Court Decides Issue Related to Paternity Proceeding

July 23, 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 Custody Lawyer said the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child's father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Westchester County Family Lawyer said the respondent father denies the mother's claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children's Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

A Westchester County Custody Lawyer said 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.

Mother Challenges Denial of Public Assistance

July 22, 2014,

A New York Family Lawyer said the mother applied for public assistance and medical aid from the County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents in Bethpage. Without any factual determination concerning the amount of child support actually furnished by her parents, the County Department of Social Services notified her that her application for eligibility for public assistance was being denied. The agency's position was that she is under twenty-one, her parents are responsible for her, she is residing with her own parents, and they are of sufficient ability to support her. As far as the unborn child, there are no needs to be met for the unborn child.

A New York Custody Lawyer said following a fair hearing proceeding, the hearing officer rendered a decision affirming the denial of assistance by the County Department of Social Services on the grounds that when a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

A Nassau County Family Lawyer said thereafter, the mother commenced the Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of the respondents of denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor's support; and denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother's needs are being met and the unborn child is precluded from establishing independent needs.

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.

A Staten Island Family Lawyer said 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.

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 Decides if Wife is Entitled to Rental Income

July 21, 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 Custody Lawyer said after a nonjury trial, the Supreme Court awarded physical custody of the children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife's application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

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

A Queens Custody 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.

Plaintiff Files Motion to Compel Child Support

July 20, 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 Custody Lawyer said the parties, formerly husband and wife, lived together during their marriage in Queens County. Dissension arose between them, and the wife (the present petitioner) started a separation action, which was tried in 1959, and resulted in a judgment, dismissing her complaint awarding her the custody of the infant daughter (then less than two years old and now four years old), directing the father to pay the mother for the child support the sum of $40 per week, and allowing him weekly visitation. A Nassau Child Support Lawyer said that, it appears that the parties, after the rendition of this judgment, again lived together; dissensions again arose; about April, 1960 the wife left the husband, taking the child with her; thereafter she went to Florida with the child and both still live there.

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

A Long Island Family 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.

Mother Petitions Court for Custody

July 19, 2014,

A New York Family Lawyer said 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 Custody 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 Child Custody 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 Brooklyn 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 Brooklyn Custody 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 Determines if it has Jurisdiction in Child Support Proceeding

July 18, 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 Nassau Child Support 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.

A New York Child Custody 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 New York City 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.

A New Your City Child Custody Lawyer said 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.

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.

Sometimes couples who separate tend to throw unending accusations against each other that eventually hurt their children. If you want to win a child custody case, the Nassau County Family Lawyer together with the Nassau County Child Support Attorney can help you in the courtroom. A Nassau County Spousal Support Lawyer from Stephen Bilkis and Associates will also be available in case you need their expertise.

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.

A proper advice should be given to a specific problem. Here in Stephen Bilkis and Associates, we render proper remedies for specific dilemmas. Consult our Nassau County Family attorneys for your concerns on family matters and our Nassau County Divorce lawyers in case of unsolved marital indifferences. Call us now.

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.

Nassau County Child Support Lawyers, Nassau County Family Lawyers and Stephen Bilkis & Associates should be your choice of representatives when it comes to these kinds of litigation. Our vast experience with family law and child support enhanced our knowledge and skills in handling the same. If you have questions, please feel free to call us or visit us at our place of business.

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.