Custody

Published on: May 16, 2014

Court Decides Whether to Enforce Provisions of Prior Judgment

by Stephen Bilkis

A New York Family Lawyer said that, in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated March 30, 2009, which denied his objections to so much of an order of the same court, dated October 14, 2008, as granted that branch of the mother’s motion which was to preclude evidence of the father’s finances and, in effect, granted the mother’s petition to enforce the provisions of a judgment of divorce dated July 9, 1996, and the parties’ separation agreement which was incorporated but not merged into the judgment of divorce, obligating the father to pay the college expenses of the parties’ child.

A New York Custody Lawyer said the issue in this case is whether the court erred in granting to enforce the provisions of a judgment of divorce dated July 9, 1996.

A New York City Family Lawyer said the court in deciding the case said that, contrary to the father’s contention, there is no requirement that a movant identify a specific statute or rule in the notice of motion, only that the notice “specify the relief demanded and the grounds therefor” (CPLR 2214 [a]). Even though the mother’s notice of motion and supporting affirmation did not formally and specifically request relief pursuant to CPLR 3126, where, as here, there is no misunderstanding or prejudice, “a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides”. Here, the mother’s notice of motion clearly seeks the relief of preclusion based upon the father’s alleged willful failure to respond to her discovery demands. Accordingly, because the father was adequately apprised of the relief sought and the grounds therefor, there was no prejudice, and the Child Support Magistrate did not err in treating the motion as one made pursuant to CPLR 3126.

Published on: May 15, 2014

Mother Petitions Court to Hold Spouse in Contempt of Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered March 16, 1998, the father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County, dated December 14, 2007, which, inter alia, after a hearing, granted the mother’s motion to hold him in contempt for failure to comply with a prior order of the same court, dated July 19, 2006, and committed him to a term of incarceration for a period of 30 days unless he purged himself of his contempt by paying the sum of $25,000 to the mother, and granted the mother’s separate motion for an upward modification of his child support obligation from the sum of $2,058 per month to the sum of $3,535.50 per month, and for an award of 50% of certain educational expenses for the parties’ two younger children.

A New York Child Custody Lawyer said that, the parties were divorced in 1998, and has four children. The instant appeal is from an order which granted the mother’s motion to hold the father in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and granted her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

A Westchester County Family Lawyer said the issue in this case is whether the mother’s motion that the father be placed in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and to grant her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

Published on: May 13, 2014

Mother Appeals Child Support Order

by Stephen Bilkis

This is a child support proceeding pursuant to Family Court Act, article 4, wherein the mother appeals from an order of the Family Court, Nassau County dated 18 June 2007 which denied her objections to an order of the same court dated 15 December 2006, granting the father’s petition for downward modification of his child support obligation as set forth in a judgment of divorce entered 19 April 2005, to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month.

A New York Family Lawyer said the court modifies, on the law, the order dated 18 June 2007 by deleting the provision thereof denying the mother’s objection to so much of the order dated 15 December 2006 as granted the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month, and substituting therefor a provision sustaining that objection, and vacating the provision of the order dated 15 December 2006 granting the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month; as so modified, the order dated 18 June 2007 is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the father’s child support obligation.

A New York Child Custody Lawyer said the long- term marriage of the parties produced three children. In 2003, the parties entered into a stipulation of settlement which was incorporated but not merged in the parties’ judgment of divorce, entered 19 April 2005. In relevant part, the stipulation of settlement provided that the parties would each pay one half of the children’s college expenses. The settlement further states that at such time as a child attends college, the amount of Child Support shall be readjusted based on Reinisch v Reinisch.

Published on: May 12, 2014

Father Appeals Child Support Order

by Stephen Bilkis

A York Family Lawyer said this is a child support proceeding pursuant to Family Court Act, Article 14, wherein the father appeals from an order of the Family Court, Nassau County entered on 5 May 2006 which denied his objections to eight orders of the same court, seven of which was dated 1 December 2005 and one dated 24 April 2006, inter alia, denying his petition for a downward modification of child support and granting the mother attorney’s fees.

The court affirms the order with costs.

A New York Child Custody Lawyer said the father filed a petition in 1997 seeking a downward modification of his child support obligation. Following a hearing, the Support Magistrate denied the petition on the ground that the father had caused his own inability to pay child support.

Published on: May 11, 2014

Court Decides Guardianship Hearing

by Stephen Bilkis

The children’s maternal grandmother, mistakenly relying upon an improperly executed last will signed by her daughter who had attempted to appoint the children’s paternal aunt as the children’s guardian.

A New York Family Lawyer said on the same day, the children’s paternal aunt and her mother advised a judge that they intended to take the children to their home in New York. The judge stated that, because no one else claimed for the custody of the children, he did not detect any objection to their plan. The court indicate the nature of the initial acquisition of the physical custody of the children by the children’s paternal aunt and her mother in order to emphasize that their conduct was not tainted by any unlawful or duplicitous act.

A New York Child Custody Lawyer said as a result, three children left their home to live with their paternal aunt and grandmother in Nassau County after the death of their parents.

Published on: May 11, 2014

Husband Appeals Divorce Judgment

by Stephen Bilkis

A New York Family Lawyer said this is an action for a divorce and ancillary relief wherein the husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered 21 December 2005, as, upon a decision of the same court dated 16 August 2005, made after a nonjury trial, awarded the wife a divorce on the ground of cruel and inhuman treatment, directed him to pay child support in the sum of $2,107 per month, directed him to pay child support arrears in the sum of $61,420, distributed 60% of the equity in the marital residence to the wife and 40% of the equity to him, and directed him to pay the sum of $39,732 to the wife’s counsel.

A New York Custody Lawyer said the court orders modification, on the law, of the judgment by deleting subparagraph (h) of the fifth decretal paragraph thereof directing the husband to pay child support arrears in the sum of $61,420, and by deleting the eighth decretal paragraph thereof directing the husband to pay child support in the sum of $2,107 per month. As modified by the court, the judgment is affirmed insofar as appealed from, without costs or disbursements and the matter is remitted to the Supreme Court, Nassau County for further proceedings.

A Brooklyn Family Lawyer said the court further ordered that the husband shall continue to pay child support in the sum of $2,107 per month until the Supreme Court, Kings County makes a new determination of child support and child support arrears.

Published on: May 9, 2014

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

by Stephen Bilkis

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.”

Published on: May 9, 2014

Father Applies for Upward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, which denied his objections to so much of an order of the same court, as denied his petition for an upward modification of the mother’s child support obligation and allocation of child care and college expenses.

A New York Child Custody Lawyer said that the Court ordered that the order, is modified, on the law, by deleting the provisions thereof denying the petitioner’s objections to so much of the order, as denied those branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses, and substituting therefor a provision sustaining those objections, and vacating the provisions of the order, which denied the branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses as so modified, the order, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a hearing and a new determination thereafter of the mother’s basic child support obligation pursuant to the Child support Standards Act and her share of child care expenses.

A Long Island Family Lawyer said the Support Magistrate’s order denied the father’s petition for an upward modification of the mother’s child support obligation on the grounds that the mother’s original child support obligation of $120 per week, which included child care expenses, was set forth in a stipulation of settlement incorporated but not merged in the parties’ judgment of divorce, no unreasonable and unanticipated change in circumstances had occurred, and the petitioner failed to demonstrate that the child’s needs were not being met. However, that determination was contrary to the express terms of the stipulation, which provided: “any change to the provisions hereof that the parties cannot agree upon may be the subject of further court proceedings.”

Published on: May 8, 2014

Wife Seeks an Upward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said the plaintiff and defendant were previously divorced by Judgment granted in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. The parties have three children.

A New York Custody Lawyer said that in May of 1999, the defendant pled guilty to money laundering and securities fraud in connection with his direct involvement with a brokerage. In 2001, the defendant was subsequently charged with engaging in unlicensed telemarketing in Florida. In April of 2001, six months after executing a Marital Settlement Agreement, the defendant was imprisoned. In December of 2003, he was released under house arrest.

A Staten Island Child Custody Lawyer said pursuant to the provisions of a Stipulation and Order, the defendant was to pay the sum of $3,500 per month as and for child support for two (2) unemancipated children, in addition to the sum of $2,000 per month on account of arrears pursuant to the Stipulation and another Order for a total payment to the plaintiff of $5,500 per month. Additionally, the defendant was obligated to pay a penalty of 5% if payment was not made within ten (10) days of the due date.

Published on: May 7, 2014

Mother Seeks to Vacate Child Support Order Based on Alienation of the Children

by Stephen Bilkis

A New York Family Lawyer said in this Child support case, the Court posed the question to counsel, as to whether a hearing on alienation was necessary, in view of a prior hearing held by this Court. The Court set a briefing schedule for the parties. The Mother has timely filed her memorandum of law as the proponent that the question of alienation must be heard by this Court, at a hearing. The Father has submitted no opposition whatsoever. The genesis of the Mother’s instant application is that after this Court’s decision previously rendered, she must continue to make payment of the existing order of support; and she wishes to vacate that order upon the basis of alleged alienation of the children.

A New York Child Custody Lawyer said that it is not clear as to whether the Mother alleges that alienation is a result of the Father’s actions, or is a result of the actions of the child/children themselves. Paragraph 8 of the Mother’s memorandum of law states that in this Court’s decision upon the prior matter, the Court only evaluated whether visitation would be contrary to the children’s best interests and thus detrimental to their welfare in determining what is in the children’s best interests, the Court did not undergo an analysis of the cause of why visitation is detrimental to the children. The Court never addressed whether the children have alienated themselves from the mother.

A Nassau County Family Lawyer said the Mother continues in Paragraph 9 of her memorandum, that the issue of alienation is still ripe for litigation, the court has not yet addressed the issue of fault and alienation in determining whether or not the children should have visitation with the Mother. The court only concluded that such visitation would be contrary to the children’s best interests, but did not determine whether the negative effect was caused by alienation.