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Court Hears Case Pursuant to Family Court Act Article 5-B

In a proceeding pursuant to Family Court Act article 5-B to establish a support order, the petitioner appeals from an order of the Family Court, Nassau County, which denied her objection to an order of the same court, which, after a hearing, granted the respondent’s motion to dismiss the proceeding and for an attorney’s fee in the sum of $3,000 to the respondent.

A New York Family Lawyer said that the petitioner is the sister of the father, acting on behalf of her then-14-year-old nephew, commenced the instant proceeding pursuant to the Uniform Interstate Family Support Act to establish a support order against the child’s mother. When the child’s parents were divorced in 2001, the mother was awarded custody of both the child and his sister, and the father was directed to pay approximately $1,500 per month for child support. In 2003 the child refused to continue living with his mother and went to live with his father. During the same period, the father anticipated that he would be incarcerated and commenced a proceeding to modify the custody provisions of the divorce decree.

A New York Child Custody Lawyer said on the return date of the father’s petition, the mother, father, and petitioner all appeared in court. As the mother recounted the events at a hearing held in connection with the instant petition, she had wanted the child to return to her home, but the child had been manipulated and turned against her by his father. She reluctantly agreed in the father’s modification proceeding to accept petitioner’s offer to have the child stay with petitioner at her home in Florida while the father was in prison, rather than have the child go to a foster home. Upon consent of both parents, the Family Court issued a modified custody order which provided, inter alia, that the mother and father would have joint legal custody of the child, and that after the end of the 2003/2004 school term, the child would reside with petitioner in Florida until further order of the court. At the court appearance on the father’s petition, there was no discussion of child support to the petitioner, as, according to the mother, “money was not an issue for her.”

A Queens Family Lawyer said after the father began serving his prison sentence, the child went to live with petitioner, and the mother voluntarily provided $400 per month for his child support. Petitioner commenced the instant proceeding in Florida asking the court to issue a support order establishing the amount of the mother’s support obligation. The proceeding was transferred to the Family Court in Nassau County, and a hearing was held before a Support Magistrate, at which petitioner was represented by the Nassau County Attorney. Following the hearing, the Support Magistrate issued an order dismissing the petition and awarding an attorney’s fee to the mother in the sum of $3,000. Petitioner filed objections to the order, which were rejected by the Family Court.

The Court concludes that, upon the record before it, the Family Court correctly granted that branch of the mother’s motion which was to dismiss the proceeding.

A Queens Child Custody Lawyer said as the Support Magistrate observed, there is already an outstanding child support order. This fact deprives the Family Court of authority to issue a support order in this proceeding.

Accordingly, the Family Court was correct in denying petitioner’s objection to the granting of that branch of the motion which was to dismiss the proceeding.

However, the Family Court lacked authority to grant that branch of the mother’s motion which was for an award of an attorney’s fee. The UIFSA does not permit the court to “assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state, except as provided by other law”. New York law provides for an award of an attorney’s fee only to the attorney representing the person who is claiming a right to support on behalf of the child. Thus, the Family Court had no statutory basis for granting that branch of the motion which was for an award of an attorney’s fee.

Petition for support should be filed with basis and in accordance with the grounds set forth by law. Here in Stephen Bilkis and Associates, before filing a petition in court, our Nassau County Child Support lawyers will study very well the cause of action of the petitioner. By this, the petitioner will be aware of his standing before the filing of the actual case. For failed marriages, our Nassau County Divorce attorneys are always ready to counsel you in case you want to file a petition in Court.

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