Defendant Proposes to Dismiss Case Under DRL 230

August 27, 2014,

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.

The issue in this case is whether plaintiff fails to state a cause of action.

A New York City Family Lawyer said the Court said that, considering first Defendant's motion to dismiss, he wrongly asserts that this Court lacks subject matter jurisdiction in this action because of Plaintiff's alleged non-residence in New York. DRL §230(1.) provides, in pertinent part, that "an action for divorce may be maintained only when the parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding." Despite Defendant's contention to the contrary, a Plaintiffs noncompliance with DRL §230's residence requirement does not affect this Court's subject matter jurisdiction. Rather, such residence requirement is merely an element of Plaintiff's divorce action, an element which she must plead and prove.

A Manhattan Family Lawyer said that although Defendant failed to specify the CPLR §3211 ground for his motion to dismiss, because Defendant's motion challenges an element of Plaintiff's divorce action, as per the above, it seeks dismissal for Plaintiff's alleged "failure to state a cause of action." When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference. Additionally, because of the above burden, a CPLR §3211(a)(7) motion is premature before Plaintiff files and serves her complaint.
Here, because Plaintiff has not filed and served a complaint, Defendant's motion to dismiss is premature. On this record it is uncontested that Plaintiff commenced this action with a summons with notice. Neither party alleges service of a complaint or attaches a copy of Plaintiff's complaint to their papers. As such, "because a complaint has not been served, this court has no factual allegation to review so as to permit it to determine whether plaintiff has any cognizable causes of action motion to dismiss pursuant to CPLR § 3211 is pre-mature."

In view of the fact that a portion of the remaining motion of the Plaintiff mother concerns the children, this Court, in an exercise of discretion, will appoint an Attorney for the Children. Counsels are to immediately to provide that Attorney with a complete copy of motion papers for both parties. Upon receipt of those motion papers, the Attorney for the Children will have thirty (30) days to file and serve any affidavit or documentation in respect to the position of his clients concerning the motions which apply to the children.

Accordingly, Defendant's motion to dismiss is denied.

The rule is that, an action for divorce may be maintained only when the parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding. If you wish to file a divorce seek for the representation of a Nassau Divorce Attorney or Nassau Family Attorney at Stephen Bilkis and Associates. Call us for free consultation.

Court Looks at Whether Respondent may be Subject of a Summary Licensee Proceeding

August 5, 2014,

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.

A Queens Family Lawyer said that, in this proceeding, petitioner commenced a summary proceeding against his ex-domestic partner, respondent, and a certain person. The persons referred to in the petition are the minor, out-of-wedlock, children of the petitioner and respondent. The petitioner seeks to evict the respondent and their minor children from the premises, known as Pine brook Avenue, West Hempstead, New York 11552. The petitioner's position is that the respondent, his ex-domestic partner, with whom he cohabited in the subject premises, is a "licensee," and the license has now been revoked. The petitioner claims that the Court has jurisdiction to issue a warrant of eviction to have the respondent and their minor children removed from possession of the subject premises.

A Long Island Family Lawyer said that, the respondent raises three defenses to this proceeding. First, she claims as the ex-domestic partner of the petitioner that there are sufficient implied and actual equitable and legal issues to be resolved by the dissolution of this domestic partnership to deny this Court from having jurisdiction to evict her as a "licensee." Second, she claims that there is a derivative relationship with the petitioner (by residing in the family home with their minor children) which would deny this Court from having jurisdiction to evict her. Third, the Court should abstain from exercising its jurisdiction in this proceeding in the interests of judicial efficiency, as it would be better to have the dissolution of the family litigated in a forum which can best protect the interests of the parties and particularly the children of this domestic partnership.

The novel issue presented by this proceeding is whether the respondent, an ex-domestic partner of the petitioner, and the two minor children of the petitioner and respondent may be the subject of a summary "licensee" proceeding, pursuant to RPAPL 713 (7).

In order for this Court to have subject matter jurisdiction, there must be statutory authority permitting the petitioner to bring this summary proceeding. "It is well settled that summary proceedings are creations of statute and that, therefore, there must be strict adherence to the governing statutory provisions". The Nassau County District Court has jurisdiction of summary proceedings to recover possession of real property located in whole or in part within a district of the court in the County of Nassau, to remove tenants therefrom, and to render judgment for rent due without regard to amount (UDCA 204; RPAPL 701). RPAPL 713 sets forth the grounds for summary proceedings where no landlord-tenant relationship exists between the parties.
A special proceeding may be maintained after a ten-day notice to quit has been served upon the respondent upon the grounds that he is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property" (RPAPL 713 [7]). "As generally understood in the law of real property, a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, non-assignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege".
Accordingly, this Court finds that the respondent is a "licensee" and the Nassau County District Court does have subject matter jurisdiction over the proceeding.
The Court rejects the respondent's first defense. Although RPAPL 743 provides that an answer in a summary proceeding may contain "any legal or equitable defense," the respondent's equitable defense that this Court does not have jurisdiction to evict her upon the ground that she is not a "licensee," because of her status as a "domestic partner," is simply without merit.
The law is clear that if the respondent's status was that of a "wife" she would not be considered the mere "licensee" of her husband and could not be evicted under RPAPL 713 (7). The occupation of a marital home by a wife is not possession existing by virtue of the permission of her husband. Her possession of the premises exists because of special rights incidental to the marriage contract and relationship. As long as the marriage relationship stands, unabridged by court decree or valid agreement between the parties, the husband has the obligation by virtue thereof to support and maintain his wife. In the instant case, however, the respondent is not cloaked with the status of "wife."
The respondent's first defense is largely based upon a decision of the Civil Court of the City of New York, Bronx County, in 1987 case decision. The Civil Court found that it did not have subject matter jurisdiction to evict a former cohabitant, in that the former cohabitant was not considered a "licensee." This Court disagrees with the Civil Court's decision and is bound by the Court of Appeals. The Court of Appeals has clearly held that "cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation". Moreover, the New York State Legislature has not sought fit to enact statutes to protect the property rights of "domestic partners." In fact, the New York State Legislature has made it clear that it will not permit common-law marriages to be established in New York. Common-law marriages were abolished in New York State on April 29, 1933, as a result of a legislative amendment to section 11 of the Domestic Relations Law. Accordingly, the respondent cannot claim to be protected by rights bestowed a common-law marriage. The rights and obligations that are bestowed a legal marriage or a common-law marriage does not arise in New York State, when parties choose to cohabit.
The respondent's second defense that this Court does not have jurisdiction to evict her because she resides in the "family" home with the petitioner's minor children is also denied. The interchanging of the respondent's status from "domestic partner" to "mother of the petitioner's children" does not alter the analysis outlined above.
The respondent contends that even if the Nassau County District Court has jurisdiction over the instant proceeding that the District Court should abstain from exercising its jurisdiction in the interest of judicial efficiency. The respondent claims that the dissolution of the family should be litigated in one forum, which can best protect the interests of the parties. The respondent's defense is without merit.
The respondent, in her memorandum of law, cited lower court cases in which the lower courts, when dealing with the issue of possessory rights, transferred the case to a court of general jurisdiction. Those cases cited by respondent involved marital discord and were adjudicated in the New York City Civil Court. This proceeding does not involve a marital relation and the Nassau District Court does not have the power to transfer cases. A court may also stay its own proceedings in a proper case upon such terms as may be just (CPLR 2201). A motion to stay a proceeding is primarily addressed to the discretion of the court. In the instant proceeding, however, a stay of the determination of the merits of this summary proceeding is not warranted.
In Nassau County, the jurisdiction to determine support of minor children is conferred upon the Family Court and the Supreme Court. The Family Court, however, does not have jurisdiction to determine the possessory rights of real property (RPAPL 701). The Nassau County District Court, a court of limited jurisdiction, does not possess authority to determine support and custody of minor children, but does have jurisdiction to determine the possessory rights of real property (UDCA 204; RPAPL 701). Accordingly, the respondent's argument that the order of protection issued by the Family Court granted the respondent possessory rights in the premises at issue is misguided. Moreover, any argument by the respondent that a determination by this Court of the possessory rights of the premises will be in conflict with any determination by the Family Court on matters of support and custody is equally without merit. The respondent's possessory rights in the premises at issue are not inextricably intertwined with the support and custody of the parties' minor children. This Court can make a determination of possession without causing a conflict with the Family Court.
In view of the foregoing, the Court finds that the respondent is a "licensee" and that such license has been revoked. The respondent entered the premises by express permission of the petitioner, the owner of the premises, under a personal revocable privilege. The respondent did not possess any interest in the property, and the petitioner has, by written notice, revoked his permission and consent.
While the question of whether a "wife" can be evicted by summary proceeding has long been settled, the eviction of another member of the nuclear family, such as "children," is far from clear. Arguably, the petitioner's children could be classified as "licensees." However, while the petitioner has no legal obligation to support the respondent, he does have legal obligation to support his children. It is a matter of fundamental policy that the parent of a minor child is responsible for support of the minor child until the child obtains the age of 21 years. The statutes regarding marital children and non-marital children are analogous, in that both statutory schemes call for parental support of children in a fair and reasonable sum, according to the parents' respective means. The maintenance of a home being a basic and necessary element of support raises a question of whether the minor children of the petitioner are mere "licensees." The minor children's possession of the premises exists because of special rights incidental to the parent child relationship and a parent's responsibility to support his minor children.
Accordingly, this Court finds that the petitioner's minor children do not constitute "licensees," pursuant to RPAPL 713 (7), and the proceeding against the minor child is hereby dismissed. The dismissal of the proceeding against the minor children does not alter the result against the respondent. The minor children were not necessary parties to this proceeding.
While the petitioner has no legal obligation to support the respondent, he does have legal obligation to support his children. It is a matter of fundamental policy that the parent of a minor child is responsible for support of the minor child until the child obtains the age of 21 years. If you are involved in a similar case, seek the assistance of a Nassau Child Support Attorney or Nassau Order of Protection Attorney at Stephen Bilkis and Associates. Call us.

Defendant Claims Lack of Subject Matter Jurisdiction

August 4, 2014,

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.

A Staten Island Family Lawyer said the Court in deciding the case said that, it will be helpful first to state the general nature of the several remedies available in the case of defaulting husband and fathers. There are civil proceedings. The essential purpose of such proceedings is to provide for the future rather than punish for the past. In this category are proceedings in the Children's Court and proceedings in the Supreme Court incidental to annulment, divorce and separation actions.

The second category comprises criminal proceedings on charges of misdemeanor or felony under the Penal Law. The purpose of these proceedings is to punish for past conduct. The proceeding under Section 899 of the Code of Criminal Procedure is a hybrid--partly civil, partly criminal. It is an archaic proceeding originating in antiquity. The categories of disorderly persons are substantially the same as they were a century ago. By contrast with the modern remedy provided in the Children's Court Act, it is cumbersome in prosecution and rigid and unsatisfactory in enforcement. In the year 1903, Supreme Court Justice said the antiquity of the statute was probably all that saved it from unconstitutionality.

Section 30 of the Children's Court Act provides: 'In addition to the powers prescribed by section 6 of this chapter, the children's court shall have: 1. Jurisdiction within the county to hear and determine all proceedings to compel the child support of a minor child; step-child ; wife, if pregnant, or if the support of her minor child or step-child is involved; or minor poor relative'.
It is evident that the grant of exclusive jurisdiction of enumerated support proceedings to the Children's Court did not oust the criminal courts of jurisdiction of cases essentially criminal in nature, i. e., misdemeanors and felonies predicated in part on neglect of a father to provide for his family. The proceeding under Section 899 of the Code comes in two parts. The magistrate must first be satisfied by confession or testimony that the defendant has neglected to provide for the wife or child. He may then require the defendant to post a bond to secure future weekly payments. While criminal in form, the proceeding, up to this point is, in essence, civil. It has a purpose identical with the children's court support proceeding: to provide for the future rather than punish for the past. This conclusion is reinforced by the statutory requirement that the defendant be discharged if the bond is furnished.

The proceeding changes character if the bond is not filed. Only then can the defendant be punished by conviction and sentence as a disorderly person. The split nature of the proceeding is paralleled by the procedure whereby a person violating an order of support of the Children's Court may be punished in a criminal court under Section 482 of the Penal Law. The jurisdiction of the Nassau County District Court in the first phase of a proceeding under Section 899 of the Code clearly embraces the identical subject matter that is the exclusive domain of the Children's Court, namely, an inquiry and adjudication to secure future support. The second phase of the proceeding becomes an obsolete appendage replaced by the broad enforcement powers conferred on the Children's Court by article III-A of the Children's Court Act.

The legislative intent to carve out the obsolete magistrate's jurisdiction under Section 899 of the Code and replace it with the modern Children's Court procedure is apparent from the history of the Domestic Relations Court Act of New York City. The Children's Court Act differs in some specific matters from the Domestic Relations Court Act of New York City, but it generally parallels the latter act in relation to support proceedings. Prior to the formation of the Family Court Division of the Domestic Relations Court, there had been a Family Court Division in the Magistrates' Courts of New York City. Upon the formation of the Family Court Division of the Domestic Relations Court, all cases formerly dealt with by the Family Court Division of the Magistrate's Court were transferred to the new court.

The Magistrate's Court of the City of New York no longer has jurisdiction of support proceedings under Section 899 of the Code. Exclusive jurisdiction of such matters is vested in the Domestic Relations Court. The only jurisdiction that the Nassau county District Court could assert in support proceedings is the jurisdiction under Section 899 of the Code. Section 234 of the Nassau County District Court Act, expressly provides that nothing in that act shall be construed to confer upon the District Court jurisdiction of proceedings of which the Children's Court has jurisdiction.

Accordingly, the court held that the Nassau County District Court has no jurisdiction over support proceedings within the categories set forth in the Children's Court Act. The information is dismissed for lack of jurisdiction.

If the court has no jurisdiction over a child support claim, seek for the legal advice of a Nassau Child Support Attorney and Nassau Family Attorney in order to know how you can dismiss the claim. Call us at Stephen Bilkis and Associates.

Wife Seeks Annullment of Marriage

August 3, 2014,

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."

A Westchester County Family Lawyer said that, following the commencement of the Nevada action but prior to its Decree of Annulment, the Mother also commenced the instant action against the Father to declare the nullity of a void marriage on October 26, 2005, in Nassau County Supreme Court, seeking the annulment of the marriage, necessaries for the living expenses of the parties' child, and recovery of chattel, to wit: a 2004 Nissan Sentra automobile. This Court scheduled a preliminary conference on this matter, and the parties declined to enter into a discovery schedule due to the pendency of the Family Court proceedings. There was an agreement to the continuation of child support by the Father, who, in the interim, also returned the Nissan automobile to the Mother. Simultaneously with this action, there are two contentious custody proceedings currently pending against the Mother in Nassau County Family Court, with involvements by the child service and a Law Guardian. A Nassau Child Custody Lawyer said that, on November 15, 2005, the Mother's former husband commenced a custody proceeding against her in Family Court, seeking to modify the joint custody Agreement between the parties to sole custody to him of their infant. On November 18, 2005, the Father also commenced a custody and visitation proceeding against the Mother in Family Court, raising similar allegations of maternal unfitness as herein. Those proceedings are currently subjudice with an appearance scheduled for the week of February 27, 2006.

A Suffolk County Family Lawyer said that, by Order to Show Cause returnable December 13, 2005, the Mother moves for an order: (1) consolidating the Family Court support proceedings with this action; (2) granting her custody of the parties' child; (3) awarding her child support and the proportionate share of child related expenses pursuant to the Child Support Standards Act; and (4) directing the Father to immediately return her Nissan automobile. The Mother argues that the Supreme Court is the proper venue to air the issues of custody and necessaries, and that she should be the child’s custodian because, among other things, the Father has a history of mental illnesses, drug and gambling addictions incompatible with the best interests of the child.

A Nassau Visitation Lawyer said that, in opposition to the motion, the Father argues that it is the Mother who is an inappropriate custodian suffering from alcoholism, bipolar disorder and parenting failures, and cross-moves, by Notice of Cross Motion, for an order, inter alia, dismissing this proceeding outright in favor of a reference and consolidation with the Family Court's custody proceedings currently pending between these parties and the Barnett family, on the grounds that they involve similar factual and legal issues as well as parties and witnesses.

The issue in this case is whether the Mother should be granted custody of their child as well as child support.

The Court said that, it is well settled that the Supreme Court enjoys a constitutionally as well as statutorily guaranteed concurrent jurisdiction over any matter within the jurisdiction of the Family Court. It is for that reason that referrals from Supreme Court to Family Court of ancillary issues are appropriate under certain circumstances. Specifically, Family Court Act § 115(b) provides that the family court has jurisdiction "over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the Supreme Court." That court also has exclusive original jurisdiction over the support of children born out-of-wedlock, as here.

Applying these principles to the matter at bar, the Father has sufficiently established that a referral of this proceeding to the Family Court is warranted. It should be initially noted that the Mother does not challenge the existence and validity of the Nevada Decree of Annulment of November, 2005, which declared the nullity of the parties' marriage and its retention of jurisdiction regarding property issues. In light of that Decree, this Court does not appear to be the proper forum to raise any issues of marriage, necessaries or distribution of property between the now unmarried parties. Nor should this Court be involved in litigation over the custody and support of her children when there is custody proceedings currently pending in Family Court, a court uniquely equipped to deal with the serious and myriad of issues presented by the Father against the Mother. The matters should not be heard in different fora at the whim of the Mother.

Moreover, the Family Court is fully familiar with these parties as a result of the pendency of the other custody proceeding between the Mother and the former husband which involves the subject child's half-brother, who lives with the Mother and the subject child. Were this matter not transferred, there would basically be two trials with the same parties, same witnesses, same attorneys cross-examining, possibly the same Law Guardian, and the same workers being questioned. Since the Mother may obtain full redress of her custody and support rights in Family Court, judicial economy, the best interests of the child, and the convenience of the parties and witnesses shall be better served by a referral to Family Court.

Accordingly, the Mother's motion is hereby referred to the Family Court, and the Father's cross-motion is granted in part and also referred insofar as it seeks custody and support of the parties' child. The remaining causes of action are hereby dismissed without prejudice to reinstitution in the proper forum. The Mother's attorney shall file a copy of this referral order with the Clerk of the Nassau County Family Court within ten days from the date below. The Nassau County Matrimonial Clerk shall forthwith transmit all papers, documents and minutes, exchanged and filed by the parties in this proceeding, to the Family Court with this referral order. This constitutes the decision, order and judgment of the Court.

In choosing where to give the child’s custody, the best interest of the child shall be considered. To win the child’s custody, you will need the representation of a Nassau Child Custody Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.

Court Discusses Interim Custody Agreement

August 2, 2014,

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.

A Brooklyn Family Lawyer said in light of the evidence in the record that the husband's actual income exceeds $50,000 per year, the matter is remitted to the Supreme Court for a new determination of the amount of income to be imputed to the husband and, thereafter, a recalculation of his child support obligation. Moreover, since the husband's share of all child care, unreimbursed, non-elective medical, psychiatric, and dental expenses for the children, as provided for in the judgment appealed from, is based on his pro rata share of the total child support obligation, the matter is also remitted to the Supreme Court for a recalculation of his share of those expenses.

Moreover, the matter is remitted to the Supreme Court for a new determination as to whether the wife is entitled to equitable distribution of the rental income generated by the home during the 40-month period when the husband had exclusive occupancy pursuant to the July 2002 pendente lite order. Real property conveyed to a husband and wife creates a tenancy by the entirety, and each cotenant to a tenancy by the entirety is entitled to one half of the rents and profits generated by the jointly owned real estate.

Here, the Supreme Court based its determination that the wife was not entitled to equitable distribution of the rental income generated during the relevant time period upon its finding that the husband had custody of the parties' children and that the wife failed to pay child support during that time, and its finding that the expenses in maintaining the house are not limited to the mortgage and taxes, as the wife well knows. However, the pendente lite order, as amended, entitled the wife to offset her monthly child support obligation of $75 against the husband's monthly maintenance obligation of $125. Since the husband failed to make any maintenance payments pursuant to that order, the wife's failure to make child support payments did not entitle the husband to a credit against any rental income from the home to which the wife was otherwise entitled.

Moreover, although the Supreme Court appears to have concluded that the husband was entitled to a credit against the wife's share of the rental income based upon his payment of certain carrying charges, it failed to make any findings as to what portions of those carrying charges, if any, were paid by the tenants at the home, set forth any calculations to demonstrate that the amount of those carrying charges paid by the husband completely offset the wife's entitlement to rental income, or determine how much of the carrying charges should have been applied to the living expenses of the husband and the children, which should not be chargeable to the wife, as opposed to the amount attributable to the tenants. The parties' remaining contentions are without merit.

Couples who separate would end up fighting who should provide more and who should receive more. If you want to make sure that you have a fair chance in your legal dispute, consult the Nassau County Family Lawyer or the Nassau County Divorce Attorney. You can also speak with the Nassau County Child Support Lawyer from Stephen Bilkis and Associates during business hours.

Court Decides Whether Child Support is Warranted

August 2, 2014,

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.

A Nassau Divorce Lawyer said that, respondent-appellant argues that evidence of the petitioner taken in Florida was improperly admitted without according him the right of cross examination. The Children's Court followed the procedure permitted by Domestic Relations Law, § 37, subdivisions 6, 7 and 8; respondent-appellant made no application for interrogatories, as provided by subdivision 9 of that section; and even on his own testimony an order for the child’s support would have been warranted. The only real dispute was as to the wife's reason for going to Florida; and on that issue the respective contentions were before the court.

The issue in this case is whether the petitioner is entitled to child support.

In this Court's opinion, there was no error in the reception of the evidence of which complaint is now made. The mother has no doubt deprived the father of any substantial power of visitation. This, as shown by the cases relied upon by the appellant, might induce the Court to refuse to punish the husband for contempt in failing to comply with an order for the payment of alimony in a matrimonial action; or it might deprive the wife of a right to enforce monetary provisions of a separation agreement. It does not, however, constitute a defense in a proceeding under the Uniform Support of Dependents Law, a basic assumption of which is that a father is responsible for the support of his dependent children, regardless of the acts of the mother. Perhaps a case may be imagined where a mother would be so contemptuous of the orders of a court as to justify a refusal to make an order under the Uniform Support Act; but this is not such a case. This mother had custody of the child awarded to her and the father was directed to pay for the child’s support the sum named in the orders appealed from, all by a judgment of the Supreme Court, Queens County never modified. The amount named in the order is large for this child’s age, but there is some proof that the child was ill and required medical care; and no reason appears in the record for decreasing the amount, which is well within the father's means to pay. While representing himself, he expressed his willingness to contribute to the child’s support, seeking only an assurance of right to visit the child, which the courts of this State can no longer effect that does not absolve him from his duty.

As to the order for the support of the wife, the court reaches a different conclusion. This order has been, for the future, vacated and was in effect for only about two months. Although no appeal was taken from the order, there was a substantial showing on the motion to vacate that the mother had been, to say the least, less than frank with the court. Although urging that she was dependent on the husband, she had maintained herself in some fashion in Miami for the better part of a year; almost immediately after the order for her support was made, the husband was served with process in a Florida divorce action; and within some two months, the wife had secured a judgment of divorce and had remarried. In this Court's opinion, the showing of fact upon the motion to vacate in that respect the order of January 17, 1961 was so strong that it compels the finding that the wife was not in fact dependent on the husband, and the order directing support for her should have been altogether vacated.

Accordingly, the court held that the orders of the Children's Court of Nassau County, from which this appeal is taken, will be modified to provide that the direction to make payments for the support of the wife shall be altogether vacated, and in all other respects such orders are affirmed. If payments have been transmitted to the wife for her personal support, the respondent-appellant should be credited with them against payments for the support of the child. The motion for a stay is denied. None of the grounds urged in support thereof are sustained.

The fact that the father has been divested of visitation rights on his child does not absolve him from his duty to provide child support. Seek the legal advice of a Nassau Child Support Attorney and Nassau Visitation Attorney to know the legal remedies that you may avail to impose child support order. Call us at Stephen Bilkis and Associates.

Husband Seeks a Downward Modification of Child Support

August 1, 2014,

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 http://http://familylawyer.1800nynylaw.com/new-york-divorce-lawyer.htmltime in the Family Court of Nassau County, and the matter was referred to a Hearing Examiner.

A Staten Island Family Lawyer said that although the Hearing Examiner explicitly acknowledged that she had no authority to review the change of financial circumstances prior to the May 30, 1985, stipulation was entered in Nassau County Supreme Court, she nonetheless permitted testimony to be adduced at the hearing that the wife's income had substantially increased from $3,000 in 1983, to $23,000 in 1985, whereas the husband's income had decreased from $33,000 in 1982 to $16,255 in 1985. Based upon these figures, including the period prior to the date of the stipulation, an order dated November 26, 1985, was entered March 7, 1986, in the Family Court, Nassau County, reducing the husband's child support obligations from $750 per month to $70 per week. In an order of the same court, the petitioner's objections were denied and the Hearing Examiner's order was continued based upon an evaluation of the parties' changed financial circumstances from the period from 1983 to 1985. It is reversed.

A Queens Family Lawyer said that although the terms of a separation agreement may be modified upon a showing of a change in the financial circumstances of the parties together with the changing needs of the, it is well established that in reviewing the changed financial status of the parties, the courts may only consider changes from the date of the last petition for modification. Prior to the instant application dated August 28, 1985, for a downward modification of child support, the respondent made an earlier application in February 1985 in the Nassau County Supreme Court to determine the propriety of the support provisions. Both the husband's downward modification application and the wife's motion for enforcement were heard together, and both were settled by the stipulation dated May 30, 1985, in the Nassau County Supreme Court. The stipulation settled the husband's application for downward modification of child support for the period up to and including May 30, 1985. When the husband applied to the Family Court on August 28, 1985, for downward modification, the Hearing Examiner apparently failed to consider the consequences of the May 30, 1985, stipulation and decided the application based on evidence of the parties' financial status prior to May 30, 1985. Since the husband's application for downward modification had been previously resolved by the May 30, 1985, stipulation, he was collaterally estopped from re-litigating the issue, and the Family Court was obligated to limit itself to an evaluation of the change of the financial circumstances of the parties subsequent to the May 30, 1985, stipulation.

Losing custody of your children does not mean the right to neglect your obligation towards them. If your partner denies you and your children of the rightful child support, ask the Nassau County Family Lawyer together with the Nassau County Child Support Attorney to represent you in court. Stephen Bilkis and Associates can also offer the services of the Nassau County Child Custody Lawyer and the Nassau County Spousal Support Attorney if you need one.

Public Assistance Denied to Pregnant Minor

July 31, 2014,

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.

A Westchester County Family Lawyer said at the outset it is noted that the pleadings as framed do not seek class action relief, nor does the Court make its determination as a class action, but only on the basis of the individual relief sought in the petition.
The Aid to Families with Dependent Children (AFDC) program is established pursuant to the Social Security Act. The program is designed to provide financial assistance to needy, dependent children and the parents or caretakers who live with and care for them. While states are not required to establish an AFDC program authorized by the Social Security Act, if they elect to do so, they must abide by the federal requirements as set forth in the Act and the implementing regulations.

A Suffolk County Family Lawyer said that the Court finds that mother, a married minor, was improperly denied eligibility for assistance for herself and her intrauterine child on the grounds that her parents were responsible for her child support. In that the petitioner mother is married, she is considered as being emancipated. The mother is separated from her husband and temporarily residing with her parents. The fair hearing failed to elicit information as to her income or financial resources, if any. Nor did the Department of Social Services apparently follow up the disclosure that the Family Court had made provisions for payment of child support by the husband. The parent's income is of no consequence in this matter even if it could be assumed there was an obligation to support the mother, their daughter, there is no such obligation for the unborn child. However, the Court recognized that many states do have plans which provide aid to unborn children. The states in accordance therewith have the option of including unborn children within their plan. New York States is one of those states which have exercised the option to include unborn children in its state plan.
There is no question that the mother was pregnant for a period longer than four months and that in the interim she has given birth to a son. As a result, she at the least would have been eligible for public assistance as grantee for her unborn child regardless of whether she herself was eligible for assistance since, as noted above, the Legislature of the State of New York has so provided.

Finally, the question as to the administrative letter must be addressed. The letter categorically establishes eligibility at the time pregnancy is medically verified provided there is a deprivation factor.

A woman, pregnant out-of-wedlock and not living with the alleged father of the unborn child, would be categorically eligible for ADC when the pregnancy is medically verified. The deprivation factor is continued absence of the father.

The medically verified pregnancy of the wife does not constitute a deprivation factor until the fourth month of pregnancy. A woman is considered, for the purposes of ADC, to be incapacitated from the fourth month of medically verified pregnancy until twelve (12) weeks after delivery or until pregnancy is otherwise terminated. ADC categorical eligibility exists from the fourth month of the medically verified pregnancy. To this point the Court observes it is a strange paradox that a woman pregnant out-of-wedlock apparently has superior parental rights to a married woman whose husband has left her to her own resources where all other factors are the same. However, the administrative letter noted above continues to make an even greater distinction. The administrative letter further states that although an unborn child is included in the public assistance case count and the household is considered to be increased by one (1) from the fourth month of pregnancy which has been medically verified, the unborn child has no needs independent of the mother.

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. There are, therefore, no needs to be met under a public assistance program. For example, parents of a pregnant daughter are meeting all of the daughter's needs. An application for public assistance for the unborn child would be denied since the unborn child has no needs apart from the mother and the mother's needs are being met.

The instant matter is squarely on point with the illustration cited in the administrative letter to a certain point. Here, the daughter and the mother, resides with her parents. However, she is a married woman and is, therefore, emancipated. There is no requirement for her parents to support her or her unborn child. The letter is an attempt to change legislation enacted by the New York State Legislature. The proper function of an administrative rule or letter is to implement, not amend a statute. Furthermore, there is no testimony or other showing in the fair hearing minutes that the mother’s emancipation was considered, or that her husband was obligated to support her, and that he did in fact do so. Nor was there any investigation into the claim that her medical expenses due to for each pregnancy were in fact due and unpaid.
Furthermore, it has been called to the attention of the Court that, subsequent to the petition, the hospital expenses attending the delivery of the child have been paid by another county Department of Social Services.

Accordingly, it is the finding of the Court, in concurrence with the statutes, regulations and cases cited that the holding in the fair hearing determination must be reversed and that medical and financial assistance should have been granted to the mother as grantee for her unborn infant from the fourth month of pregnancy until the commencement of the period covered by the County Department of Social Services; that a further investigation as to the mother's income sources, if any, is necessary to determine her eligibility for assistance and granted if appropriate.

Though it is the government’s duty to make sure that every citizen is fairly provided for, it is also our individual obligation to provide for ourselves and for our children. Nine months of being pregnant is more than enough to plan and prepare. If you think that you need support, speak with the Nassau County Child Support Lawyer or the Nassau County Family Attorney from Stephen Bilkis and Associates. A Nassau County Child Custody Lawyer can help you in your legal actions in case you need them.

Court Discusses Right to Counsel in Civil Proceeding

July 30, 2014,

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.

A Nassau County Family Lawyer said that the father contends on several grounds that the Children's Court was not a court of competent jurisdiction within the meaning of the above USDL provision on out-of-wedlock children, and that its adjudication therefore does not establish his present liability for child support.

The argument that the father was, at the time of the 1962 hearing in Nassau County, then residing in Bronx County, having moved there from Nassau three days before, does not warrant extended discussion. The father had been personally served 13 days before the hearing in Nassau County, where he was then residing and domiciled; and it is clear that the Court's jurisdiction thus acquired over him was not terminated by his departure from the County.

Further, although he was not represented by an attorney, his appearance without raising the issue of his change of residence to another County in New York State, waived any possible objection on this ground, for it does not relate to any basic right or element of the cause of action.

The next question relating to the 1962 proceedings is whether the Court lacked jurisdiction as to the older child, born in 1958, because of a time limitation on paternity actions. The USDL contains no limitation provisions. However, in 1962, as at present, New York's limitation was that proceedings to establish the paternity of the child shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been acknowledged by the father in writing or by furnishing support.

At the outset, the difference in result under the USDL paternity section and the New York provision must be noted. The USDL permits the court to base an adjudication on the father’s acknowledgment of paternity in open court, regardless of the lapse of time since the child's birth; under the New York provision--if given the construction that seems required (described above)--the court cannot even entertain a paternity petition more than two years after the child's birth unless the petitioner shows that there has been an acknowledgment.

This restriction would be even more unfortunate for out-of-state petitioners than in-state (though the statute is badly in need of amendment for the latter as well). For the USDL omits the New York provision for proof of acknowledgment of an out-of-wedlock child by any writing or by furnishing child support, nor does it allow a determination of paternity on the basis of evidence as to sexual relations, etc., as is permissible in instate proceedings. These differences between USDL and local proceedings are unavoidable; to elicit evidence on such issues on an ex parte basis, without confrontation and cross-examination, might well be both unwieldy and unfair.
The opportunity in USDL proceedings for adjudication on the basis of an acknowledgment in open court, regardless of the age of the child, is at least some compensation for the other disadvantages suffered by out-of-state illegitimate children in securing child support.

Since the USDL calls for a free and open acknowledgment, rather than any taking of evidence, the omission of a time limitation works no unfairness to the respondents. Thus the USDL provision is well-adapted to the exigencies of securing support for out-of-wedlock children from out-of-state fathers, and its efficacy must not be defeated by the injection of a State limitation period.

The law of the forum undoubtedly controls any matters of procedure that the USDL fails to cover. However, even if the New York provision were to be construed as a defensive statute of limitations and as a matter of procedure rather than substance, it must be held inapplicable in USDL proceedings; for the general rule as to use of State procedure must be subordinated to effectuation of USDL's specific and well-tailored paternity provision.

While the major recent developments in the constitutional right to counsel have related to criminal rather than civil proceedings, the right of those unable to afford counsel to assigned attorneys has also been recognized to some extent when the proceeding, though civil, has especially grave consequences. Since a paternity adjudication has effects over and above the usual civil proceedings, the Court believes that due process requires assignment of counsel in paternity proceedings in situations of particularized need, though neither abstract justice nor practical experience argues for a rule of routine assignment. However, the Court concludes that no such particularized need existed.

It is clear from the remainder of the hearing that the father was at all times fully aware of its purpose and effect, nor is there any indication whatsoever of any issue on which he either was, or felt, in need of counsel. His ready acknowledgment of paternity was obviously based on the fact that he had never doubted it, having lived with the children’s mother, as he testified, like a wife for a considerable period, and on his hope that she and his children would return to him.
Further, the father had at least a modicum of sophistication in the matter of matrimonial litigation and financial concerns. Under the circumstances of this case there is no basis for a conclusion that the 1962 proceedings violated due process because he was unrepresented or because the Court failed to offer to assign counsel if he was unable to retain an attorney.
The present petition must be granted even apart from the binding force of the 1962 adjudication, because of the father's acknowledgment of paternity in open court during the 1962 proceeding. The USDL provision for support of out-of-wedlock children must be interpreted and applied with fairness towards the father, but at the same time with the objective of removing so far as possible the obstacles to equal treatment of the illegitimate with the legitimate child. The father's motion for dismissal of the petition is denied.

If your partner denied your children not just of support but of paternity, you can seek the legal help of the Nassau County Family Lawyer together with the Nassau County Child Support Attorney. Stephen Bilkis and Associates can also provide you with the Nassau County Spousal Support Lawyer to help you fight for you and your children’s rights.

Court Discusses Concept of Equitable Estoppel

July 29, 2014,

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.

A New York Divorce Lawyer said the Law Guardian filed an affirmation arguing against genetic testing. On or about February 6, 2007, the man filed an affirmation in opposition to the petitioner woman's motion to preclude genetic testing. The woman filed a reply affidavit.
The doctrine of equitable estoppel is invoked to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.

A Long Island Family Lawyer said the Family Court Act provides that in a paternity matter, the court may not order genetic testing where the court has issued a written finding that it is not in the best interests of the child on the basis of equitable estoppels (prevents someone from arguing).

A Queens Family Lawyer said the paramount concern in an equitable estoppel case is the best interests of the children. The evidence should be construed from the child's perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child's interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect the testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered.

Equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to genetic testing. However, the moving party bears the burden to show by clear and convincing evidence that he/she is entitled to invoke the doctrine of equitable estoppel.
The petitioner woman is requesting that the Family Court issue an order estopping genetic testing. The woman's moving papers allege that the man resided with her and the children between 1997 and 2004 when the man was thrown out of the home by the woman due to his disorderly conduct; the man was present at the hospital when each child was born; the man spent the last two Christmases with the children; although the man would not execute acknowledgments of paternity for the children, he is their biological father; the man has always held himself out to be the children's father; no other man has been in the children's lives; the man objects to being adjudicated the father because he does not want to pay child support; and the children would be devastated if told the man is not their biological father.

The woman must submit evidentiary proof in admissible form, in order to set forth, legitimately, her entitlement to the relief she seeks. If the woman fails to make a legitimate showing of her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied. When the moving party does not make such a legitimate showing, he/she is not entitled to a hearing.
The Family Court is not convinced by the woman's arguments that she is entitled to invoke the doctrine of equitable estoppel. Her unsubstantiated allegations and mere conclusions do not make a legitimate showing that equitable estoppel applies. She has not sufficiently pleaded the required elements of estoppel, which are conduct, reliance and harm.

Turning now to the Law Guardian's affirmation, the Law Guardian argues that it would not be in the best interests of the children to open the issue of their paternity. The Law Guardian contends that the man has held himself out as the children's father. The Law Guardian states that the children identify the man as their father, they have visitations with him, which occur at least 10 times per year, they can recount Christmas presents given to them by the man, and know the man’s other children to be their siblings.

These statements lack an evidentiary foundation. The Law Guardian does not provide detail for these visitations. The court does not know if these visitations last for five minutes, five hours or five days. The court does not know what kind of relationship, if any, these children have with the man. The Law Guardian does not specify the relationship the children have with the man's children.

Although the court need not address the man's claims after finding the moving papers and the Law Guardian's papers insufficient, it will, nevertheless, address the man's contentions.
The man alleges that equitable estoppel does not apply for several reasons. He first directs the court's attention to documents which list other men as the children's fathers. These documents, which are made part of his papers as exhibits, are photocopied appointment notices from the Queens County Office of Child Support Enforcement, Long Island City, New York. These notices request that the woman appear at their office on February 3, 2003 for an interview regarding an absent parent.

The man further contends that neither child bears his last name. He did not execute acknowledgments of paternity for either child and he has been told that the woman had other male visitors while he resided with her, and she would not allow him to claim the children for tax purposes. The man states that it is in the children's best interests for them to know their biological father, as he has reservations as to their paternity.

The Family Court has not made a determination as to whether equitable estoppel applies, but has instead found that the moving papers and the Law Guardian's papers are insufficient. Without ruling on the issue of equitable estoppel, the court finds that the man's arguments are also factually insufficient. Bare contentions do not show fraud, as the man claims. These allegations are not evidence of anything; the man’s allegations are unsubstantiated conclusions. Interestingly, the man’s papers do not deny that he had or has a relationship with the children, that he has lived with them, or that they recognize him to be their father.

Accordingly, in light of the insufficiencies of these papers, the woman's application to invoke the doctrine of equitable estoppel, to deny the man's request for genetic testing, is denied. The woman has not made a legitimate showing in her papers that she is entitled to the relief that she has requested.

Being denied of paternity just to be spared from child support would hurt any person especially the children. If you want to prove your child’s paternity, you can seek the legal expertise of the Nassau County Family Lawyer together with the Nassau County Child Support Attorney. You can also hire a Nassau County Child Custody Lawyer from Stephen Bilkis and Associates to help you in winning your custody battle.

Father Requests Paternity Test

July 28, 2014,

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.

A Manhattan Family Lawyer said that the Law Guardian filed an affirmation arguing against genetic testing. On or about February 6, 2007, the man filed an affirmation in opposition to the petitioner woman's motion to preclude genetic testing. The woman filed a reply affidavit.

The doctrine of equitable estoppel is invoked to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought.

The Family Court Act provides that in a paternity matter, the court may not order genetic testing where the court has issued a written finding that it is not in the best interests of the child on the basis of equitable estoppels (prevents someone from arguing).

The paramount concern in an equitable estoppel case is the best interests of the children. The evidence should be construed from the child's perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing include the child's interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect the testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered.

Equitable estoppel may be raised as a defense to preclude a party from being compelled to submit to genetic testing. However, the moving party bears the burden to show by clear and convincing evidence that he/she is entitled to invoke the doctrine of equitable estoppel.
The petitioner woman is requesting that the Family Court issue an order estopping genetic testing. The woman's moving papers allege that the man resided with her and the children between 1997 and 2004 when the man was thrown out of the home by the woman due to his disorderly conduct; the man was present at the hospital when each child was born; the man spent the last two Christmases with the children; although the man would not execute acknowledgments of paternity for the children, he is their biological father; the man has always held himself out to be the children's father; no other man has been in the children's lives; the man objects to being adjudicated the father because he does not want to pay child support; and the children would be devastated if told the man is not their biological father.

The woman must submit evidentiary proof in admissible form, in order to set forth, legitimately, her entitlement to the relief she seeks. If the woman fails to make a legitimate showing of her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied. When the moving party does not make such a legitimate showing, he/she is not entitled to a hearing.
The Family Court is not convinced by the woman's arguments that she is entitled to invoke the doctrine of equitable estoppel. Her unsubstantiated allegations and mere conclusions do not make a legitimate showing that equitable estoppel applies. She has not sufficiently pleaded the required elements of estoppel, which are conduct, reliance and harm.

Turning now to the Law Guardian's affirmation, the Law Guardian argues that it would not be in the best interests of the children to open the issue of their paternity. The Law Guardian contends that the man has held himself out as the children's father. The Law Guardian states that the children identify the man as their father, they have visitations with him, which occur at least 10 times per year, they can recount Christmas presents given to them by the man, and know the man’s other children to be their siblings.

These statements lack an evidentiary foundation. The Law Guardian does not provide detail for these visitations. The court does not know if these visitations last for five minutes, five hours or five days. The court does not know what kind of relationship, if any, these children have with the man. The Law Guardian does not specify the relationship the children have with the man's children.

Although the court need not address the man's claims after finding the moving papers and the Law Guardian's papers insufficient, it will, nevertheless, address the man's contentions.
The man alleges that equitable estoppel does not apply for several reasons. He first directs the court's attention to documents which list other men as the children's fathers. These documents, which are made part of his papers as exhibits, are photocopied appointment notices from the Queens County Office of Child Support Enforcement, Long Island City, New York. These notices request that the woman appear at their office on February 3, 2003 for an interview regarding an absent parent.

The man further contends that neither child bears his last name. He did not execute acknowledgments of paternity for either child and he has been told that the woman had other male visitors while he resided with her, and she would not allow him to claim the children for tax purposes. The man states that it is in the children's best interests for them to know their biological father, as he has reservations as to their paternity.

The Family Court has not made a determination as to whether equitable estoppel applies, but has instead found that the moving papers and the Law Guardian's papers are insufficient. Without ruling on the issue of equitable estoppel, the court finds that the man's arguments are also factually insufficient. Bare contentions do not show fraud, as the man claims. These allegations are not evidence of anything; the man’s allegations are unsubstantiated conclusions. Interestingly, the man’s papers do not deny that he had or has a relationship with the children, that he has lived with them, or that they recognize him to be their father.

Accordingly, in light of the insufficiencies of these papers, the woman's application to invoke the doctrine of equitable estoppel, to deny the man's request for genetic testing, is denied. The woman has not made a legitimate showing in her papers that she is entitled to the relief that she has requested.

Being denied of paternity just to be spared from child support would hurt any person especially the children. If you want to prove your child’s paternity, you can seek the legal expertise of the Nassau County Family Lawyer together with the Nassau County Child Support Attorney. You can also hire a Nassau County Child Custody Lawyer from Stephen Bilkis and Associates to help you in winning your custody battle.

Petitioner Seeks to Modify Child Support Order

July 27, 2014,

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.

Initially, the court said that respondent contends that the Family Courts of Ulster and Nassau Counties did not follow the requirements of Domestic Relations Law § 37 in conducting this proceeding. The Court disagrees. While the record does reveal that the two courts did not always precisely follow the directives of Domestic Relations Law § 37, it is clear that they did largely comply with the statute's requirements. The court does not consider the instances in which the two courts failed to follow the statute's directives to rise to the level of reversible error. Moreover, with respect to respondent's contention that Ulster County Family Court erred by refusing to let him cross-examine petitioner at the time that respondent testified in that court, we note that a petitioner is not required to appear personally at the hearing in the responding court (Domestic Relations Law § 37[5] ). Domestic Relations Law § 37(9) provides for cross-examination through the use of a deposition or interrogatories. Respondent was afforded this opportunity for cross-examination and took advantage of the opportunity. Accordingly, Ulster County Family Court did not err by refusing a personal cross-examination.

A Brooklyn Family Lawyer said the respondent next contends that petitioner presented insufficient evidence concerning the dependent child's needs to enable Ulster County Family Court to make an award of child support. Contrary to respondent's allegations, however, petitioner did testify as to the child's needs, although, as the court noted, she did not make a specific listing of those needs. Her testimony given at the time she filed her petition in Nassau County Family Court stated that the child needed $125 per week for support, and her financial disclosure statement revealed her total monthly expenses to be $1,637. It may therefore be discerned from the evidence that, of the total monthly expenses of $1,637, petitioner was attributing approximately $500 to the child's needs. As petitioner notes, respondent had every opportunity to question petitioner as to the specifics of the child's needs and failed to do so. Under these circumstances, we cannot say that Ulster County Family Court's award is unsupported by sufficient evidence.

Finally, a Bronx Family Lawyer said the respondent asserts that Ulster County Family Court erred in determining that he received unacknowledged income from a printing business in the Village of Saugerties. However, petitioner presented evidence that respondent had been photographed behind the store's counter, that he lived at the same address and that the claimed owner of the store had given as her address the address of an apartment owned by respondent in New York City, and that respondent had given out cards for the printing business which included his handwritten name. It is undisputed that respondent had worked in a printing business prior to the divorce. Furthermore, respondent failed to produce income tax returns showing his actual income and failed to substantiate his claim that he is disabled and unable to work. In all, the evidence presented more than supports petitioner's claim that respondent has unacknowledged income.

Accordingly, the court held that the order affirmed, without costs.

Child support is important to the rearing of a child, if you wish to file a child support petition, seek the assistance of a Nassau Child Support Attorney or Nassau Family Attorney at Stephen Bilkis and Associates in order to properly file your case.