Manhattan

Published on: December 25, 2013

Court Decides Child Visitation Battle

by Stephen Bilkis

A New York Lawyer said in this Family case, an Appeal was filed by the nonparty-appellant from two orders of the Family Court, Suffolk County. By decision and order on motion, as amended, the Court (1) directed that residential custody of the subject child was to continue with the petitioner father, (2) prohibited the respondent mother from having overnight child visitation with the subject child or allowing any contact between the subject child and the mother’s paramour and his family, and (3) prohibited either parent from removing the subject child from Nassau County or Suffolk County, pending hearing and determination of the appeals, on condition that the record or appendix on the appeals from the orders and the nonparty-appellant’s brief was filed and served pursuant to CPLR 2103(b)(1).

A New York Custody Lawyer said that the nonparty-appellant has not perfected the appeals as set forth in the decision and order on motion of this Court.

Thus, the Court on its own motion, Ordered the following: THAT –

Published on: December 15, 2013

Court Reverses Order Regarding Jurisdiction Issue

by Stephen Bilkis

Two cases of similar nature have come before the court for resolution.

A New York Family Lawyer said the first case is a child custody and visitation proceeding where the mother appeals from an order of the Family Court, Kings County, dated 20 May 2003 which granted those branches of the father’s motion which were to dismiss the petitions for modification of an order of visitation dated 2 December 2002 on the ground of forum non conveniens and an order of the same court dated 3 June 2003 which granted that branch of the father’s motion which was to dismiss a family offense petition for an order of protection against the father on the ground of forum non conveniens pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8.

The court orders the reversal of said orders, on the law, with costs. Also, those branches of the motion which were to dismiss the petitions are denied, and the proceedings are transferred from the Family Court, Kings County to the Family Court, Richmond County.

Published on: December 13, 2013

Father Seeks Full Custody

by Stephen Bilkis

On 22 September 2004, by order to show cause, plaintiff father moves for an order to modify the provisions of the parties’ judgment of divorce, dated 24 April 2002, so as to grant him full legal and residential custody of the child of the marriage, born January 1, 1997; appoint a law guardian to represent the interests of said child; and, directing that the residence of said child remain within the State of New York pending the hearing of this application.

A New York Family Lawyer said the order to show cause granted a temporary restraining order providing that the child shall remain in New York and shall not be removed from the jurisdiction pending hearing of the application. By order to show cause dated 20 October 2004, defendant mother moved for an order directing plaintiff to immediately return the child to her, as his custodial parent.

This case sprung from the marriage of the parties in Brooklyn on 31 October 1996. Defendant gave birth to the child on 1 January 1997 in Norway; defendant had returned to Norway to avail herself of health insurance coverage and to be near her family. A New York Custody Lawyer said the child and defendant mother returned to Brooklyn soon after the child’s birth and the family resided in Kings County, New York, throughout their marriage.

Published on: November 3, 2013

Petitioner Seeks Support from Same Sex Partner

by Stephen Bilkis

This appeal presents the issue whether Family Court has subject matter jurisdiction to adjudicate a child support petition brought pursuant to the Uniform Interstate Family Support Act (UIFSA) by a biological parent seeking child support from her former same-sex partner. A New York Family Lawyer said it is held that Family Court possesses subject matter jurisdiction to hear such a petition.

A Manhattan Family Lawyer said the mother seeks child support from her same sex partner. According to the mother’s allegations, which must be taken as true for present purposes, the parties were involved in a romantic relationship in New York from 1989 through 1995, and cohabited during much, if not all, of that period. During the first year of their relationship, they planned to conceive and raise a child together, discussing, among other things, available methods of conception, child-rearing practices, and whether the child would be raised as a sibling of the same sex partner’s children from a prior relationship. In 1993, after many failed attempts, the mother became pregnant by artificial insemination. The same sex partner performed the procedure by which the mother was inseminated.

The mother gave birth to a son and her same sex partner was present at the delivery and cut the umbilical cord, and the parties shared the expenses associated with the conception and birth of the child. After the child’s birth, both parties participated in his care. However, four months after the child was born, the same sex partner ended the relationship. The mother, a Canadian citizen, moved into her parents’ residence in Montreal with the child. An attempted reconciliation in 1997 failed, although the same sex partner continued to provide the mother with gifts for the child and monetary contributions for the child’s care at unspecified times after the parties’ separation.

Published on: October 2, 2013

Court Dismisses Appeal for Further Review of Division of Marital Property

by Stephen Bilkis

In an action for a divorce and ancillary relief, the defendant man appeals from a decision of the Suffolk County Supreme Court made after a nonjury trial, and as limited by his brief, from stated portions of a judgment of the same court which, upon the decision has awarded the complainant woman a 50% share in the appreciation of the marital residence, directed the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, directed the defendant man to pay the sum of $352.27 per week in child support, and fixed the commencement date of the action as the valuation date for equitable distribution of the married parties’ assets.

A New York Family Lawyer said it is ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the complainant woman a 50% share in the appreciation of the marital residence, by deleting the provision thereof directing the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, and by deleting the provision thereof directing the defendant man to pay the sum of $352.27 per week in child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Suffolk County Supreme Court for further proceedings consistent herewith, and for entry of an amended judgment thereafter; and it is further ordered that pending a recalculation of the defendant man’s child support obligation, he shall continue to pay the sum of $352.27 per week for the support of the subject child.

The defendant man acquired the marital residence prior to the parties’ marriage, using the proceeds of a settlement from a personal injury action. A New York Custody Lawyer said the the deed and mortgage were placed and kept solely in his name. Consequently, the marital residence is separate property. The appreciation of, or increase in the value of, separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. A Manhattan Family Lawyer said the complainant failed to carry her burden establishing that the marital residence appreciated in value during the parties’ marriage and, if so, that such appreciation was due in part to her efforts. Thus, it was error for the Supreme Court to award the complainant woman a 50% share in the appreciation of the marital residence. Moreover, it was error for the Supreme Court to direct that this separate property be sold. However, the complainant woman is entitled to a credit for her equitable share of the marital funds that were used to pay off the mortgage, which was the defendant man’s separate debt. Accordingly, the matter is remitted to the Suffolk County Supreme Court for the calculation of that credit.

Published on: October 1, 2013

Petitioner Sues Respondent for Child Support

by Stephen Bilkis

In 1962, the accused left his wife and four minor children in California. His wife then entered into ‘a common law situation’ with a partner and adopted the name of her partner. A New York Family Lawyer said that thereafter, she applied in California for public assistance for the children claiming that she did not receive any support from the accused. In 1971 she signed a misdemeanor complaint charging him with nonsupport. It was later determined that appellant was residing in New York and later, a reciprocal support petition was forwarded to the Family Court in New York. Thereafter, the court ordered that appellant to pay $16 a week for child support.

A New York Child Custody Lawyer said that the mother signed a felony complaint in California charging that appellant did ‘willfully, unlawfully and feloniously and without lawful excuse, omit to furnish’ support for his min children in violation of section 270 of the Penal Code of California. The complaint was sworn to before a Judge of the Municipal Court who then issued a warrant for appellant’s arrest. He was arrested at his home in New York and held pending extradition proceedings.

Thereafter, an investigator from the District Attorney’s office in Orange County, California, sent an application for requisition to the Governor of California. The application states that appellant is properly charged, in due form, in accordance with the laws of this State with the crime of violation of section 270 of the California Penal Code, a felony, committed in the county of Orange’ and ‘That said fugitive from while out of the State of California, committed acts intentionally resulting in said crime in said county. In an affidavit attached to the application, the mother recited the history of the case as indicated above and also stated that she had not received any support from the accused since the entry of the New York Family Court order. In another affidavit to the same effect Woodington noted that ‘this office has received no funds from the defendant’. Both of these affidavits were sworn to before a Judge of the Municipal Court of Orange County.

Published on: September 21, 2013

Petitioner Objects to Cost of Living Adjustment

by Stephen Bilkis

This case stemmed from a divorce action between parties dated May 5, 2005. After the trial, the Family Court ordered a judgment of divorce. A New York Custody Lawyer said the judgment also set forth the support obligations of the father. The father made objections to the order of the court but the same were denied. In his letter dated June 29, 2009, he also made objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, the court found that his objections were untimely, and denied his objections with prejudice. Later on, the father filed an appeal assailing the order of the Family Court, particularly its child support provision.

In the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the support collections unit (SCU for brevity) issued a cost-of-living adjustment (COLA for brevity) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009. Later on, the father admitted that he had previously received the notice of the COLA instructions at his residence, one month prior to the date of the COLA order.

A New York Custody Lawyer said the Support Magistrate denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 15, 2013

Stepmother Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said the issue before the Court is whether a biological mother — who continues to pay child support but agreed to an order permanently suspending her visitation — has abandoned her children rendering her consent unnecessary to their adoption by their step-mother. By amended petitions filed, the petitioner step-mother seeks to adopt the children. By motion filed, the Respondent biological mother moves for summary judgment dismissing the petitions as she does not consent to the adoptions. On April 5, 2007 the Court granted the Respondent’s motion for summary judgment and dismissed the petitions. A written order was entered and mailed to the parties. This written decision memorializes the oral decision issued from the Bench.

The two children unfortunately have been entangled with the Family Court proceedings since early childhood. In 2000, the Respondent was found to have neglected her children. In 2001, there was a custodial dispute between the children’s father and the Respondent resulting in an order of joint custody with primary physical residency with the Father. A New York Child Custody Lawyer said the proceedings were then transferred to the Integrated Domestic Violence Part resulting in the current custodial consent order which grants sole custody of the children to Father and suspends the Respondent’s visitation, additionally ordering that the Respondent shall not seek visitation. The order also states that the Respondent and the Father must share access to the children’s records; and it is also ordered that the Father must keep the Respondent updated regarding issues with the children and provide the Respondent with the children’s school photographs. The Respondent also was ordered to pay $50.00 monthly in child support. The Respondent has consistently paid child support. The Father both has accepted the monthly support payments and has never petitioned for a modification of the Respondent’s support obligation. The children live with the Father and the Petitioner. The Father supports the Petitioner’s applications to adopt the children. The Petitioner contends that she does not need the Respondent’s consent to the adoptions because the Respondent has abandoned the children.

Petitioner can proceed with the adoptions only if she either obtains the Respondent’s consent or can prove that the Respondent has evinced an intent to forgo her parental rights and obligations as manifested by her failure for a period of six months to visit the children and communicate with the children or person having legal custody of the child, although able to do so.

Published on: September 10, 2013

Court Decides if Ten Day Notice to Quit is Valid

by Stephen Bilkis

A New York Family Lawyer said that, by motion dated January 5, 2009, respondent seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession. A Suffolk Divorce Lawyer said that, according to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner’s daughter-in-law and was married to petitioner’s son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a “beach cottage” located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land. Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent’s husband moved out. Respondent’s husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

A New York Custody Lawyer said the issue in this case is whether respondent motion to dismiss should be granted on the ground that she is not a licensee and therefore cannot be evicted in a summary proceeding.

The Court held that, pursuant to RPAPL 713 (7), a special proceeding may be maintained” where respondent “is a licensee of the person entitled to possession of the property at the time of the license, and his license has been revoked by the licensor.” Petitioner contends that respondent daughter-in-law was a licensee and that her permission to reside at the subject premises was revoked when he served the 10-day notice to quit. Respondent, however, claims she is entitled to possession because, as a family member of the property owner by virtue of her marriage to petitioner’s son, she is not a licensee.

Published on: November 24, 2011

Law Students try to make a difference in Child Support and Custody cases

by Stephen Bilkis

A group of students in Orange County, Florida have taken the law into their own hands, and they just might win. The students are Law Students at FAMU, studying with a prominent New York City Family Lawyer, and they have developed the bill as a forward-thinking response to child support issues in the state of Florida.

Statistically, almost 20,000 children make their way into the foster system in the state of Florida each year, most being removed from parents by the state Department of Human Resources. This volume of people creates a tangible burden on the state of Florida, one which the New York Family Lawyer and his students think that absentee parents should help to shoulder.

Essentially, the bill drafted by the students re-configures the way that forced removals are considered under the law, and applies the same rules as those that apply during custody and support hearings for custodial parents. Parents of children who have been removed from their homes would be required to pay a sort of “child support”, said the Long Island Child Support Lawyer.Opponents of the bill claim that the new system would be unethical, similar to charging “rent” to incarcerated prisoners. They also claim that placing additional financial hardship on families who could not properly care for their children in the first place can only make matters worse. The bill’s authors have claimed that the bill will contain language which allows for indigent parents, and those truly unable to pay, to apply to have the fee waived.