Custody

Published on: September 26, 2013

Court Modifies Child Support Payments in Light of Disability Proceeds

by Stephen Bilkis

The petitioner wife obtained a judgment of divorce against the appellant husband. At that time, appellant earned a net salary of approximately $200 per week as a postal worker. The opinion of the Supreme Court, Suffolk County, in the divorce action recited that petitioner, who was then receiving welfare, could reasonably be expected to earn $25 per week. A New York Family Lawyer said the judgment of divorce directed the appellant to make child support payments of $50 per week for each of the two children of the parties and awarded alimony of $50 per week, for a total of $150 per week.

The Family Court, Suffolk County, on the petition of the Child support Enforcement Bureau of the Suffolk County Department of Social Services (CSEB), (1) granted an order of support consistent with the terms of the judgment of divorce setting support at $150 per week, allocating $50 per week as alimony for petitioner and $50 per week for each of the two children as support and (2) granted a wage deduction order against appellant’s salary from the Post Office.

A New York Custody Lawyer said that appellant suffered a severe back injury which resulted in a continuing inability to work. He received his regular salary until April 1980, at which time he became the recipient of disability payments.

Published on: September 25, 2013

Court Decides Case for Contempt of Court for Failure to Pay Child Support

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 4, 1999, which, in effect, confirmed a determination of the same court, dated September 13, 1999, that he had willfully failed to obey an order of the same court, dated December 9, 1996, and thereupon committed him to a term of incarceration of 120 days, unless he purged himself of his contempt by paying the sum of $10,000 towards arrears of child support.

A Suffolk Child Support Lawyer said that, pursuant to an order of the Family Court, Suffolk County, dated December 9, 1996, the appellant was obligated to pay $576 per month in child support. The appellant allegedly has not made any payment under that order, and the Commissioner of Social Services filed a violation of child support order petition. A hearing was conducted on September 13, 1999, although the appellant was not represented by counsel and was not advised of his right to have counsel present. A Suffolk Family Lawyer said that, the Hearing Examiner found the appellant guilty of a willful violation of the support order, and on November 4, 1999, the Family Court denied his objections, confirmed the Hearing Officer’s findings, and committed the appellant to a term of incarceration. A Suffolk Child Support Lawyer said that, the appellant contends that he was not properly notified of his right to counsel and therefore his consent to go forward at the hearing was not given knowingly, intelligently, and voluntarily.

A New York Custody Lawyer said the issue in this case is whether court erred in citing the father in contempt for not paying the ordered child support.

Published on: September 24, 2013

Father Appeals Child Support Calculations

by Stephen Bilkis

A New York Family Lawyer said that, in the parties’ separation agreement, which was incorporated but not merged into the judgment of divorce, the father agreed that his child support obligation for a given year would be 25% of his gross income for the prior year. On a prior appeal in this case, this Court found that it was error for the Hearing Examiner to rely on the father’s gross income from 1996 to calculate his child support obligation for 1998, and to fix that obligation from 1998 onward.

A Suffolk Child Support Lawyer said that, after that appeal, the Child Support Enforcement Bureau of the Suffolk County Department of Social Services (hereinafter the Bureau), which oversaw the father’s account with the Suffolk County Support Collection Unit, moved in the Family Court to have the court calculate the father’s child support obligation from 1998 onward. The Family Court referred the matter to the Hearing Examiner, who, by order dated November 14, 2001 (hereinafter the Hearing Examiner’s order), calculated the father’s child support obligation “effective” December 1, 2001. Contrary to the father’s contention, the court properly entertained the Bureau’s application.

The issue in this case is whether the father’s child support obligation should be re-calculated.

Published on: September 23, 2013

Court Decides on Case Involving Laches

by Stephen Bilkis

This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.

A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.

The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.

Published on: September 22, 2013

Court Discusses Cost of Living Adjustment

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 9, 2009, which denied his objections to an order of the same court, dated September 24, 2009, which, upon treating his letter dated June 29, 2009, as objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, found that his objections were untimely, and denied his objections with prejudice.

A New York Family Lawyer said that, 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 Suffolk County Support Collections Unit (hereinafter the SCU) issued a cost-of-living adjustment (hereinafter COLA) 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.

A New York Child Custody Lawyer said that, after a hearing to determine the timeliness of the father’s objections, the Support Magistrate, in an order dated September 24, 2009, 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 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 20, 2013

Court Reviews Child Support Standards

by Stephen Bilkis

In this case, an action for divorce was filed by plaintiff against his spouse before the Family Court, Suffolk County. After trial, the Family Court ordered a judgment of divorce with a stipulation of settlement. The said stipulation contains child support and maintenance provisions.

Later, a New York Family Lawyer said the defendant filed a motion to dismiss the complaint and asking to impose a sanction and for an award of an attorney’s fee before the Supreme Court, Suffolk County. The motion was granted by the Supreme Court saying that plaintiff was already judicially estopped from arguing that certain provisions in the parties’ judgment of divorce and stipulation of settlement should be set aside. With this, plaintiff filed an appeal with the Appellate Division of the Supreme Court of New York.

After careful consideration of the facts of the case, the Appellate Court ruled in favor of the plaintiff and ordered that the order of the Supreme Court, Suffolk County be modified.

Published on: September 19, 2013

Court Discusses Section 1055 of the Family Law Act

by Stephen Bilkis

It was on August 11, 1998, when a child was found abandoned by police officers in a bedroom of the home of respondent, (the child’s mother). The nine-year-old child had been bound with electrical cords, hooded with a pillowcase tied around his neck, and gagged with a sock stuffed in his mouth and secured by electrical tape wrapped around his face. A New York Family Lawyer said the child’s arms and legs had been tied so that he was forced to remain standing in a cruciform position; he was otherwise naked, and loud music was left playing in the room. The door to the room was taped shut. When discovered, the child had been tied up since August 7, 1998; he was found to have sustained several old and healing cuts and bruises, whip marks, and numerous scars and lacerations.

The Department of Social Services (hereinafter Department) petitioned against respondents, for a determination that the children are abused children. During the trial, the court issued a Fact-Finding Order and an accompanying decision on July 7, 1999. The court determined the facts recounted above and found that petitioner had adequately proven that the child was the victim of abuse perpetuated by respondent caretakers.

As defined by Family Court Act section 1012 (e) (i) and (ii). The said abuse comprised at least four occasions when the child was tied up and numerous occasions when he was whipped and beaten. The court further concluded that petitioner also met the higher burden of proving by clear and convincing evidence that the respondent repeatedly and severely abused the child. Therefore, a New York Child Custody Lawyer said in addition to the finding of abuse as to both respondents, the court found based upon clear and convincing evidence that the said child was the victim of severe and repeated abuse inflicted by respondent. Hence, an Order of Protection was issued by the court.

Published on: September 18, 2013

Court Discusses Responsibilities Under Family Court Act

by Stephen Bilkis

Petitioner is an 18-year old single female attending in a community college on a work-study program. Her mother died on September 2, 1961. A New York Family Lawyer said thereafter, her father married respondent on August 9, 1962 when petitioner was three years of age. Two female children, petitioner’s half sisters, were born of this union. Her father died on March 10, 1975. Petitioner continued to reside in respondent’s home until June 15, 1977.

In June of 1977, petitioner left respondent’s residence to reside with relatives and now seeks support from the respondent pursuant to Section 415 of Article 4 of the Family Court Act. A New York Child Custody Lawyer said the petitioner has limited income and is imminently liable to go on public assistance and in fact presently receiving medicaid benefits from the Department of Social Services. Petitioner cited two (2) similar cases in support of her contention that the death of a parent does not conclude the stepparent relationship because death is an act of God and is therefore not a willful act. In contrast, the petitioner further argues, a divorce does end this relationship since there is an “intent to terminate the living tendrils of the marriage.”

The question presented in this case by the petitioner is whether a stepparent, whose marriage has been terminated by the death of the child’s natural parent, is legally responsible for the support of the stepchild.

Published on: September 17, 2013

Court Discusses Order for Protection

by Stephen Bilkis

In an action for divorce, a New York Family Lawyer said the wife has made two applications for orders directing her husband to leave their marital home, to provide support and maintenance for her and to restrain him from removing furnishings, furniture and personal possessions from the residence.

When the motions were originally submitted, the court discovered that an application for an order of protection was being sent to the court for determination. An inquiry to the court confirmed the said information. In view of the fact that the actions concerned relief associated with the family court proceeding, the court referred them to the family court for hearing and decision.

Based on records, referral of the motions was not made without authority nor was it intended to enlarge the court’s jurisdiction. The family court has original jurisdiction over support proceedings and the applications for support and custody in matrimonial matters.