Father Moves for a Change in Child Custody

July 16, 2014,

A New York Family Lawyer said the couple was married and had four children together: a 12 year old; a 10 year old; a 9 year old; and a 7 year old. The father left the marital residence and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, child support, and maintenance held in April 1991, a memorandum decision was issued. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause among other things, for a change of child custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother's bizarre and dangerous behavior which was calculated to destroy the children's relationship with him.

A New York Custody Lawyer said in primary part, the father referred to the mother's persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child's vaginal and rectal area to become reddened prior to the mother's bringing her to the hospital. The father further noted the mother's ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father's view, a change in child custody was critical to the children's well-being and mental health.

A Suffolk County Family Lawyer said the mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children as well as a psychiatrist to conduct forensic examinations and to make a recommendation as to child custody.

A Suffolk County Child Custody Lawyer said in the meantime, while waiting for the forensic evaluations to be concluded, the father sought to have visitation extended to include overnight visits. However, given the pendency of the proceedings and upon the recommendation of the Law Guardian, the court denied the application, notwithstanding the fact that the previously-raised claims of abuse had been determined to be unfounded.

Thereafter, the mother made an application by order to show cause to modify the father's rights for visitation and to suspend visitation with the youngest child based upon a new charge of sexual abuse against the father involving the youngest child which was alleged to have occurred during a May 2, 1993, visit. Pending the determination of this application, visitation with the youngest child was suspended, and the court subsequently indicated that it meant to suspend visitation with all of the children pending a hearing thereon. It does appear from the record however, that visitation with the other children was subsequently reinstated, as was visitation with the youngest child at a later point.

Following the hearings, which spanned approximately one and one-half years, and notwithstanding the recommendations of both the Law Guardian and the court-appointed psychiatrist in favor of transferring custody to the father, the court ruled that child custody should remain in the mother.

With respect to appellate review of a custody determination, it has been observed that the Appellate Division's authority in custody matters is as broad as that of the trial court. While due deference is often accorded to the trial court, which has seen and evaluated the evidence and witnesses first hand, the overriding concern is always the best interests of the children, and an appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record and, indeed, is contrary to the weight of the credible evidence.

As is relevant to this case, among the factors to be considered by the court in making a custody determination are the parental guidance the custodial parent provides for the child; the ability of each parent to provide for the child's emotional and intellectual development; the financial status and ability of each parent to provide for the child; and the overall relative fitness of the parties. Additionally, the effect that an award of custody to one parent might have on the child's relationship with the other parent is also a proper and relevant consideration.

The existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child, and what will best promote its welfare and happiness.

Applying these basic and well-known legal principles to this case, the trial court's determination denying the father's application for a change of custody primarily due to the mother's interference with visitation and unfounded accusations against him of sexual abuse of their children was an improvident exercise of discretion in view of the record which included recommendations by both the court-appointed psychiatrist and the Law Guardian that the father be given custody of the four minor children.

While it is true that the recommendations of court-appointed experts are but one factor to be considered in making any child custody determination and are not determinative, such recommendations are entitled to some weight, as is the case with respect to the recommendations and findings of the court-appointed Law Guardian, unless such opinions are contradicted by the record.

In this case, after having spent approximately 56 hours meeting with and evaluating the parties and the children, the court-appointed psychiatrist, was of the opinion that it was not in the best interest of the children to remain living in the house with their mother as she is thoroughly incapable of supporting a relationship between the children and their father and has demonstrated this incapacity over the past four years with consistent effort and diligence. Inexplicably, the trial court ignored the unequivocal testimony and recommendation of the court-appointed psychiatrist. In its decision, the court stated that neither the psychiatrist nor the Law Guardian concluded that the mother was materially less fit as a parent. Yet, the record is completely to the contrary. In as clear language as possible, the psychiatrist testified that the mother is unfit, and that's why the kids shouldn't live with her.

Although the trial court heard the testimony of both expert and non-expert witnesses as to the problems with the father's visitation and had the benefit of the psychiatrist’s report, its decision was noticeably silent as to the mother's persistent interference with visitation. It is clear that the court failed to consider the overwhelming evidence that the mother consistently and willfully interfered in the father's relationship with the children.

In view of the mother's consistent preaching to the children that their father was an evil and dangerous man, the trial court incorrectly placed emphasis on the children's desire to remain with the mother. A child's preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing the child's expressed preference, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children.
Moreover, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of child custody would be extremely disrupting to the children. Although stability has been found to be in a child's best interests, it also cannot be determinative. For, as the Court of Appeals has since observed, while stability is an important consideration, the disruption of change is not necessarily conclusive.

While the Supreme Court also expressed concern over the husband's lack of hands on parenting experience, when this deficiency is balanced against the evidence concerning the wife's psychological disorder, and her pattern of distorting the truth, it cannot be gainsaid that the Supreme Court's decision is supported by a sound and substantial basis in the record, and thus should not be disturbed.

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Appellant Claims Order to Pay Child Support in Arrears is Incorrect

July 15, 2014,

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted those branches of the plaintiff former wife's motion which were for awards of child support arrears and counsel fees, and from a money judgment of the same court, which is in favor of the plaintiff and against him.

A New York Custody Lawyer said the appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the money judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment.

A Westchester County Family Lawyer said contrary to the Supreme Court's determination that a plenary action was necessary to enforce the parties' stipulation of settlement incorporated but not merged into the judgment of divorce, the plaintiff's post-judgment motion was a proper vehicle to ascertain the defendant's child support arrears, if any, that have accrued under that judgment of divorce. The Court also disagree with the Supreme Court's conclusion that an order determining the defendant's arrears, modified the child support provisions of the parties' stipulation of settlement incorporated into the judgment of divorce, or set a new recurring amount of child support that the defendant was required to pay going forward.

A Westchester County Custody Lawyer said further, it was error to simply award the plaintiff arrears based upon the records of the Nassau County Collection Unit submitted in support of the plaintiff's motion. Rather, the Supreme Court should have determined the defendant's child support obligation for the relevant years by applying the child support formula provided in the parties' stipulation of settlement, which in this case required the court to first determine the defendant's income during the relevant time period, and then apply the percentage-based formula from the stipulation of settlement. On remittitur, the Supreme Court should determine the dates that the parties' three children were emancipated and abate the child support obligation proportionately as the parties provided for in the stipulation of settlement. After comparing the defendant's child support obligation for the years in question to the actual amounts of child support paid, the Supreme Court should then enter a judgment in favor of the plaintiff and against the defendant for arrears, if any are shown to exist.

In light of the foregoing, we also remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff's motion which was for an award of counsel fees.

The parties' remaining contentions are academic in light of our determination.

In another Child support case, a hearing on the petition was scheduled to be held, in the Family Court, Nassau County. The mother appeared in court that morning, pro se, but allegedly became ill before the case was called. The mother submitted an adjournment request, indicating that she was ill, and then left the courthouse, allegedly to go see a doctor. When the case was called at approximately 3:00 P.M., the Support Magistrate acknowledged receiving the adjournment request, but proceeded with the hearing in the mother's absence, in effect, denying the mother's request for an adjournment. Thus, when the Family Court granted the father's petition, it did so on the mother's default. “However, notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order brings up for review those ‘matters which were the subject of contest’ before the [Family] Court” Accordingly, review is limited to the denial of the mother's request for an adjournment.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County, as corrected by an order of the same court, which denied her objections to two orders of the same court, entered upon her default in appearing at a hearing, after the denial of her request for an adjournment, inter alia, granting the father's petition for leave to enter a money judgment for overpayment of child support arrears and to vacate a child support order.

The Court ordered that the appeal from the order, as corrected by the order, is dismissed except insofar as it brings up for review the denial of the mother's request for an adjournment, without costs or disbursements; and it is further ordered that the order, as corrected by the order, is reversed insofar as reviewed, on the facts and in the exercise of discretion, without costs or disbursements, the orders, are vacated, the mother's objection to the denial of her request for an adjournment is sustained, and the matter is remitted to the Family Court, Nassau County, for a new hearing and a new determination on the petition thereafter.

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” Under the particular circumstances of this case, however, the Support Magistrate improvidently exercised her discretion in denying the mother's application for an adjournment.

Accordingly, the Court grant the mother's objection to the denial of her request for an adjournment, and remit the matter to the Family Court, Nassau County, for a new hearing on the petition, and a new determination thereafter.

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Court Discusses Complex Paternity Test

July 14, 2014,

A New York Family Lawyer said in this paternity proceeding, the Court is faced with a fascinating issue of statutory construction of apparent first impression. At issue is whether results of a blood genetic marker test administered to a putative father prior to his death in a paternity proceeding relating to a prior child of the same parties sufficiently supports petitioner's standing under Family Court Act § 519(c) to commence a new paternity proceeding involving another child of the same parties. Consistent with principles of statutory construction and in furtherance of the child's welfare and public policy, this Court answers the question in the affirmative.

In 1991, assignor ("Mother") gave birth out-of-wedlock to a baby boy in East Meadow, Nassau County, New York. Shortly after the birth, she and the child began receiving public financial assistance from the Nassau County Department of Social Services. Petitioner herein, Commissioner of Social Services, subsequently instituted a paternity proceeding on behalf of Mother against respondent to declare him the child's father and to obtain indemnification for child support payments. Mother alleged in the petition that she had had sexual intercourse with respondent on several occasions from 1983 to 1991, during the time including the critical period of conception. Petitioner was looking for child support apparently based on the fact that respondent was the owner of a gas station in Massapequa, New York.

A New York Child Custody Lawyer said that on the appearance date, Hearing Examiner ("H.E.") ordered the parties to submit to blood genetic marker tests to determine whether respondent could be excluded as being the child's father. Following the administering and analysis of the blood genetic marker tests in the form of Human Leukocyte Antigen ("HLA") tests or blood grouping tests, respondent could not be excluded as child's father due to a 99.83% probability of paternity as compared to an untested random man of similar ethnic background. Based on those results and respondent's voluntarily and intelligently made admission of paternity, an Order of Filiation was enteredby H.E., declaring respondent as child's father and ordering him to temporarily pay a monthly child support. The temporary order of support was made final in June 1992. Respondent apparently complied with that support order for several years, while continuing having a relationship with Mother.

Thereafter, a New York City Family Lawyer said the mother again gave birth out-of wedlock to another baby boy, the subject child of this proceeding. Following the birth, respondent's health deteriorated until he was finally diagnosed with cancer. Ten months after the onset of that illness, respondent died in West Islip, New York, at the age of 49 survived by his wife, movant and other children.

A Manhattan Family Lawyer said notwithstanding respondent's death, and based upon Mother's status as a recipient of public assistance, petitioner Commissioner commenced the instant proceeding by filing a paternity petition, as assignee and on behalf of Mother, against respondent decedent seeking a posthumous declaration of paternity and an award of child support pursuant to Family Court Act § 519. In support thereof, Mother affirmed that from 1983 until 1994 she had had exclusive sexual intercourse with respondent and, as a result, she became pregnant with the second child. On the appearance day, Nassau County Family Court appointed counsel to represent Mother, as an indigent pursuant to County Law, Art. 18-B, and a law guardian to protect child's interests.

In opposition to the paternity petition, respondent, through her privately retained counsel, moves to dismiss the petition, presumably pursuant to CPLR 3211(10), relying on Family Court Act § 519, CPLR 1001 and 1015. In responding papers, Mother cross-moves for an order: (1) amending the petition's caption to include the respondent; (2) directing blood genetic tests of Mother and the child; (3) directing that the blood genetic marker tests results previously performed on respondent be made available for this proceeding; and (4) directing a pre-trial standing hearing pursuant to Family Court Act § 519(d) based on several allegations by Mother that respondent openly and notoriously acknowledged his paternity of the child.

Following his receipt the motion, petitioner also cross-moves for an order: (1) denying respondent's motion to dismiss; (2) amending the papers to include her as a respondent in this proceeding; (3) directing that the results of respondent's prior tests be made available to this proceeding and the Deputy County Attorney; and (4) directing blood genetic marker tests of Mother and the child. Respondent's motion and the other parties' cross motions are consolidated for purposes of this decision and order.

If, at any time before or after a petition is filed, the putative father dies neither the proceeding nor the right to commence the proceeding shall necessarily abate but may be commenced or continued by any of the persons authorized by this article to commence a paternity proceeding where: (a) the putative father was the petitioner in the paternity proceeding; or, (b) the putative father acknowledged paternity of the child in open court; or, (c) a blood genetic marker test had been administered to the putative father prior to his death; or, (d) the putative father has openly and notoriously acknowledged the child as his own.

A paucity of precedent exists interpreting this statute. Paternity statutes, such as Family Court Act § 519, are to be given a liberal construction in order to protect the welfare of the child by not unduly suspending the question of parentage. And, when faced with statutory language which appears unambiguous, as here, a court must construe the language according to its natural and most obvious meaning while taking into consideration "the mischief sought to be remedied by the new legislation, and construing the act in question so as to suppress the evil and advance the remedy". In fact, since Family Court possesses exclusive constitutional and statutory jurisdiction to determine paternity and establish the support of children born out-of-wedlock, its statutory interpretations in this area ought to be accorded weight and respect due to the Court's expertise.

Respondent's reliance on CPLR provisions to support a dismissal of the paternity petition is misplaced, however. CPLR provisions only apply to Family Court proceedings when the applicable method of procedure is not prescribed by the Family Court Act. Contrary to respondent's arguments, Family Court Act § 519 specifically permits the commencement of a paternity proceeding against a deceased putative father. The instant proceeding commenced against respondent is therefore valid notwithstanding his prior death. Respondent next contends that the paternity petition must be dismissed because none of the four subdivisions of Family Court Act § 519, preventing abatement, exists or is supported by relevant evidence. She alternatively argues that even if the blood genetic marker test results were in fact administered in the past to respondent, there are questions as to their validity, foundation and authenticity given the passage of time. These contentions by Respondent are unpersuasive to the Court.
As the above quoted statutory language reflects, Family Court Act § 519(c) grants standing to a petitioner to commence a paternity proceeding when "a blood genetic marker test had been administered to the putative father prior to his death." This statutory language appears unambiguous and should be construed according to its natural and obvious sense while suppressing the evil and promoting the remedy sought to be advanced. Bearing in mind these principles of statutory construction, it is clear that the blood genetic marker tests administered to respondent during the prior paternity proceeding sufficiently support petitioner's standing to commence this proceeding pursuant to Family Court Act § 519(c).

Although the statutory language used by the Legislature in Section 519, subdivisions (a) and (b) appear to refer to the particular proceeding at issue, subdivisions (c) and (d) do not necessarily relate to it but concern previous acts taken by and/or on behalf of the putative father. By the same reasoning, when the statutory language in subdivision (c) speaks of "a blood genetic marker test" that had been administered to the putative father, the test does not necessarily relate or belong to the proceeding at hand. This Court believes that the relevant test for statutory purposes may be one performed prior to the proceeding at issue and/or involving another child. Such is the situation involved in the instant paternity proceeding.

As evinced by Court records, in 1992, respondent, Mother and their child submitted to blood genetic marker tests, in the form of HLA tests, in support of the prior paternity petition. Those blood grouping test results are presently in the custody of and readily available to this Court and counsel as part of the record in the previous proceeding. Since the relevant elements and characteristics of respondent's blood grouping tests do not change over time, they might be utilized, with a proper foundation, as material and relevant evidence in this proceeding to determine whether respondent can be excluded as the biological father of the first child. These results are not conclusive but rather probative evidence that must be considered together with other evidence of paternity. By utilizing these test results there would be no need for an exhumation or any other disturbance of respondent's mortal remains.

Faced with the existence of the prior blood genetic marker test results, respondent additionally argues that the validity and authenticity of the results are suspect because of the time period that has elapsed between their administration and the present. Although the test results were in fact performed almost three years ago, this Court is unpersuaded by respondent's unsupported claim as to their lack of validity and staleness.

Contrary to respondent's intimations as to the reliability and validity of blood genetic marker tests, which include blood grouping tests, HLA tests and deoxyribonucleic acid ("DNA") tests, caselaw has consistently approved and supported the reliability and accuracy of those tests to determine the probability of nonpaternity. Additional support for the tests' accuracy is found in the Legislature's amendment to Family Court Act § 532 to provide that genetic marker test results indicating at least a 95% probability of paternity are not only admissible, but create a rebuttable presumption of paternity.

Particularly to this proceeding, the blood genetic marker tests of respondent were performed by a reputable corporation. The corporation, which routinely provides testing services for this Court, submitted the test results accompanied by a sworn, notarized affirmation by its director, attesting to their validity and correctness. Furthermore, the results were also accompanied by a certification pursuant to CPLR 4518(c) by the director, certifying and authenticating the records and reports relating to the administering and analysis of the blood tests pursuant to Family Court Act §§ 418 and 532. Director affirmed in the Certification that the report was made in the regular course of business of the laboratory and immediately or within a reasonable time after the tests were administered. In any event, respondent never objected to the validity or accuracy of the test results or to the subsequently entered order of filiation and support.

Accordingly, based on the foregoing discussion, respondent's motion to dismiss the paternity petition is denied in its entirety. Mother's cross motion to: (1) amend the caption, summons, petition and all related papers to include respondent as such, is granted; (2) direct blood genetic marker tests of Mother and the child is granted; (3) direct that the blood genetic marker test results previously performed on respondent be made available to this proceeding, is granted; and (4) direct a standing hearing under Family Court Act § 519(d), is denied. Finally, petitioner's cross motion asking for similar items of relief than Mother, is granted in its entirety.
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Wife Seeks Restraining Order Against Former Husband

July 13, 2014,

A New York Family Lawyer said this is a special proceeding instituted under Article 78 of the CPLR in which the petitioner seeks an order restraining the Family Court of the State of New York. This application is made on the theory that by virtue of two orders made in the Supreme Court, Nassau County, that the Family Court has no jurisdiction to hear and determine the proceedings brought by the petitioner in those proceedings. The parties were formerly husband and wife. The latter has filed with the Family Court in the County of Nassau, two petitions. In one petition she sets forth that in an action instituted in the First Civil Court, District of Bravos, State of Chihuahua, Republic of Mexico, a decree was duly entered by which husband was directed to provide for her spousal support and the child support of the three children of the marriage.

A Nassau County Family lawyer said that the wife further alleges that in December 1958 by order of one of the Justices of this Court, the husband was ordered to pay the sum of Sixty ($60) Dollars a week for the support of the three children. She alleges that no exclusive jurisdiction was retained either by the Mexican Court or the Supreme Court of Nassau by the decrees referred to. She then alleges that since the entry of the Mexican decree, and since the entry of the order of the Supreme Court of Nassau County, there has been a change in circumstances which would warrant an increase in the amount of money to be paid for the support of the children and she seeks an order modifying both the Mexican decree and the Supreme Court order to that effect. In another petition filed under the same index number in the Family Court of Nassau County, the wife as petitioner again alleges the entry of the decree in Mexico and the decree in Nassau County and that neither of those courts has retained exclusive jurisdiction. She alleges that the husband, respondent in those proceedings, has failed to comply with the order of the Mexican Court and the order of the Supreme Court of Nassau County, and that he has failed to pay the $20. a week for the support of the child, and has failed to pay Temple dues for the children. In this petition she prays that the said respondent be dealt with in accordance with Article 4 of the Family Court Act. The substance of both petitions seek to obtain an order of the Family Court directing payment by the father of the children for the support of the children. The father, as petitioner before this court, proceeds on the theory that by the order in the Supreme Court, Nassau County, and a subsequent order of this court in which certain provisions of the order were modified in connection with custody and visitation of the children and provisions made in connection with the payment of the $60. per week provided in the order, the Supreme Court had retained exclusive jurisdiction of the matter thus depriving the Family Court of jurisdiction. This argument is based upon § 461 of the Family Court Act. By that section it is provided that a separation agreement, and decree of separation, and a final decree or judgment terminating a marriage relationship does not eliminate or diminish either parent's duty to a child support of the marriage under sections 413 and 414 of Article 4 of the Family Court Act. It states that in the absence of an order of the Supreme Court or of another court of competent jurisdiction requiring child support, the Family Court may entertain a petition and make an order for its support. It further provides that if an order of the Supreme Court or of another court of competent jurisdiction requires support of the child, the Family Court may (1) entertain an application to enforce the order requiring support; or (2) entertain an application to modify such order on the ground that changed circumstances require such modification, 'unless the order of the supreme court provides that the supreme court retains exclusive jurisdiction to enforce or modify the order.'

A Nassau County Family Lawyer the order of the Supreme Court of Nassau County provided among other things 'that this Court shall retain jurisdiction of the parties hereto for the purpose of enforcing, modifying or altering this order.'. The order contained a similar clause 'that this Court shall retain jurisdiction of the parties hereto for the purpose of enforcing, modifying or altering this order. Neither one of the orders provided in words or substance that the Supreme Court retained exclusive jurisdiction to enforce or modify the order. Each of the orders simply stated that jurisdiction of the parties was retained. However, an examination of the law discloses that the Supreme Court of Nassau County had no power to grant that part of the order which directed the future support of the minor children. The proceeding pending before the court on which that order was based was a petition for a writ of habeas corpus in connection with the custody of the children. There was no marital action pending in the Supreme Court of New York State. Under such a situation the only provisions for compelling the future support of minor children were Sections 30 and 30-a of the Children's Court Act.

A Suffolk County Family Lawyer said it is apparent from the wording of the preamble to the order, that the parties to the proceeding attempted to stipulate that the Supreme Court had complete jurisdiction in the matter and that the judge who signed the order was misled by such stipulation. The parties could not stipulate to grant to a court powers which had not been given to it by the Legislature. Under the circumstances so much of the order as directed support for the children was a nullity; likewise, so much of the order as attempted to modify any provisions for support in the order, would be a nullity. The power to provide for future payments for the support of infants in a habeas corpus proceeding was not given to the Supreme Court and the court certainly had no power to modify those portions of a decree of the court which were unauthorized in the first instance. The only court which had power to order future payments for the support of infants at the time of the entry of both of these orders was the children's Court of Nassau County, or its successor, the Family Court of Nassau County, if it were then in existence.

A New York Child Custody Lawyer said this court has read the opinion of the Judge of the Family Court of Nassau County denying the motions of the petitioner in this proceeding to dismiss the petitions on the same grounds as are set forth in the petition in this proceeding and is in accord with the statements contained in that decision. This fact is recited in this opinion only for the purpose of pointing out that this court has not attempted to act as an appeals court for the Family Court. Proceedings such as brought by the petitioner in this proceeding should not be ordinarily used as it is an attempt to get the Supreme Court to pass upon the decision of another court other than by appeal. However, rather than decide this proceeding upon a technicality, the court has gone into the merits of the matter and now holds and finds that no valid order for the support of these children was ever made or modified in the Supreme Court of the State of New York, Nassau County and that there was no retaining of exclusive jurisdiction in connection with that matter in the Supreme Court. Judgment is directed dismissing the petition. In view of the circumstances no costs will be allowed.

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Father Appeals Order Increasing Child Support

July 12, 2014,

A New York Family Lawyer said this is a support proceeding pursuant to Family Court Act article 4 wherein the father appeals from an order of the Family Court, Nassau County dated 7 February 2008 which denied his objections to an order of the same court dated 13 December 2007 granting, after a hearing, the mother's petition for an upward modification of his child support obligation and directing him, inter alia, to pay child support in the sum of $225 per week.

A New York Child Custody Lawyer said the court reverses on the law, with costs, the order dated 7 February 2008, sustains the father’s objections, vacates the order dated 3 December 2007 and remits to the Family Court, Nassau County for further proceedings in accordance herewith.
Previously, the father's petition for a downward modification of his child support obligation was granted by the Family Court, which had been set in a settlement agreement that was incorporated, but not merged, into the parties' judgment of divorce. The father's support obligation was modified to the sum of $50 a month on the basis of the dissolution of his business which occurred through no fault of his own. The downward modification was affirmed by this Court. The mother subsequently petitioned for an upward modification of the father's child support obligation, alleging there had been a substantial change in circumstances.

When a party seeks to modify the child support provision of a prior order or judgment, he or she must demonstrate a substantial change in circumstance. It is the burden of the moving party to establish the change in circumstance warranting the modification. In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a modification with that at the time of the order or judgment based on Matter of Talty v Talty, Matter of Nieves-Ford v Gordon, Matter of Heyward v Goldman and McMahon v McMahon.

A New York City Family Lawyer said there must have been an imputation of income or financial ability to the father in order for the Support Magistrate to have determined that there was a substantial change in circumstances on this record. A Support Magistrate has considerable discretion in determining whether to impute income to a parent as held in Matter of Genender v Genender. Where the Support Magistrate determines that a parent's account of his or her finances or ability to pay is not credible, the Support Magistrate may impute a higher true or potential income as held in Matter of Maharaj-Ellis v Laroche, Matter of Kristy Helen T. v Richard F.G. However, in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation based on Matter of Barnett v Ruotolo and Matter of Genender v Genender. A sufficient record is necessary as the imputation of income "will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion as held in the case of Matter of Ambrose v Felice. Here, the Support Magistrate did not specify the amount of income imputed to the father, did not specify the source from which such income might have been derived, and failed to give any reason for the imputation of income.

A New York City Custody Lawyer said the matter may not be remitted simply for the Support Magistrate to specify the omitted information as there were other errors made in the determination of the petition. The assertion of the father in a visitation proceeding that he was ready to resume parental responsibilities did not establish that he had the means to pay the child support ordered by the Support Magistrate. The court finds that the Support Magistrate also erred in determining that the father's support obligation should be the sum originally provided for in the settlement agreement that was incorporated into the judgment of divorce. That agreement clearly provides that the “Child Support Guidelines" would be applied if the father was no longer employed by a certain named entity or a similar enterprise. The record shows that the father is employed on a part-time basis by his father's business.

Accordingly, the court remits the matter to the Family Court, Nassau County, for a de novo determination of the mother's petition for an upward modification. If the mother is able to establish that the father's true or potential income is such that there has been a substantial change in circumstances, the father's support obligation shall be determined by the application of the Child Support Standards Act to the combined parental income.

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Appellant Files for Child Support Order

July 11, 2014,

A New York Family Lawyer child support proceedings pursuant to Family Court Act article 4, appellant appeals from (1) an order of the Family Court, Nassau County, which, inter alia, directed him to pay child support arrears in the amount of $5,000 and continued a prior order, obligating him to pay child support in the amount of $800 per month, (2) an order of the same court, which committed him to the Nassau County Correctional Facility for a period of six months for his wilful violation of the order, and denied him the opportunity to purge his sentence, (3) an order of the same court, which denied his motion to stay all proceedings before the Support Magistrate pending a ruling on his motion to disqualify the Support Magistrate, (4) an order of the same court, which denied his motion, among other things, for leave to reargue his motion, inter alia, to expunge his record of incarceration and to impose a sanction on the attorney for the petitioner, which was denied in a prior order of the same court, (5) stated portions of an order of the same court, which denied those branches of his motion, among other things, which were, in effect, to transfer the matter from the Family Court, Nassau County, to the Supreme Court, Nassau County, and for the recusal of the Judge, and (6) an order of the same court which denied his motion to hold nonparty in contempt of court for failure to comply with a subpoena.

A New York Child Custody Lawyer said that the appellant contends that the Family Court erred in adjudicating him in contempt of court and in directing that he be incarcerated for a period of six months. The appellant's contentions are without merit. This issue is not rendered academic by reason of the appellant's subsequent payment of all child support arrears, which resulted in his release. To the extent that a case may be construed as holding otherwise, it should not be followed. Specifically, the appellant never challenged the amount of arrears owed or the validity of the underlying child support order. The appellant's failure to pay child support pursuant to a lawful order constituted prima facie evidence of a wilful violation.

The appeal from so much of the order, as determined that there would be no opportunity for the appellant to purge himself of the contempt must be dismissed as academic in light of the appellant's concession that he was, in fact, released from jail approximately one week after his incarceration, upon full payment of the child support arrears.

A Westchester County Family Lawyer said the Family Court properly denied that branch of the appellant's motion which was, in effect, to transfer the matter from the Family Court, Nassau County, to the Supreme Court, Nassau County, as such transfers are expressly prohibited.

The Family Court properly denied the appellant's motion to adjudicate nonparty in contempt, as there is no evidence in the record establishing that non party failed to comply with the terms of the Family Court's prior discovery order, from which no appeal was taken.

A Suffolk County Family Lawyer said the order, which denied the appellant's motion to stay all proceedings before the Support Magistrate pending the outcome of a motion to disqualify the Support Magistrate, was signed by a Judge of the Family Court who voluntarily recused himself by order. However, records of the Family Court indicate that the appellant's motion was previously denied, with the appellant in attendance, well before the Family Court's recusal. While it is unclear as to why the Family Court's ruling was not reduced to writing, it cannot be said that the Family Court was without jurisdiction to issue the order. The appellant's claim that the order of the same court, was invalid for lack of jurisdiction is equally unavailing. Contrary to the appellant's contentions, the fact that the order bears the same date as the Family Court's order of voluntary recusal does not establish that the order was issued without jurisdiction.

In another case, a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County which denied his objections to an order of the same court, inter alia, denying his cross petition for downward modification of his child support obligation, continuing an order of support, directing him to pay child support in the sum of $169.38 per week, and authorizing the entry of a money judgment for arrears in the sum of $1,019.64. The Court ORDERED that the order, is affirmed, with costs.

A Long Island Family Lawyer said the appellant failed to meet his burden of establishing a substantial change of circumstances not of his own making, warranting a downward modification of his child support obligation.

The obligation to support another should be coincided with the ability the person giving it. Here in Stephen Bilkis and Associates, our Nassau County Child Support lawyers determine the amount of support which a person is entitled and the amount on which a person is capable of giving. Call our Nassau County Family attorneys now for other family related concerns.

Wife Claims She is Entitled to Rental Income

July 10, 2014,

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County, dated April 7, 2008, which, upon a decision of the same court dated March 29, 2005, made after a nonjury trial, inter alia, imputed an annual income to the defendant in the sum of $50,000 for the purpose of his child support obligation and, on that basis, directed the defendant to pay her child support in the sum of $1,112 per month, and, in effect, failed to award her equitable distribution of certain rental income.

A New York Custody Lawyer said that, the parties purchased the marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the plaintiff (hereinafter the wife) commenced an action for a divorce and ancillary relief. A Nassau Family Lawyer said that, in a pendente lite order dated July 8, 2002, the Supreme Court, among other things, awarded the defendant (hereinafter the husband) interim custody of the parties' 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 July 2002 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 Staten Island Family Lawyer said that, after a nonjury trial, in a decision dated March 29, 2005, the Supreme Court, among other things, awarded physical custody of the parties' 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.

A Staten Island Child Custody Lawyer said the issue in this case is whether the court erred in directing the defendant to pay plaintiff child support in the sum of only $1,112 per month, and, in effect, failed to award plaintiff equitable distribution of certain rental income.
The court modifies the judgment entered upon the decision and remits the matter to the Supreme Court, Nassau County, for further proceedings. The determination of the Supreme Court that certain fire insurance proceeds were not subject to equitable distribution because they were used to repair and refurbish the home, rather than dissipated by the husband is supported by the record. Additionally, contrary to the wife's contention, the Supreme Court had jurisdiction to distribute Haitian real property owned by the parties.

However, we agree with the wife that 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 (i.e. $24,000 per year) 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.
In light of the evidence in the record that the husband's actual income exceeds $50,000 per year, we remit the matter to the Supreme Court, Nassau County, 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, we also remit the matter to the Supreme Court, Nassau County, for a recalculation of his share of those expenses. In recalculating the husband's child support obligation under the Child Support Standards Act, we note that FICA taxes should be deducted only from income upon which FICA taxes are "actually paid" prior to applying the provisions of Domestic Relations Law § 240(1-b)(c)(Domestic Relations Law § 240[1-b][b][5][vii][H]).

Moreover, we remit the matter to the Supreme Court, Nassau County, 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.

Accordingly, the court held that the judgment is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the fourth decretal paragraph thereof imputing an annual income to the defendant in the sum of $50,000 for the purpose of his child support obligation and, on that basis, directing him to pay the plaintiff child support in the sum of $1,112 per month, (2) by deleting the fifth decretal paragraph thereof directing the defendant to pay 58% of all child care, unreimbursed non-elective medical, psychiatric, and dental expenses for the children, and (3) by deleting so much of the eighth decretal paragraph thereof as, in effect, failed to award the plaintiff equitable distribution of certain rental income; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further, ordered that, pending the new determination as to the defendant's obligation to pay child support, and child care, unreimbursed non-elective medical, psychiatric, and dental expenses for the children, the defendant shall continue to pay child support in the sum of $1,112 per month and 58% of all child care, unreimbursed non-elective medical, psychiatric, and dental expenses for the children.

If you have issues regarding the amount of child support that you are receiving, seek the legal opinion of a Nassau Child Support Attorney or Nassau Family Attorney at Stephen Bilkis and Associates in order to know you can remedy your case.

Court Decides an Equitable Estoppel Case

July 9, 2014,

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.

A Westchester County Family Lawyer said that, the Respondent filed a Notice of Motion on February 5, 2007, requesting that this Court dismiss the paternity petition, on the grounds that the Petitioner should be equitably estopped from adjudicating the Respondent as the child’s father. Respondent contends that the mother should be estopped from naming someone other than her husband as the child's father. Respondent alleges that the mother has engaged in conduct that amounts to "false representations of material fact," namely that she has held her husband out to be the child’s father. Respondent states that the mother has never told the child not to refer to her husband as her father, and that the father has been in contact with the child for a significant part of her life. The Respondent alleges that the mother told the child, when she was seven years old, that the husband was not her father. Respondent denies taking part in naming the child, and he had no idea that the child existed until he received a letter from Petitioner this past year. Respondent does not have a father-daughter relationship with this child, and has not had any visitation with her. In the event the court adjudicates him to be the child's father, he has no interest in having a relationship with her. The Respondent believes that it is in the child's best interests not to have her current father-child relationship thwarted by a late attempt to adjudicate him as the father.

A Westchester County Custody Lawyer said that, the mother filed an opposing affidavit on or about February 23, 2007. The mother details that she and the Respondent lived in the same building prior to and after the child's birth; she engaged in sexual relations with the Respondent nine to ten months prior to the child's birth; Respondent was aware she was pregnant; Respondent refused to attend the hospital when the child was born; she gave the child Respondent's last name and listed the Respondent on the child's birth certificate; the Department of Social Services filed numerous petitions since the child's birth to adjudicate Respondent the father, but these petitions were dismissed because Respondent could not be served; when the child was seven years old, she believed she "possessed sufficient maturity and understanding" to tell her that her "biological" father is the Respondent; and the child knows no other man as her father other than the Respondent. The mother asks that this Court deny the Respondent's application and establish the Respondent as the child's father, as the child wants to "know who her father is" and "meet him".

A Nassau Guardianship Lawyer said that, the Law Guardian filed an affirmation in opposition on or about February 28, 2007, in opposition to Respondent's "order to show cause. The Law Guardian states that the child learned that her "biological" father was the Respondent when she questioned her mother about her last name. This conversation took place when the child was seven years old and since that time, she has expressed a desire to meet the Respondent. The Law Guardian states that there is no fraud in this case, because although husband is married to the child’s mother, he has never held himself out as the child's father. The child does not even live with the mother or the husband; she lives with her maternal grandmother. The child only sees her mother and the husband on the weekends and he has been incarcerated for a "good portion" of the child's life. The Law Guardian asserts that it is "about time" the child had "closure regarding this matter" and the child should know who her real father is. The Law Guardian speculates that if Respondent is adjudicated to be the "biological" father, he may want to have a relationship with the child.

A Nassau Family Lawyer said that, the maternal grandmother, filed an affidavit on or about March 1, 2007. The maternal grandmother states she has had custody of the child since 1998, per order of the Nassau County Family Court, and the child has resided with her since her birth. Her daughter has been married to the said husband since 2000. The child has had no contact with the Respondent and regards the husband as her "father". The child refers to him as "Daddy". Finally, the Department of Social Services, by Deputy County Attorney, filed an affirmation in opposition on or about March 2, 2007, requesting that the motion to dismiss be denied, and that Respondent be ordered to submit to a paternity test.

The issue in this case is whether equitable estoppel may be invoked by the Respondent to prevent genetic testing in this paternity petition.

The Family Court Act ("FCA") mandates that genetic testing may not be ordered without the Court first making a written finding that it is not in the best interests of the child on the basis of equitable estoppel. FCA section 418 (a). The doctrine of equitable estoppel is a remedy based in equity that 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.

Courts have regularly applied this doctrine as a defense to preclude a party from being compelled to submit to genetic testing. The moving party bears the burden of proof to show by clear and convincing evidence that he or she is entitled to invoke this doctrine. If the Petitioner fails to make a prima facie showing of his or her entitlement to invoke the doctrine of equitable estoppel, then the motion must be denied. When the moving party does not make such a prima facie showing, he or she is not entitled to a hearing.

The best interest of the child is the ultimate concern in an equitable estoppel case and the evidence presented to the court must be construed from the child's perspective. The factors that must 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. Estoppel is therefore applied to prevent the destruction of an intact parent-child relationship.

After considering the papers submitted by the parties, this Court is not convinced that the Respondent may properly invoke estoppel to prevent genetic testing in this matter.

First, the Nassau County Department of Social Services stands "in the shoes" of petitioner, due to the public assistance benefits provided on behalf of the child. It has not been demonstrated that the Department of Social Services has engaged in any "fraud" which would bring harm to the Respondent. The Department is merely seeking an establishment of paternity for the recoupment of public welfare funds expended on behalf of this child.

Second, there is no "parent-child" relationship which the Court must protect between the child and the alleged father. This child does not live with the mother or the alleged father. The child lives with the maternal grandmother pursuant to an order of custody. The child has known for a significant period of time that the alleged father is not her biological father; the mother told the child as much three years ago. It is irrelevant that the child refers to him as "Daddy". The child understands that the alleged father is simply her mother's husband. The mother's marriage to the alleged father which occurred approximately three years after the child’s birth does not create an estoppel issue.

Third, it does not matter that the Respondent has not had "any significant relationship did not know of the child’s existence, and does not plan on having a relationship with her if adjudicated her father. These assertions similarly do not create an estoppel issue when none exists.

This Court cannot find that estoppel applies in this matter. This case is about the Department of Social Services attempting to establish paternity in an effort to recoup monies spent on behalf of the subject child. There is insufficient evidence to show that the child and the alleged father have a relationship that must be protected.

As the Respondent has not shown by clear and convincing evidence that he is entitled to the relief he has requested, his application to preclude genetic testing on the basis of equitable estoppel is denied. As a result, a hearing is not necessary on this application.

Accordingly, the court held that in accordance with FCA section 418(a), this Court finds that estoppel does not apply to preclude genetic testing in this instance. Therefore, this matter is referred to the Support Magistrate on April 25, 2007 at 9:00 am for genetic testing and for further proceedings.

Under the Family Court Act, it mandates that genetic testing may not be ordered without the Court first making a written finding that it is not in the best interests of the child on the basis of equitable estoppels. If you seek dismissed a paternity test, you will need to prove that the same will not redound to the best interest of the child. To do this, you will need the representation of a Nassau Order of Protection Attorney and Nassau Child Support Attorney. Call us at Stephen Bilkis and Associates.

Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

June 22, 2014,

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.

A Nassau County Family Lawyer said in the related appeal, the defendant appealed from so much of an order, as, upon reargument, adhered to its original determination in an order, which, in effect, and in pertinent part, determined that the unallocated net settlement proceeds of a medical malpractice action received by the parties during their marriage in the principal sum of $4.8 million were separate property, and that the allocation of that property between the parties would be determined at trial. We are reversing the order insofar as appealed from on the ground that the parties' deposit of the unallocated net settlement proceeds into a joint investment account, funds made payable to both parties, gave rise to a presumption that the proceeds were transmuted into marital property, and we are remitting the matter to the Supreme Court, Nassau County, for a determination, at trial, as to whether the plaintiff can rebut this presumption. Since the determination that the settlement proceeds were separate property, which determination underlies the order appealed from herein, is no longer in effect, we remit this matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff's pendente lite motion which was to enjoin and restrain the defendant from withdrawing any money from an investment account funded with a portion of the subject unallocated net settlement proceeds. In the interim, so much of the order, as enjoined and restrained the defendant from withdrawing any funds from the subject investment account in excess of $4,627 per month shall remain in effect.

The Court decline the plaintiff's request for the imposition of sanctions against the defendant in connection with this appeal.

In another case, a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, which denied his objections to an order of the same court, which, after a hearing, denied his petition for a downward modification of his child support obligation.

The Court ordered that the order, is reversed, on the law, with costs, the objections are granted, the order, is vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

A court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. The Family Court erred in concluding that the father's loss of income for reasons beyond his control, increased expenses due to an uninsured hospital stay, and the change in the custody arrangement from the mother having primary residential custody of the parties' two children to split residential custody, was not an unanticipated change of circumstances creating the need for modification of his child support obligation. Accordingly, the matter must be remitted to the Family Court, Nassau County, for a new hearing to determine the father's reduced child support obligation.

During the pendency of marital actions, a support pendent lite should be ordered by the Court. Here in Stephen Bilkis and Associates, our Nassau County Spousal Support attorneys will help a spouse be entitled to such support pending action. We also have our Nassau County Family lawyers who will be helping you in other concerns on family matters.

Father Requests Downward Modification of Child Support

June 21, 2014,

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.

A Suffolk County Custody Lawyer said the court in deciding the case said that, in calculating the amount of the child support award, pursuant to the provisions of the Child Support Standards Act (see, Family Ct Act § 413; Domestic Relations Law § 240), the Supreme Court, Nassau County, opted to apply the child support percentage (in this case 25%) to the combined parental income over $80,000. While the statute explicitly vests discretion in the court to apply the stated percentage to income over $80,000, rather than apply the factors set forth in Family Court Act § 413(1)(f), there must be some "record articulation of the reasons for the court's choice to facilitate review". Inasmuch as the record is bereft of the court's reasons for its choice, the court finds it appropriate to remit the matter to the Supreme Court, Nassau County, to enable it to set forth the factors it considered and the reasons for its determination. No other issues are reached at this juncture.

A court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. The Family Court erred in concluding that the father's loss of income for reasons beyond his control, increased expenses due to an uninsured hospital stay, and the change in the custody arrangement from the mother having primary residential custody of the parties' two children to split residential custody, was not an unanticipated change of circumstances creating the need for modification of his child support obligation. Accordingly, the matter must be remitted to the Family Court, Nassau County, for a new hearing to determine the father's reduced child support obligation.

Accordingly, the court held that the matter is remitted to the Supreme Court, Nassau County, to set forth the factors considered and the reasons for its determination as to child support and the appeal is held in abeyance in the interim. The Supreme Court, Nassau County, is to file its report with all convenient speed. The court further ordered that the order dated August 10, 2009, is reversed, on the law, with costs, the objections are granted, the order dated June 9, 2009, is vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

The court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. If you wish to modify the amount of your obligated child support, seek the representation of a Nassau Child Support Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.

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

June 20, 2014,

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.

A Bronx Child Custody Lawyer said the issue in this case is whether he wife’s child support obligation should be modified.

The court said that the parties' financial statements demonstrate that at the time of the first Family Court hearing, the wife was earning approximately one-third of the parties' combined income, while contributing a disproportionate $10 per week per child to her children's support. This documentary evidence, coupled with the husband's testimony that the children's expenses had increased, raised a substantial question as to whether the reasonable needs of the children warranted an upward modification of child support. Under these circumstances, the hearing examiner, who undertook examination of the litigants since they had appeared pro se, erred in failing to develop a full record regarding the parties' financial situation in March 1987, when the original order awarding $10 per week per child was made, and at the time of the hearing.
Moreover, in light of the husband's financial statement, which indicated his and the children's expenses significantly exceeded his income, we find that a substantial question was raised as to whether a reduction in his maintenance obligation was warranted based on extreme hardship. Thus, both the application to increase the wife's child support obligation and the application to decrease the husband's maintenance obligation are remitted to the Family Court, Nassau County, for further hearings and determinations consistent herewith.
We have considered the husband's remaining contentions, and find them to be without merit.
Accordingly, the court held that the order entered December 20, 1988, is reversed, on the law, without costs or disbursements, and the petitioner's objection to so much of the order of the same court dated September 19, 1988, as dismissed his application to increase the wife's support obligation is sustained, so much of the order dated September 19, 1988, as denied his application is vacated, and the matter is remitted to the Family Court, Nassau County, for a hearing and determination on that application; and it is further, ordered that the order entered May 18, 1989, is reversed, on the law, without costs or disbursements, the petitioner's objection to the order of the same court dated March 16, 1989, which dismissed his application to reduce his maintenance obligation is sustained, the order dated March 16, 1989, is vacated, and the matter is remitted to the Family Court, Nassau County, for a hearing and determination on that application; and it is further ordered that so much of the order entered June 8, 1989, as denied that branch of the appellants' motion which was to vacate the order entered December 20, 1988, is dismissed as academic, in light of our determination on the appeal from the order entered December 20, 1988, and the order entered June 8, 1989, is otherwise affirmed, without costs or disbursements.
The amount of child support depends on the income of the one ordered to give support. In order to properly compute the amount of child support, whether the same is proportional to the obligor’s income, there is a need for the help of a Nassau Child Support Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

Petitioner Files Action to Adopt Son

June 19, 2014,

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.

At the hearing, the woman presented a portrait of her former husband as being a man who had virtually no interest on his son, and who, despite her repeated requests, chose to have little, if any, contact with their child. Further, she asserted that the support of the child during some period were nonexistent.

A Brooklyn Child Custody Lawyer said the father, on the other hand, testified that he was always concerned with his son's well being. He indicated that his repeated attempts to visit his child were thwarted by his former wife and that he was not permitted to see his child nor speak to his child on the telephone. He testified that he sent his son a birthday card every year, and on one occasion, left a gift for the child with his aunt. When he attempted to call his former wife’s residence, the woman repeatedly hung up on him and disconnected the telephone line. As to the support payments of the child, he admitted that he was in arrears, but testified that he had provided cash payments on some occasions. The only support payments subsequent to the divorce which he was able to verify were the receipts from eight certified checks for $50 each, all sent shortly after the proceeding for adoption was brought.

In the decision appealed, the proposed adoption was denied because it was found that abandonment had not been established. The court also instituted a specific schedule of visitation, and awarded the woman the sum of $7,700 as and for accrued support payments, calculated at the rate of $50 per week for 154 weeks. The sum of $1,000 was awarded for counsel fees.

Finally, the court agrees with the woman that the calculation of the arrears in the support of the child was erroneous. The separation agreement provided that child support was to be in the sum of $50 per week until the child's sixth birthday, at which time the support was to increase to the sum of $60 per week.

The decision of special term was for $7,700, which represented back to the support of the child for 154 weeks at the rate of $50 per week. Therefore, for a period of 32 weeks, the decision provided for payments of $50 per week, when, according to the separation agreement, the father was responsible for payments of $60 per week. The decision is therefore modified to the extent of increasing the child support arrears to account for the extra $320 to which the woman is entitled. In all other respects, the decision is affirmed.

As parents opt to live separately, their children are the most affected in the situation. If you are experiencing the same dilemma, you can have the legal help of the Nassau County Divorce Lawyer or Nassau County Family Attorney. You can also have the legal services of the Nassau County Child Support Attorney for any legal issue you may encounter with regards to your child’s support and custody. Simply call or visit Stephen Bilkis and Associates office near you.