Court Examines Jurisdiction Issue in Custody Proceeding

September 16, 2014,

A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.

The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.

A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child's birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.

A New York Divorce Lawyer said that according to B, A moved to Florida in May 2005, and resided there continuously through December 2005, at which time the B filed a petition in Florida seeking visitation. However, the Florida proceeding was dismissed based upon the Florida court's erroneous conclusion that the prior New York filiation proceeding deprived the Florida court of subject-matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.

B and A thereafter filed petitions in New York, where A and child were then residing, seeking, respectively, visitation and custody, but neither party informed the New York court, as required, of the proceedings held in Florida in accordance with Domestic Relations Law § 76-h[1][a].
A final order granting custody to the A and visitation to B was entered upon the consent of the parties. A and B subsequently filed several petitions in New York, inter alia, to modify the final order of custody and visitation. B also sought an order transferring jurisdiction of the matter to Florida. Upon learning, for the first time, of the Florida proceedings, the New York court held a telephone conference with the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida, during which it was determined that Florida had been the "home state" of the child at the time Br's original visitation proceeding was filed in that state and, thus, that Florida had jurisdiction to make the initial child custody determination in accordance with Domestic Relations Law § 76; Fla. Stat Ann § 61.514[1][a].

A Westchester County Family Lawyer said that nonetheless, the Florida court determined that, under the circumstances, including the fact that the New York court had already entered a final order of custody and visitation, Florida was an inconvenient forum and New York was the more appropriate forum in accordance with Fla. Stat Ann § 61.520 and Domestic Relations Law §§ 76-f, 76[1][b].

A Suffolk County Family Lawyer said that following the Florida court's determination to decline jurisdiction, B argued before the Family Court that New York had originally entertained A only because of misconduct on the part of A, and he contended that A should not be rewarded for such misconduct. The Family Court then held a hearing to determine whether it should decline to exercise jurisdiction pursuant to Domestic Relations Law § 76-g, by reason of unjustifiable conduct on the part of A. After the hearing, the Family Court declined jurisdiction over the matter, and, thus, dismissed the pending petitions and directed the parties to seek any further relief in Florida.

Domestic Relations Law § 76-g mandates, with certain exceptions, that if a court of this state has jurisdiction under Domestic Relations Law article 5-A because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction as per Domestic Relations Law § 76-g[1].

Contrary to B's contentions, the Family Court's jurisdiction over this matter was not gained by virtue of any "unjustifiable conduct" on the part of A. B's and the A's visitation and custody petitions were filed in New York after the Florida court had dismissed B’s initial visitation proceeding for lack of jurisdiction. While the decision of the Florida court dismissing the visitation proceeding was later determined to be incorrect based on Fla. Stat Ann 61.514[1][a], the record demonstrates that, as determined by a Florida court, any error in that regard was not caused by any fraudulent misrepresentations made by A, but rather by a misinterpretation of the relevant law.

Accordingly, contrary to B’s assertion, to the extent that such conduct could constitute "unjustifiable conduct" pursuant to Domestic Relations Law § 76-g, B failed to establish that the New York court obtained jurisdiction over this matter by virtue of any fraud committed by A on the Florida court.

Further, B has failed to demonstrate any misconduct on the part of A in returning with the child to New York, which was her state of residence prior to the child's birth, and where she had been residing with the child since his birth, before relocating to Florida. There was no custody order issued, or any other order of any court, that would have prevented A, in whose continuous custody the child had remained since his birth, from returning to New York, and there is no allegation that B was ever unaware of the child's whereabouts.

Under the circumstances presented, A's conduct in returning to New York was not unjustifiable based on Domestic Relations Law § 76-g[1][b], Sanjuan v Sanjuan and the Uniform Child Custody Jurisdiction and Enforcement Act [1997] § 208. Moreover, "unjustifiable conduct" for purposes of declining jurisdiction is limited to conduct that actually creates the court's jurisdiction.

In the case at bar, the determination to decline jurisdiction was improperly based, in part, on A's conduct during proceedings held in New York after jurisdiction was placed here in accordance with the Domestic Relations Law § 76-g[1] and the Uniform Child Custody Jurisdiction and Enforcement Act [1997] § 208.

In any event, even if A's conduct had been "unjustifiable," the statute directs that jurisdiction should not be declined, despite unjustifiable conduct, where a court of the state otherwise having jurisdiction determines that this state is a more appropriate forum.

Thus, the Family Court improperly declined to exercise its jurisdiction because the Florida court, the court otherwise having jurisdiction, had already determined that Florida was an inconvenient forum, and that New York was a more appropriate forum under the circumstances.

In light of the foregoing, we need not reach A's remaining contentions.

There is nothing more important in the world than a family and there’s nothing more important in a family than the children. Because of their delicate young minds, children need our protection. We must guard them against all the evils of society as much as possible for they hold the key to a better future. For assistance on matters relating to children or other family related problems, get in touch with our firm. Nassau County Child Visitation Attorneys and Nassau County Child Custody Attorneys, among others, at Stephen Bilkis & Associates are experts in these fields of law. If you are in need of legal advice concerning the issues mentioned in the case narration above, please feel free to contact us through our toll free number. Better yet, visit our place of business nearest you. A team of lawyers await those who are in need of answers regarding custody and visitation issues. Nassau County Family Lawyers at our firm are well trained, highly experienced and exceptionally skilled. Helping in the administration of justice in our society is what drives us to work. Help us help you. Let us make justice happen.

Wife Opposes Husband's Motion to Modify Child Support

September 4, 2014,

A New York Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband's motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff's visitation with the parties' son to the extent of reducing her visitation rights and denied plaintiff's cross motion to vacate the defendant's motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:

First, plaintiff should be allowed visitation with the child. The Special Term's finding that plaintiff's exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant's motion insofar as it sought to eliminate all visitation rights
.
Second, a New York Divorce Lawyer said the Special Term’s finding that plaintiff's visitation rights must be exercised in New York under supervised conditions since plaintiff had previously fled the jurisdiction with the marital issue and had disregarded prior judicial decrees is also correct. Plaintiff's past history amply supports the conclusion that plaintiff will likely abscond with the child if permitted unfettered access. Based on the protracted record and extensive litigation here, a further hearing on this issue is unnecessary, as held in the landmark cases of McKinley v. McKinley and Heely v. Heely.
Third, plaintiff's contention that Special Term should have declined to exercise its jurisdiction to modify the judgment of divorce is unmeritorious. Here, the subject child lived in New York until he was wrongfully taken to Arizona sometime in June of 1979 and he remained there until October of 1981 at which time he returned to New York to reside with the defendant. Clearly, New York is the child’s "home state" under the Uniform Child Custody Jurisdiction Act (Domestic Relations Law, § 75-c, subd. 5) and Special Term was empowered to make a custody determination pursuant to Domestic Relations Law, § 75-d, subd. 1, par. [a], cl. [i].

Fourth, a Westchester County Family Lawyer said the plaintiff’s claim that New York should have declined jurisdiction over the proceeding because Arizona had retained jurisdiction over the controversy and New York was an inconvenient forum is without merit. Here, while it is true that several actions were initiated in Arizona before the motions were made, Arizona courts did not state its willingness to exercise jurisdiction in any of those actions. In fact, based on the record, the Arizona Court of Appeals ruled that "the Supreme Court in and for the County of Nassau, State of New York, is a more appropriate forum for determination of the merits of the petitioner's [plaintiff herein] petition to modify custody". Clearly, the provisions of section 75-g of the Domestic Relations Law requiring a New York court to defer adjudicating a dispute when a foreign court is exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act is not applicable. This was the ruling in the celebrated case of Vanneck v. Vanneck. The doctrine of forum non conveniens as codified in section 75-h of the Domestic Relations Law is also not applicable. Although plaintiff and her child’s two other sisters continue to reside in Arizona, New York is his home state. New York has a "closer connection" with the subject child and his father. Substantial evidence concerning the child’s "present or future care, protection, training and personal relationships" is available in New York (Domestic Relations Law, § 75-h, subd. 3, pars. [a], [b], [c] ).

Fifth, a Suffolk County Family Lawyer said plaintiff's other contentions also lack merit.

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The Issue in this Case is Whether Plaintiff Stated a Cause of Action

September 3, 2014,

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney's fees. Although Defendant submits no opposition papers to Plaintiff's motion, Defendant affirmatively moves to dismiss the action "pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter." Plaintiff opposes Defendant's motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties' two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child's residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother's residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties' respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys' fees on behalf of wife so as to permit her to have proper and sufficient representation.

A New York City Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

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

Although Defendant failed to specify the CPLR §3211 ground for his motion to dismiss, because Defendant's motion challenges an element of Plaintiff's divorce action, as per the above, it seeks dismissal for Plaintiff's alleged "failure to state a cause of action." When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference. Additionally, because of the above burden, a CPLR §3211(a)(7) motion is premature before Plaintiff files and serves her complaint.

Here, because Plaintiff has not filed and served a complaint, Defendant's motion to dismiss is premature. On this record it is uncontested that Plaintiff commenced this action with a summons with notice. Neither party alleges service of a complaint or attaches a copy of Plaintiff's complaint to their papers. As such, "because a complaint has not been served, this court has no factual allegation to review so as to permit it to determine whether plaintiff has any cognizable causes of action motion to dismiss pursuant to CPLR § 3211 is pre-mature."

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

Accordingly, Defendant's motion to dismiss is denied.

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

Court Decides if Spousal Support and Alimony Should be Suspended Based on Denial of Visitation

September 2, 2014,

A New York Family Lawyer http://http://familylawyer.1800nynylaw.com/said that, in a matrimonial action in which the plaintiff wife had previously been granted a divorce, the defendant husband appeals (1) from an order of the Supreme Court, Suffolk County, dated August 25, 1981, which granted plaintiff's motion for the appointment of a receiver of all defendant's property in the State of New York, "particularly all of his right, title and interest in and to the former marital residence", named plaintiff as the receiver, awarded plaintiff a counsel fee of $750, and denied defendant's cross motion to, inter alia, suspend prospective payments of alimony and child support, on the ground that plaintiff unreasonably withheld visitation, and (2) from a further order of the same court, dated October 22, 1981, which denied his motion to renew.

In a stipulation settling their differences, which was incorporated but not merged in the judgment of divorce, the parties agreed, inter alia, that plaintiff would have exclusive possession of the marital residence, owned by them as tenants by the entirety. However, plaintiff was given the right to elect to sell the marital residence. The defendant further agreed to pay plaintiff $50 per week alimony and a total of $100 per week child support. The stipulation also provided: "Each party shall own free of any claim or right of the other all of the items of property, real, personal and mixed, of any kind, nature or description, and wheresoever’s situated, which are now owned by him or her".

A New York Divorce Lawyer said that, in January, 1981, defendant petitioned the Family Court, Nassau County, for an order suspending his child support obligations on the ground that plaintiff had unreasonably denied him visitation with the children. By order dated January 28, 1981, his application was denied. A Nassau Visitation Lawyer said that, in June, 1981, defendant made a second application in the Family Court, Nassau County, for suspension of alimony and/or maintenance, on the ground, inter alia, that he was unreasonably denied visitation. By order dated July 17, 1981, his application was, again, denied and a judgment for arrears was entered against him.

A Westchester County Family Lawyer said that meanwhile, plaintiff elected to sell the marital residence. When defendant refused to sign the contract of sale unless plaintiff agreed to turn over to him half the personal property in the house or, in the alternative, to waive "any and all alleged arrears in alimony payments", plaintiff moved, pursuant to section 243 of the Domestic Relations Law, for an order, inter alia, appointing a receiver with power to execute the contract of sale, and with power to "take those funds to which the Defendant would become entitled, placing them in a depository designated by the Court, in order that they will remain intact until such time as the Court makes a final determination concerning plaintiff's right to have a permanent Receiver and Sequestrator appointed and the scheduling of a hearing in order that all aspects of this matter be clearly demonstrated to the Court." A Nassau Child Support Lawyer said that, defendant cross-moved, inter alia, for an order suspending prospective alimony and child support payments, on the ground that plaintiff unreasonably withheld visitation, and for distribution of personal property in plaintiff's possession. Defendant also disputed the amount of the arrears. In the order appealed from dated August 25, 1981, Special Term, inter alia, appointed plaintiff receiver of all of defendant's property in the State of New York and denied defendant's cross motion, without a hearing. Thereafter, defendant made a motion to renew, alleging that plaintiff persisted in denying him visitation with his children. By order dated October 22, 1981, Special Term denied this application.

The issue in this case is whether respondent’s child support payments and alimony should be suspended on the ground that he has been denied visitation of his children.

A Suffolk County Family Lawyer said the court said that the affidavits raise numerous issues of fact relating to the amount of unpaid arrears, the proper distribution of personal property, and whether plaintiff had unreasonably denied defendant visitation. Accordingly, a hearing is required to resolve these issues. Defendant's claim that support payments should be suspended because visitation was unreasonably withheld was previously raised and rejected by the Family Court, Nassau County, in orders dated January 28, 1981 and July 17, 1981. Those determinations, however, do not preclude defendant from claiming that visitation was unreasonably withheld subsequent to July 17, 1981.

Defendant contends that he was deprived of contact with his children in August, September and October, 1981. If such is the case, Special Term, in its discretion, may suspend support payments. In the interests of justice, however, one half of the proceeds from the sale of the marital residence should be sequestered in a depository to be agreed upon by the parties, or, if the parties cannot agree, in a depository to be determined by Special Term, pending the result of the hearing on the cross motion.

Accordingly, the court held that the order dated August 25, 1981 modified, by deleting the provision which denied defendant's cross motion, and by adding a provision that one-half of the proceeds from the sale of the marital residence shall be placed in a depository to be agreed upon by the parties, or, if the parties cannot agree, in a depository to be determined by Special Term, pending the result of a hearing with respect to defendant's cross motion. As so modified, order affirmed, without costs or disbursements. Appeal from order dated October 22, 1981 dismissed as academic, in light of our determination of the appeal from the order dated August 25, 1981.

If you have been denied of your visitation rights, seek the help of a Nassau Visitation Attorney and/or Nassau Divorce Attorney in order to know what available remedies you can file to regain your visitation rights towards your children. Call us at Stephen Bilkis and Associates for free legal advice.

Respondent Allegedly Fails to Comply with Separation Agreement

September 1, 2014,

A New York Family Lawyer said this is an appeal from an order of the Family Court of Ulster County, entered May 8, 1986, which granted petitioner's application, in a proceeding pursuant to Domestic Relations Law article 3A, for an order directing respondent to pay for child support of his child. A Nassau Child Support Lawyer said that, petitioner and respondent were married in 1950 and divorced in 1980. Pursuant to a separation agreement entered into in 1977, respondent agreed to pay $150 per week to petitioner and their two unemancipated children as child support, such sum to be reduced by $25 as each child became emancipated. It is clear that respondent has failed to comply with this provision of the separation agreement, as petitioner was awarded a money judgment in Supreme Court in 1983 for support arrears.

A New York Divorce Lawyer said that, petitioner commenced this proceeding pursuant to Domestic Relations Law article 3A in 1984 in Nassau County Family Court. The petition and petitioner's testimony were certified and transmitted to Ulster County Family Court, where respondent resided. Following a hearing in Ulster County Family Court and petitioner's appearance in Nassau County Family Court to answer questions concerning her finances, Ulster County Family Court ordered respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages. It is from this order that respondent appeals.

The issue in this case is whether the Ulster County Family Court erred in ordering respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages.

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

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

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

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

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

Court Revisits Custody and Visitation Rights in Divorce Case

August 31, 2014,

A New York Family Lawyer said in March 29, 1973, an order from the Family Court awarding custody of the child of the parties to respondent and granting visitation rights to the petitioner was entered and appealed by the latter. Consequently, the said order was reversed and the custody of the child was awarded to the mother, the petitioner. For the determination of visitation rights to be granted to the respondents, the proceeding was remitted to the Family Court.

It has been ruled that the custody of this child of tender years has been in the mother pursuant to a separation agreement which became incorporated into a foreign decree of divorce in 1969. The Family Court specifically found the mother not to be unfit.

A New York Divorce Lawyer said the Court have reviewed the record and found that the mother is neither unfit nor less fit than the father. Under these circumstances, it was error for the Family Court to change custody to the father.

In another case of a child custody proceeding pursuant to Domestic Relations Law article 5, the mother appeals from an order of the Supreme Court, Nassau County dated October 14, 2010, which granted that branch of the father's motion which was for leave to pay a certain portion of his child support obligation to the mother's attorney for deposit into an escrow account or where money is held by a party but does not belong to the party, instead of directly to the mother, consequently, the order was affirmed.

A Queens Family Lawyer said it has been ruled that a custodial parent's deliberate frustration of, or active interference with, the noncustodial parent's visitation rights can warrant the suspension of future child support .Pursuant to a prior order of this Court the father paid one half of his child support obligation to the mother and one half to the mother's attorney, to be held in an escrow account until the mother could certify, to the satisfaction of the Supreme Court, her compliance with the visitation provisions of an order of the Supreme Court, dated April 28, 2006, and the absence of her interference with the father's visitation rights. In February 2010 the father moved, for leave to pay, to the mother's attorney for deposit into the escrow account, the one half of his child support obligation which he had been paying directly to the mother.

A Long Island Family Lawyer said in light of the father's showing to the Supreme Court that the mother continued to deliberately interfere with his visitation rights, the Supreme Court providently exercised its judgment in granting that branch of the father's motion .The mother's remaining contention is without merit.

In case when parents divorce, their children are thrown into an emotional impasse. The order of protection provides an opportunity to define their safety needs.

The focus becomes what is in the best interest of their children when making decisions with regard to custody, visitation and support of the child because the paramount criterion in custody disputes is the welfare and well-being of the child, or the best interest of the child. Custody of children is one of the most extreme aspects in family litigation. It could be an independent case or a mere incident in a divorce case. There are several types of custody which are commonly established and understanding how they differ is an absolute must if you are in any sort of custody dispute. A common type of custody includes full custody, physical custody, residential custody, joint custody and shared custody.

Moreover, in cases where the custodial spouse is interfering with a reasonable visitation agreement, a Court may require the custodial parent to take steps in order to ensure the child and the other parent to have a relationship.

Visitation rights are, indeed, rights, courts-ordered and enforceable. In cases you believe those rights are being violated, Stephen Bilkis & Associates with its Nassau County Family lawyers can fight for your rights and can also represent clients through the complicated legal issues that arise during child visitation and custody cases. They have convenient offices throughout the New York Metropolitan area including Corona, NY.
Our Nassau County Child Custody Attorneys knows that in a divorce or separation cases, the interest of the children must always be looked out for. They have general experience representing individuals in custody and visitation matters of all complexity. They help parents understand the handling of the details on cases of child custody and to the options that can or cannot work for the parties and their children.

Petitioner Moves for Discontinuation of Child Support for Eighteen Year Old Child

August 30, 2014,

A New York Family Lawyer said sometime in October of 1968, a separation agreement was entered into by the parties (husband and wife), the terms of which were subsequently incorporated into a divorce decree granted and entered in Mexico. The agreement gave the mother, the respondent, custody of the children of the marriage and ordered the petitioner to provide support for their son, S, in the amount of $30 per week with visitation rights. Thereafter, on petitioner's motion to compel visitation, the court by order entered 15 February 1977 granted petitioner specific revised rights of visitation with S.

Since the date of entry of the order of 15 February 1977, petitioner alleges that: he has been permitted to visit S only five times and has not been permitted to see him at all for the past five years; on his last attempt to see S, respondent's husband told him S did not want to see him and ordered him to leave; in 1979, he discovered that S ceased using his surname, he had taken that of his stepfather and he has been known by that name since 1976.

A New York Divorce Lawyer said that subsequently, petitioner moves pursuant to § 241 of the Domestic Relations Law for the suspension of the provision in the judgment of divorce for the support of the parties' eighteen year-old son.

A Brooklyn Family Lawyer said that in opposition to petitioner's motion, respondent and S informs both the court and the petitioner that, almost simultaneously with his eighteenth birthday, S legally changed his surname to that of his stepfather without notice to or consent of petitioner but they offered no explanation as to why S chose, as is his right pursuant to Civil Rights Law Article 6, to change his surname. Both respondent and S deny that respondent attempted to impede visitation or contact between petitioner and son but S concedes that the failure of communication was due in part to his own actions.

A Bronx Family Lawyer said the respondent then cross-moves for an order directing petitioner to pay for S’s college education. In support of the cross-motion, respondent asserts that they did not foresee the need to make provision for S’s college education at the time the separation agreement was executed. Together with S, respondent posits that college is a prerequisite to success in the present era of unemployment, S will be entering Nassau Community College, and S does not have the financial means to pay for his own education. However, no mention was made regarding petitioner's or respondent's income being furnished to the court, and there was scant enlightenment concerning S’s academic abilities.

The court ruled as follows:

First, while a factual issue is in fact present as to whether respondent has interfered with or withheld visitation rights so as to justify a suspension of the child support payments, their suspension without the necessity of a hearing is nonetheless warranted because of the total abandonment by S of his father, most tellingly exhibited by S’s change in surname to that of his stepfather. While it is true that the parental obligation to support a child does not terminate simply because the child is at odds with the parent, it is also true that the child's right to support is not unlimited. As held in the celebrated case of Roe v. Doe, a parent has a right to expect a minimum of respect and obedience from his child. By admittedly rejecting visitation with his father and by cavalier rejection of paternal identity without consultation with or explanation to petitioner, this eighteen-year-old "adult" (Civil Rights Law § 1-a) has voluntarily asserted his independence from petitioner and has thus forfeited his right to claim support from him. Thus, petitioner's application must be granted.

Second, the cross-motion must be summarily denied. The application by respondent is no more than an attempted "counter-attack" and given the granting of petitioner's application, it cannot be granted. Moreover, even if S is entitled to claim support from petitioner, college expenses are not ordinarily included in the parental duty of support. While the separation agreement does not automatically bar a direction by the court that petitioner pay S’s college expenses, neither respondent nor S has made the requisite showing that special circumstances exist which would warrant such a direction.

Nassau County Child Custody Attorneys, Nassau County Child Visitation Attorneys and Stephen Bilkis & Associates are experts in custody and visitation matters. If you know someone who is faced with the same legal problem as the recitation of the case above, do not hesitate to call us or visit us at our office. We will gladly help you with your legal needs.

Husband Moves to Terminate Wife's Visitation Rights

August 29, 2014,

A Manhattan Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband's motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff's visitation with the parties' son to the extent of reducing her visitation rights and denied plaintiff's cross motion to vacate the defendant's motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:

A Manhattan Family Lawyer said that first, plaintiff should be allowed visitation with the child. The Special Term's finding that plaintiff's exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant's motion insofar as it sought to eliminate all visitation rights.

Second, the Special Term’s finding that plaintiff's visitation rights must be exercised in New York under supervised conditions since plaintiff had previously fled the jurisdiction with the marital issue and had disregarded prior judicial decrees is also correct. Plaintiff's past history amply supports the conclusion that plaintiff will likely abscond with the child if permitted unfettered access. Based on the protracted record and extensive litigation here, a further hearing on this issue is unnecessary, as held in the landmark cases of McKinley v. McKinley and Heely v. Heely.

A New York City Family Lawyer said that third, plaintiff's contention that Special Term should have declined to exercise its jurisdiction to modify the judgment of divorce is unmeritorious. Here, the subject child lived in New York until he was wrongfully taken to Arizona sometime in June of 1979 and he remained there until October of 1981 at which time he returned to New York to reside with the defendant. Clearly, New York is the child’s "home state" under the Uniform Child Custody Jurisdiction Act (Domestic Relations Law, § 75-c, subd. 5) and Special Term was empowered to make a custody determination pursuant to Domestic Relations Law, § 75-d, subd. 1, par. [a], cl. [i].

Fourth, plaintiff’s claim that New York should have declined jurisdiction over the proceeding because Arizona had retained jurisdiction over the controversy and New York was an inconvenient forum is without merit. Here, while it is true that several actions were initiated in Arizona before the motions were made, Arizona courts did not state its willingness to exercise jurisdiction in any of those actions. In fact, based on the record, the Arizona Court of Appeals ruled that "the Supreme Court in and for the County of Nassau, State of New York, is a more appropriate forum for determination of the merits of the petitioner's [plaintiff herein] petition to modify custody". Clearly, the provisions of section 75-g of the Domestic Relations Law requiring a New York court to defer adjudicating a dispute when a foreign court is exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act is not applicable. This was the ruling in the celebrated case of Vanneck v. Vanneck. The doctrine of forum non conveniens as codified in section 75-h of the Domestic Relations Law is also not applicable. Although plaintiff and her child’s two other sisters continue to reside in Arizona, New York is his home state. New York has a "closer connection" with the subject child and his father. Substantial evidence concerning the child’s "present or future care, protection, training and personal relationships" is available in New York (Domestic Relations Law, § 75-h, subd. 3, pars. [a], [b], [c] ).
Fifth, plaintiff's other contentions also lack merit.

Nassau County Child Custody Lawyers, Nassau County Child Visitation Lawyers and Stephen Bilkis & Associates have you covered. If you are having problems involving the same issues mentioned above, surrender your trust with the best in this kind of litigation. Call us at our toll free numbers or pay us a visit at our office. We listen with open ears.

Court Decides if Petitioner and Respondent May be Subject to a Licensee Proceeding

August 28, 2014,

A New York Family Lawyer said that, in January of 1989, the petitioner purchased a premises known as Pine brook Avenue, New York. A certified copy of the deed to the premises was offered into evidence, although the respondent concedes that her name does not appear on the deed or mortgage. The monthly mortgage payment for the premises at issue is $1,350 per month. In April of 1994, the parties had a child out of wedlock. In December of 1997, the respondent and the parties' minor child moved into the subject premises with the petitioner. At the time that the respondent moved into the premises in question, there was no written agreement between the parties with regard to the subject premises and the respondent was not married to the petitioner. However, the parties were involved in a relationship, as boyfriend and girlfriend, and had been involved for some time. In July of 1999, the parties' second child was born out of wedlock. Sometime after the birth of the parties' second child, in early 2000, the relationship between the parties failed.

A New York Divorce Lawyer said that, soon thereafter, the respondent brought a Family Court proceeding for child support of the parties' two minor children. As a result of this proceeding, a Family Court order of support was issued. In May of 2000, the respondent commenced another Family Court proceeding. This proceeding was to obtain a protective order. On December 1, 2000, an order of protection was ordered by the Nassau County Family Court, in favor of the respondent and against the petitioner, upon default of the petitioner. Shortly after the order of protection was issued, the petitioner demanded that the respondent leave the premises.

A Westchester County Family Lawyer said that, in December of 2000, the petitioner served the respondent a 10-day notice to vacate the premises. In January of 2001, the petitioner commenced a holdover proceeding to obtain exclusive possession of the premises in question, on the ground that the respondent is a "licensee" whose license has been terminated by the proper notice and service under RPAPL 713 (7). The respondent waived any defects in the 10-day notice, the petition and any jurisdictional defects. At the commencement of this proceeding there was no child support or custody order in effect. The order of protection, however, was in effect.

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

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

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

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

Defendant Proposes to Dismiss Case Under DRL 230

August 27, 2014,

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney's fees. Although Defendant submits no opposition papers to Plaintiff's motion, Defendant affirmatively moves to dismiss the action "pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter." Plaintiff opposes Defendant's motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties' two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child's residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother's residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties' respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys' fees on behalf of wife so as to permit her to have proper and sufficient representation.

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

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

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

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

Accordingly, Defendant's motion to dismiss is denied.

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

Court Decides if Support Payments Should be Terminated

August 10, 2014,

A New York Family Lawyer said that, in a matrimonial action in which the plaintiff wife had previously been granted a divorce, the defendant husband appeals (1) from an order of the Supreme Court, Suffolk County, dated August 25, 1981, which granted plaintiff's motion for the appointment of a receiver of all defendant's property in the State of New York, "particularly all of his right, title and interest in and to the former marital residence", named plaintiff as the receiver, awarded plaintiff a counsel fee of $750, and denied defendant's cross motion to, inter alia, suspend prospective payments of alimony and child support, on the ground that plaintiff unreasonably withheld visitation, and (2) from a further order of the same court, dated October 22, 1981, which denied his motion to renew.

A New York Divorce Lawyer said in a stipulation settling their differences, which was incorporated but not merged in the judgment of divorce, the parties agreed, inter alia, that plaintiff would have exclusive possession of the marital residence, owned by them as tenants by the entirety. However, plaintiff was given the right to elect to sell the marital residence. The defendant further agreed to pay plaintiff $50 per week alimony and a total of $100 per week child support. The stipulation also provided: "Each party shall own free of any claim or right of the other all of the items of property, real, personal and mixed, of any kind, nature or description, and wheresoever’s situated, which are now owned by him or her".

A Bronx Family Lawyer said that, in January, 1981, defendant petitioned the Family Court, Nassau County, for an order suspending his child support obligations on the ground that plaintiff had unreasonably denied him visitation with the children. By order dated January 28, 1981, his application was denied. A Nassau Visitation Lawyer said that, in June, 1981, defendant made a second application in the Family Court, Nassau County, for suspension of alimony and/or maintenance, on the ground, inter alia, that he was unreasonably denied visitation. By order dated July 17, 1981, his application was, again, denied and a judgment for arrears was entered against him.

Meanwhile, a Brooklyn Family Lawyer said the plaintiff elected to sell the marital residence. When defendant refused to sign the contract of sale unless plaintiff agreed to turn over to him half the personal property in the house or, in the alternative, to waive "any and all alleged arrears in alimony payments", plaintiff moved, pursuant to section 243 of the Domestic Relations Law, for an order, inter alia, appointing a receiver with power to execute the contract of sale, and with power to "take those funds to which the Defendant would become entitled, placing them in a depository designated by the Court, in order that they will remain intact until such time as the Court makes a final determination concerning plaintiff's right to have a permanent Receiver and Sequestrator appointed and the scheduling of a hearing in order that all aspects of this matter be clearly demonstrated to the Court." A Nassau Child Support Lawyer said that, defendant cross-moved, inter alia, for an order suspending prospective alimony and child support payments, on the ground that plaintiff unreasonably withheld visitation, and for distribution of personal property in plaintiff's possession. Defendant also disputed the amount of the arrears. In the order appealed from dated August 25, 1981, Special Term, inter alia, appointed plaintiff receiver of all of defendant's property in the State of New York and denied defendant's cross motion, without a hearing. Thereafter, defendant made a motion to renew, alleging that plaintiff persisted in denying him visitation with his children. By order dated October 22, 1981, Special Term denied this application.

The issue in this case is whether respondent’s child support payments and alimony should be suspended on the ground that he has been denied visitation of his children.

The court said that the affidavits raise numerous issues of fact relating to the amount of unpaid arrears, the proper distribution of personal property, and whether plaintiff had unreasonably denied defendant visitation. Accordingly, a hearing is required to resolve these issues. Defendant's claim that support payments should be suspended because visitation was unreasonably withheld was previously raised and rejected by the Family Court, Nassau County, in orders dated January 28, 1981 and July 17, 1981. Those determinations, however, do not preclude defendant from claiming that visitation was unreasonably withheld subsequent to July 17, 1981. Defendant contends that he was deprived of contact with his children in August, September and October, 1981. If such is the case, Special Term, in its discretion, may suspend support payments. In the interests of justice, however, one half of the proceeds from the sale of the marital residence should be sequestered in a depository to be agreed upon by the parties, or, if the parties cannot agree, in a depository to be determined by Special Term, pending the result of the hearing on the cross motion.

Accordingly, the court held that the order dated August 25, 1981 modified, by deleting the provision which denied defendant's cross motion, and by adding a provision that one-half of the proceeds from the sale of the marital residence shall be placed in a depository to be agreed upon by the parties, or, if the parties cannot agree, in a depository to be determined by Special Term, pending the result of a hearing with respect to defendant's cross motion. As so modified, order affirmed, without costs or disbursements. Appeal from order dated October 22, 1981 dismissed as academic, in light of our determination of the appeal from the order dated August 25, 1981.

If you have been denied of your visitation rights, seek the help of a Nassau Visitation Attorney and/or Nassau Divorce Attorney in order to know what available remedies you can file to regain your visitation rights towards your children. Call us at Stephen Bilkis and Associates for free legal advice.

Petitioner Moves for Suspension of Child Support Payments

August 9, 2014,

A New York Family Lawyer said that sometime in October of 1968, a separation agreement was entered into by the parties (husband and wife), the terms of which were subsequently incorporated into a divorce decree granted and entered in Mexico. The agreement gave the mother, the respondent, custody of the children of the marriage and ordered the petitioner to provide support for their son, S, in the amount of $30 per week with visitation rights. Thereafter, on petitioner's motion to compel visitation, the court by order entered 15 February 1977 granted petitioner specific revised rights of visitation with S.

Since the date of entry of the order of 15 February 1977, petitioner alleges that: he has been permitted to visit S only five times and has not been permitted to see him at all for the past five years; on his last attempt to see S, respondent's husband told him S did not want to see him and ordered him to leave; in 1979, he discovered that S ceased using his surname, he had taken that of his stepfather and he has been known by that name since 1976.

A New York Divorce Lawyer said that subsequently, petitioner moves pursuant to § 241 of the Domestic Relations Law for the suspension of the provision in the judgment of divorce for the support of the parties' eighteen year-old son.

In opposition to petitioner's motion, respondent and S informs both the court and the petitioner that, almost simultaneously with his eighteenth birthday, S legally changed his surname to that of his stepfather without notice to or consent of petitioner but they offered no explanation as to why S chose, as is his right pursuant to Civil Rights Law Article 6, to change his surname. Both respondent and S deny that respondent attempted to impede visitation or contact between petitioner and son but S concedes that the failure of communication was due in part to his own actions.

A New York Divorce Lawyer said that the respondent then cross-moves for an order directing petitioner to pay for S’s college education. In support of the cross-motion, respondent asserts that they did not foresee the need to make provision for S’s college education at the time the separation agreement was executed. Together with S, respondent posits that college is a prerequisite to success in the present era of unemployment, S will be entering Nassau Community College, and S does not have the financial means to pay for his own education. However, no mention was made regarding petitioner's or respondent's income being furnished to the court, and there was scant enlightenment concerning S’s academic abilities.

The court ruled as follows:

First, while a factual issue is in fact present as to whether respondent has interfered with or withheld visitation rights so as to justify a suspension of the child support payments, their suspension without the necessity of a hearing is nonetheless warranted because of the total abandonment by S of his father, most tellingly exhibited by S’s change in surname to that of his stepfather. While it is true that the parental obligation to support a child does not terminate simply because the child is at odds with the parent, it is also true that the child's right to support is not unlimited. As held in the celebrated case of Roe v. Doe, a parent has a right to expect a minimum of respect and obedience from his child. By admittedly rejecting visitation with his father and by cavalier rejection of paternal identity without consultation with or explanation to petitioner, this eighteen-year-old "adult" (Civil Rights Law § 1-a) has voluntarily asserted his independence from petitioner and has thus forfeited his right to claim support from him. Thus, petitioner's application must be granted.

Second, a Long Island Family Lawyer said that the cross-motion must be summarily denied. The application by respondent is no more than an attempted "counter-attack" and given the granting of petitioner's application, it cannot be granted. Moreover, even if S is entitled to claim support from petitioner, college expenses are not ordinarily included in the parental duty of support. While the separation agreement does not automatically bar a direction by the court that petitioner pay S’s college expenses, neither respondent nor S has made the requisite showing that special circumstances exist which would warrant such a direction.

Nassau County Child Custody Attorneys, Nassau County Child Visitation Attorneys and Stephen Bilkis & Associates are experts in custody and visitation matters. If you know someone who is faced with the same legal problem as the recitation of the case above, do not hesitate to call us or visit us at our office. We will gladly help you with your legal needs.