff arrears but denied that branch of her motion which was for sequestration and the appointment of a receiver.

Published on: June 14, 2014

Petitioner Files Paternity Petition

by Stephen Bilkis

A New York Family Lawyer said a man filed a paternity petition requesting that an order be made declaring him to be the father of a child.

The man and the mother were present at the trial and the documents reflect that the court already noted the paternity of the child. An acknowledgment was then produced which declared that another man was the father of the child. The court then appointed a law guardian to represent the child.

A New York Custody Lawyer said the other man stated that he raised the child for six years and the child calls him papa. The mother also told the child that he was his father.

Published on: June 13, 2014

Court Orders Respondent to Submit DNA for Paternity Testing

by Stephen Bilkis

A New York Family Lawyer said the matter before the Court is a motion brought by the Deputy Court Attorney’s Office, on behalf of the Nassau County Department of Social Services (DSS), seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual. The Deputy County Attorney then submitted reply papers, arguing neither the law guardian nor respondent have established that the child would be irreparably harmed if DNA testing was ordered.

A Nassau County Child support Attorney said that this matter was initiated when DSS filed a petition for paternity and support against respondent. The Presiding Magistrate referred the matter to the Court once the issue of equitable estoppel was raised.

A New York Child Custody Lawyer said the doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.

Published on: June 12, 2014

Petitioner Seeks Increase of Child Support Payments

by Stephen Bilkis

A York Family Lawyer said this is an action to recover the value of legal services provided to plaintiff’s client in connection with support proceedings wherein defendant was the named respondent. This matter appears before this Court upon the following stipulated facts.

A Nassau County Family Attorney said that in May 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties’ children. By Mexican decree, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

In January 1977, defendant’s former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant’s children.