Custody

Published on: July 14, 2014

Court Discusses Complex Paternity Test

by Stephen Bilkis

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

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

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

Published on: July 13, 2014

Wife Seeks Restraining Order Against Former Husband

by Stephen Bilkis

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

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

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

Published on: July 12, 2014

Father Appeals Order Increasing Child Support

by Stephen Bilkis

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

A New York Child Custody Lawyer said the court reverses on the law, with costs, the order dated 7 February 2008, sustains the father’s objections, vacates the order dated 3 December 2007 and remits to the Family Court, Nassau County for further proceedings in accordance herewith.

Previously, the father’s petition for a downward modification of his child support obligation was granted by the Family Court, which had been set in a settlement agreement that was incorporated, but not merged, into the parties’ judgment of divorce. The father’s support obligation was modified to the sum of $50 a month on the basis of the dissolution of his business which occurred through no fault of his own. The downward modification was affirmed by this Court. The mother subsequently petitioned for an upward modification of the father’s child support obligation, alleging there had been a substantial change in circumstances.

Published on: July 11, 2014

Appellant Files for Child Support Order

by Stephen Bilkis

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

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

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

Published on: July 10, 2014

Wife Claims She is Entitled to Rental Income

by Stephen Bilkis

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

A New York Custody Lawyer said that, the parties purchased the marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the plaintiff (hereinafter the wife) commenced an action for a divorce and ancillary relief. A Nassau Family Lawyer said that, in a pendente lite order dated July 8, 2002, the Supreme Court, among other things, awarded the defendant (hereinafter the husband) interim custody of the parties’ children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the July 2002 pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A Staten Island Family Lawyer said that, after a nonjury trial, in a decision dated March 29, 2005, the Supreme Court, among other things, awarded physical custody of the parties’ children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

Published on: July 9, 2014

Court Decides an Equitable Estoppel Case

by Stephen Bilkis

A New York Family Lawyer said this matter was referred to this Court by a Support Magistrate for determination as to whether equitable estoppel may be invoked by the Respondent to prevent genetic testing in this paternity petition. Before setting forth the procedural history of this matter, the Court will list the parties involved to avoid confusion. The child at issue is born January 1, 1997 (ten years old). Petitioner is the mother of the child’s mother and is the child’s maternal grandmother. The mother is currently married to his husband. Respondent is the child’s alleged biological father.

A New York Custody Lawyer said that, on or about July 26, 2006, the Nassau County Department of Social Services, on behalf of petitioner mother, filed a petition requesting that an Order be made declaring respondent, the father of the subject child, and for an order of child support. The Court docket reflects that when the matter came before the Support Magistrate, the issue of equitable estoppel was raised. The Support Magistrate assigned a Law Guardian, to represent the subject child and the matter was adjourned for the Law Guardian to speak with the child. On the adjourned date, the Law Guardian informed the Support Magistrate that the child “knows” that the Respondent is her “biological” father, but calls another man “Daddy”. As a result, the matter was referred to this Court for inquiry into the issue of equitable estoppel.

A Nassau Guardianship Lawyer said that, this Court assigned a 18-b counsel to represent petitioner; and another 18-b counsel to represent the mother; and the Nassau County Legal Aid Society to represent the respondent, after conference with the parties, this Court established a schedule for the submission of papers on this issue, and the matter was set for reserved decision.

Published on: June 22, 2014

Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted that branch of the plaintiff’s motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney’s fee.

A New York Custody Lawyer said that the relevant facts are set forth in a related appeal. An appellate court should rarely modify a pendente lite award, and then ” only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires”. Further, pendente lite awards “should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living” “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored”. Here, in denying that branch of the defendant’s cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant’s actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court’s determination on this issue. Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of pendente lite child support.

The Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of an interim attorney’s fee.

Published on: June 21, 2014

Father Requests Downward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 17, 1993, which, after a nonjury trial, inter alia, (1) directed him to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years, (2) directed him to pay child support in the amount of $3,097 per month, and (3) awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries, and the plaintiff wife cross-appeals from so much of the same judgment as awarded her a money judgment in the amount of only $69,043.

A New York Custody Lawyer said that, in another child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated August 10, 2009, which denied his objections to an order of the same court dated June 9, 2009, which, after a hearing, denied his petition for a downward modification of his child support obligation.

A Suffolk County Family Lawyer said the issues in this case are whether the court erred in decreeing the defendant husband to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years; directed him to pay child support in the amount of $3,097 per month; and awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries; and whether defendant husband is entitled to modification of his child support obligation.

Published on: June 20, 2014

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

by Stephen Bilkis

A New York Family Lawyer said that, in three related proceedings, inter alia, for modification of child support and maintenance obligations, the petitioner husband appeals (1) from an order of the Family Court, Nassau County, entered December 20, 1988, which denied his objections to so much of an order of the same court, dated September 19, 1988, as dismissed his application to increase the wife’s child support obligation, (2) from an order of the Family Court, Nassau County, entered May 18, 1989, which denied his objections to an order of the same court, dated March 16, 1989, dismissing his application to reduce his maintenance obligation, and (3) as limited by his brief, from so much of an order of the Family Court, Nassau County, entered June 8, 1989, as denied his application to (a) vacate an income execution served on his employer, (b) adjudge the wife’s employer to be in contempt, and (c) vacate the order entered December 20, 1988.

A New York Child Custody Lawyer said that, the parties settled their divorce action on July 22, 1983, by entering into a stipulation which was incorporated in but did not merge with their judgment of. The stipulation provided for the wife, at that time a full-time homemaker, to be the custodial parent of the parties’ two children. The parties further agreed that their assets, including the marital residence, would be essentially split evenly, and that the husband would pay child support as well as $100 per week maintenance.

A Bronx Family Lawyer said that, the custody of both children was subsequently transferred to the father, and the wife obtained employment outside the home. Following the change in custody, in March 1987 the Supreme Court directed the wife to pay child support in the sum of $10 per week per child. Fifteen months later, the husband commenced a Family Court proceeding seeking upward modification of the wife’s support obligation. He then commenced a second proceeding seeking elimination of the maintenance obligation imposed by the stipulation of settlement, and a third proceeding, inter alia, to renew his application for increased child support. The Family Court denied him the relief sought, and these appeals ensued.

Published on: June 19, 2014

Petitioner Files Action to Adopt Son

by Stephen Bilkis

A New York Family Lawyer said a couple entered into a written separation agreement and was divorced by the decision of the Supreme Court. Subsequently, the woman married another man and moved into the man’s residence. The woman and her new husband filed a petition for the adoption of the woman’s son. It was alleged in the petition that the consent of the child’s father, the woman’s former husband, was not necessary because he abandoned the child.

A New York Child Custody Lawyer said the child’s father then moved for an order enforcing the visitation provisions of the separation agreement. The father’s order to show cause contained a term barring the woman from prohibiting visitation during the pendency of the case. The woman however moved for restriction and suspension of any visitation pending a determination of the adoption proceeding, seeking to hold the child’s father in contempt of court for failing to pay child support, seeking to consolidate the motion in Supreme Court with the adoption proceeding pending in Surrogate’s Court, and seeking an award of counsel fees.

A Brooklyn Family Lawyer said by order, the justice directed that the adoption proceeding in the Surrogate’s Court be consolidated with the proceedings in the Supreme Court. The matter was set for a trial as the submitted papers were complete with factual issues.