Custody

Published on: October 26, 2013

Court Dissolution Involving Emancipated Children

by Stephen Bilkis

A New York Family Lawyer said this proceeding consolidates, only for purposes of decision, two matrimonial actions with similar facts. In both matrimonial actions, the court granted a Judgment of Divorce based on express sworn statement and Findings of fact that there were no children of the marriage. In both of those cases, the Court has discovered that there were unemancipated children of the marriages whose support was not provided for in the proposed or signed orders. Also, in both matrimonial actions, the parties are entangled in separate mortgage foreclosure lawsuits.

Based on the complaint, filed by Atty. IS on behalf of Ms. N.C., the parties were married in Haiti in 1992 and there were no children of the marriage. On 21 January 2010, the plaintiff signed a verification of the complaint notarized by her attorney, Atty. IS. There are two different summonses with notice. In one summons with notice, Atty. IS cautions the parties, inter alia, not to remove the children of the marriage from any medical, hospital, or dental plan.

A New York Custody Lawyer said the divorce action had been assigned to the Judge as an uncontested matrimonial not involving children. The Matrimonial Clerk’s Office made the assignment as such since the complaint filed by Atty. IS, signed by him, and verified by his client stated: “There are no children of the marriage.” The plaintiff, N.C., in her own affidavit, stated: “There are no children of the marriage: Not Applicable.” Her affidavit was signed and notarized on 14 September 2010, and the notary was her attorney, IS. The Findings of Fact also recited: “There are no children of this marriage.” These repeated statements turned out to be false.

Published on: October 25, 2013

Respondent Objects to Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, objections filed by Respondent, the non-custodial parent, to an order of the Support Magistrate in favor of Petitioner modifying a child support order of $25 per week for birth expenses by an additional $62 per week for current child support of the parties’ one-year-old son. Specifically, respondent contends that the Support Magistrate’s findings are inaccurate and fail to reflect his current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively.

A New York Custody Lawyer said that, the Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income of each parent less certain statutory deductions, the net amounts of which are then added together to arrive at the parties’ “combined parental income”. A party’s income generally consists of his/her gross income “as should have been or should be reported in the most recent federal tax return”, and may be calculated based upon the party’s most recent pay stubs. A court is not bound by the income reported in an individual’s income tax return, and has considerable discretion to use other resources available to a parent in determining a child support award including “money, goods or services provided by friends and relatives”. The CSSA requires downward adjustments of each party’s income for certain items of expense and income, such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support actually paid pursuant to a court order on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action”.

A Suffolk County Family Lawyer said that, following these adjustments, the parties’ respective incomes are added together to arrive at the “combined parental income” upon which is calculated the “basic child support obligation”, consisting not only of child support but also child care expenses incurred by the custodial parent, apportionment of “future reasonable health care expenses of the child not covered by insurance”, and under appropriate circumstances educational expenses “in the best interests of the child as justice requires”. The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties, the result of which is then “prorated in the same proportion as each parent’s income is to the combined parental income” to arrive at the non-custodial parent’s child support obligation. Each parent’s pro rata share of the combined parental income is also used to apportion “each parent’s share of future reasonable health care expenses of the children not covered by insurance”, as well as child care expenses. “Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment”, each parent’s pro rata share of those expenses must be “separately stated and added to the” child support amount. If the custodial parent “is seeking work and incurs child care expenses as a result thereof”, “the non-custodial parent’s share shall be separately stated and paid in a manner determined by the court”.

Published on: October 24, 2013

Father Contends Court Made an Error in Child Support Calculation

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, Westchester County, entered September 10, 2007, which granted his objections to so much of an order of the same court entered July 12, 2007, as, after a hearing, directed him to pay the sum of $2,373 in monthly child support, only to the extent of remitting the matter to the Support Magistrate, in effect, to articulate the manner in which the Support Magistrate calculated the amount of child support, and otherwise denied his objections.

A New York Custody Lawyer said that, on review of the father’s objections to the Support Magistrate’s order which, inter alia, directed him to pay child support in the sum of $2,373 per month, the Family Court remitted the matter to the Support Magistrate, in effect, to articulate the manner in which the Support Magistrate calculated that sum. At the same time, the Family Court indicated that, on the merits, the father’s objections to the sum of $2,373 in child support, as fixed by the Support Magistrate, did “not appear to be something that would change the amount of his obligation” once the Support Magistrate articulated her reasons for setting that amount.

The issue in this case is whether the court erred in ordering the father to pay the sum of $2,373 in monthly child support, only to the extent of remitting the matter to the Support Magistrate, in effect, to articulate the manner in which the Support Magistrate calculated the amount of child support, and otherwise denied his objections.

Published on: October 22, 2013

Court Discusses Plaintiff’s Rights to Discovery

by Stephen Bilkis

Bligen v Markland Estates, Inc

Court Discusses Plaintiff’s Rights to Discovery

The plaintiff is the mother of an infant child who allegedly suffered from lead poison during the period that they lived at a premises located in Jamaica, Queens. The defendants were the owner and managers of the property. After the accident, the Department of Health issued a violation to the defendants as a result of the lead poisoning suffered by the child. The defendants then conducted its own testing for lead which indicated that all areas where below the relevant threshold for lead poisoning. A New York Family Lawyer said the mother of the child thereafter initiated a claim against the defendants for the injuries her child sustained. The defendants submitted all the documents regarding the test results to the plaintiff during the course of discovery.

Published on: October 21, 2013

Petitioner Seeks to Modify Custody

by Stephen Bilkis

In May 2007, petitioner filed a petition for a writ of habeas corpus claiming that when he was unable — due to financial circumstances — to pick up his daughter at Respondent’s home after a visit with her pursuant to the 2005 Order, Respondent refused to return the Subject Child to New York. The Court refused to issue a writ and dismissed the petition noting that the 2005 Order requires Petitioner to pick up his daughter from Respondent’s home and that Respondent was not mandated to travel to New York to return the Subject Child to Petitioner. A New York Family Lawyer said the petitioner did not allege that he went to Respondent’s home to obtain the Subject Child.

A New York Family lawyer said that all parties and counsel were present at a court proceeding regarding Respondent’s filed petitions. At that time Respondent expressed her concern that Petitioner planned to relocate the Subject Child to Maine which would prevent her from having child visitation with the Subject Child as set by the 2005 Order. Accordingly, the Court issued an interim order directing that the Subject Child’s residence remain in New York State to allow for the child visitation between Respondent and the Subject Child as provided in the 2005 Order to continue to be effectuated.

Thereafter, a New York Custody Lawyer said the Petitioner dams filed two petitions before this Court seeking (1) modification of the 2005 Order to allow him to relocate with the Subject Child to Maine, and (2) alleging that Respondent violated the 2005 Order with respect to child visitation.

Published on: October 20, 2013

Mother Accused of Extramarital Affair During Custody Battle

by Stephen Bilkis

In 1998, petitioner, the father of four adult children, became romantically involved with respondent mother, whom he met on one of his business trips to New York. An executive of a corporation based in Missouri, the father has residences in Manhattan and St. Louis, as well as the marital home, which he shares with his wife in California.

A New York Family Lawyer said that in early 1999, the mother discovered that she was pregnant. The father’s wife learned of the affair and of the mother’s pregnancy in April of the same year and filed for divorce in California. It should be noted that while the California divorce petition has not been pursued, it has never been withdrawn. According to the mother, the father and his wife telephoned her on several occasions, urging her to abort the pregnancy and offering her money to do so. Thereafter, the mother gave birth to twin daughters.

While the mother testified that the father was excited about the prospect of starting a family with her and that he intended to leave his wife, the father denied ever expressing such an intention. And, although the mother testified that she wanted to marry the father, it is undisputed that she had been carrying on a simultaneous sexual relationship with another man, to whom she was engaged at the time of the hearing. Although the father refused to sign an acknowledgment of paternity at the hospital, he was listed as the father on the children’s birth certificates.

Published on: October 19, 2013

Foster Mother Moves for Custody

by Stephen Bilkis

The child of herein parties was born in 1995, with a positive toxicology for cocaine. He was removed from his mother’s custody shortly after birth. Her parental rights were eventually terminated, as were the father’s in 1999. A New York Family Lawyer said both parents’ terminations were based on permanent neglect. During the time that the Department of Social Services (DSS) was providing services for the mother, the father was filing at least four custody proceedings. All of the father’s petitions were dismissed by the Family Court judge without a hearing. According to the trial court, the petitions were “dismissed due to [the father’s] unwillingness to partake in services recommended by [DSS].” For the years from 1995 to 1998, the father received one hour of DSS-supervised child visitation each week.

A New York Family attorney said that concerning the termination of parental rights finding, the Appellate Division held that DSS made no effort to satisfy its burden of showing that it had formulated a realistic plan that was tailored to fit the father’s circumstances. It also held that the Family Court judge “repeatedly thwarted the father’s efforts to establish the lack of any reasonable basis for the plan that was put in place. Obviously, the petition should have been dismissed at the conclusion of DSS’ case, if not earlier.” A New York Child Custody Lawyer said the Appellate Division, in finding that the Family Court judge had demonstrated hostility toward the father and his attorney, ordered that all further proceedings be conducted before a different judge.

Upon remand, the Court returned custody of the child to the father and entered a series of child visitation orders to facilitate the transition of the child back into the father’s home. During this period of time, the foster mother filed petitions seeking visitation and custody rights to the child. The Court rejected the foster mother’s claims. It found that there was no statutory, common law or constitutional basis to grant child visitation to a nonbiological, former custodian. The Court reserved on the question of whether the child has an independent constitutional right to seek visitation with his former foster mother and allowed the parties and the Law Guardian time to brief the issue. A Nassau County Family Lawyer said this decision answers that question in the affirmative. From the child’s birth in 1995 until April 2000, when he was returned to his father, the boy had lived with the foster mother for all of his life but for a few weeks.

Published on: October 18, 2013

Father Moves for Sole Custody

by Stephen Bilkis

A mother filed a motion to modify their divorce decree by deleting the requirement that she must reside with her three children within a radius of fifty miles of New York City. A New York Family Lawyer said the purpose of her application was to relocate the children with her. The father however cross-moved for sole custody of the children or, in the alternative, for an order conditioning the mother’s right to custody on her continued residency with the children within the aforementioned fifty miles radius.

Pursuant to the agreement, the father had the right to visit the children at any time on reasonable notice to the mother, and to have the children spend with him alternate weekends from Friday evening to Sunday evening. A New York Custody Lawyer said if the children went to summer camp, the father had the right to have any or all of them spend one-half of the remaining summer vacation time with him.

The mother stated that she wanted to relocate because she would be able to secure for them, similar if not, superior educational advantages without costs as well as outstanding recreational and summer activities at minimal costs. As for herself, she would be able to pursue her career in advertising and sales promotion which she could no longer do in New York City and at the same time spend more time with her children.

Published on: October 17, 2013

Court Discusses Complicated Case Involving a TRO

by Stephen Bilkis

Plaintiff A is the court appointed article 81 financial guardian for B. He is also the co-trustee of the B Family Trust. A New York Family Lawyer said these appointments were made only after the original action was brought. A has now interposed a third amended complaint on behalf of his ward. Defendant C as trustee and certain business defendants have brought a pre-answer motion to dismiss the fifth through fourteenth causes of action asserted in the third amended complaint. C has now joined in that motion in her individual capacity. Defendant D has separately moved to dismiss the causes of action asserted as to her. Defendant E separately moved to dismiss the causes of action asserted as to him.

F law firm separately moved to be relieved as counsel of record for certain defendants. This motion has already been denied by the court. A cross moved to: disqualify the F law firm; appoint a receiver; appoint a successor trustee in place of C of the B Family Trust; hold a hearing on whether a guardian ad litem should be appointed for G; strike D’s reply in support of her motion to dismiss and strike C’s reply in support of her motion to dismiss. A subsequently withdrew his application to have a receiver appointed. A New York Custody Lawyer said that although the parties represented to the court that the only relief left in the cross-motion pertained to disqualification of the F law firm, other requested relief has not been formally withdrawn. Thus, still outstanding is A’s request for the appointment of a successor trustee, a guardian ad litem hearing and to strike reply papers on the motions to dismiss.

Because all of the motions and cross-motion are substantially interrelated and rely on similar facts and arguments made sometimes in overlapping papers, they are consolidated for consideration and determination in this single decision. At the outset the court rejects arguments that the court should refuse to consider any of the relief requested in A’s cross-motion because it was made at a time when a stay of the proceedings was in effect. Regardless of whether the temporary restraining order contained in the August 27, 2007 Order to Show Cause precluded the cross-motion at the time it was originally interposed, that TRO had long expired by the time the cross-motion was actually submitted to the court. In the interim, and certainly by the time of submission, all parties had been given an opportunity to oppose the relief requested in the cross-motion on the merits. Thus the relief requested by A will be considered on the merits.

Published on: October 15, 2013

Court Decides Jurisdiction Issue

by Stephen Bilkis

In this motion for leave to reargue respondent’s motion to dismiss for lack of jurisdiction, and for leave to reargue the decision and order of this Court dated August 8, 1977. A New York Family Lawyer said that, respondent contends that this Court lacks jurisdiction in this proceeding brought by petitioner, a resident of Queens County, for upward modification of divorce decree, Kings County, dated January 31, 1974. A Queens Divorce Lawyer said that, respondent argues that since he is a resident of Putnam County, a county which does not adjoin the City of New York, this Court lacks jurisdiction (and by inference that petitioner could proceed only by a petition brought in Putnam County, or by a proceeding under the Uniform Support of Dependents Law, U.S.D.L.).

A Queens Order of Protection Lawyer said that, in October, 1974, an order was made in the Family Court, Kings County, where petitioner then resided (respondent then resided in New York County), on petitioner’s petition for enforcement of said decree. On March 18, 1977, respondent, then a resident of Putnam County, filed a petition in the Family Court, Queens County (where petitioner then resided and now resides) requesting expanded visitation with the child. A Queens Family Lawyer said that, on March 29, petitioner filed a petition in this Court requesting upward modification of support for the child. Both petitions were returnable in Kings County. When the Court was informed that neither party resided in Kings, the file was transferred to Queens County.

A New York Child Custody Lawyer said that, now respondent argues lack of jurisdiction as to petitioner’s petition, in spite of the fact that he desires a hearing in this County on his petition. In addition to the reasons set forth below it is obvious that to require two hearings, in two counties would create a needless multiplicity of suits.