Custody

Published on: September 5, 2013

In a Divorce Action Couple Deals with Mortgage Payments

by Stephen Bilkis

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, as directed her to delete the last paragraph from a proposed mortgage note and paragraph 20 from a proposed mortgage which were to be executed by plaintiff in connection with a transfer of defendant’s interest in the former marital residence.

A New York Family Lawyer said that the parties herein were married sometime in 1972, and have two children, presently aged 10 and 8, respectively. Marital difficulties arose thereafter and in 1981, plaintiff served a summons and complaint upon defendant seeking a divorce on the ground of cruel and inhuman treatment. Defendant interposed a counterclaim for divorce based upon constructive abandonment.

At an inquest conducted, a stipulation was entered into regarding the distribution of marital property, and child support.

Published on: September 4, 2013

Mother Applies for Social Services for Unborn Child

by Stephen Bilkis

Petitioner applied for public assistance and medicaid from the Nassau County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents. Without any factual determination concerning the amount of support actually furnished by her parents, the Nassau County Department of Social Services, by letter, notified petitioner that her application for eligibility for public assistance was being denied.

A New York Family Lawyer said following a fair hearing proceeding the hearing officer rendered a decision affirming the denial of assistance by the Nassau County Department of Social Services on the grounds that: When a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

A New York Custody Lawyer said that petitioner commenced this Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of respondents of 1) denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; (2) denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and 3) denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

Published on: September 4, 2013

Court Discusses Equitable Estoppel Doctrine

by Stephen Bilkis

This matter was referred to the court by a Child support Magistrate, for the purpose of inquiry into the question of whether the petitioner may invoke the equitable estoppel doctrine in this paternity matter.

A Suffolk County Child support attorney said that the court set a briefing schedule; all papers have now been filed and the court has marked this matter for submission and decision.

A New York Family Lawyer said the burden is upon the petitioner to prove, prima facie, that it is entitled to assert the doctrine of equitable estoppel. In support of its position, the Commissioner admits that on three prior occasions, dating from July 1999, the Commissioner filed three separate petitions seeking to establish orders of paternity and child support against this respondent, and that with respect to all three prior petitions, each was dismissed for failure of the assignor to cooperate and for her failure to appear on the various scheduled court dates.

Published on: September 3, 2013

Child Protective Services Claims Mother Incapable of Guardianship

by Stephen Bilkis

In this child protective proceeding, a County Social Services/Child Protective Services, seeks adjudication that the subject child is a neglected child within the meaning of FCA (Family Court Advisory).

A New York Family Lawyer said that by petition, CPS (Child Protective Services) alleges that the mother has placed the child at imminent risk of becoming physically, mentally and emotionally impaired, in that the mother’s seriously impaired mental condition renders her unable to provide adequate guardianship, supervision and care to the child. CPS further alleges that the mother has failed to secure suitable housing for the child.

The mother was served with the summons and petition but did not appear on the first court date. At that time, an order was issued placing the child in the custody of maternal grandmother, and an order of protection was issued restricting the mother’s contact with the child to visitation supervised by the Department of Social Services.

Published on: September 2, 2013

Father Incarcerated for Failure to Pay Child Support

by Stephen Bilkis

In a support proceeding pursuant to Family Court Act article 4, the appeal is from an order of the Family Court, Suffolk County, which directed that the appellant be imprisoned for 48 days. By decision and order, the court dismissed the appeal as academic.

A New York Family Lawyer said that pursuant to the 1985 judgment entered in the parties’ divorce action, the father was obligated to pay $250 a week in child support for their four children, or $62.50 a week per child. In 1989, the father petitioned for a downward modification based on their oldest daughter’s emancipation and because the father then had custody of the parties’ oldest son. The mother petitioned for an increase in support. Following a hearing which was held over a period of almost one year, the Hearing Examiner issued an order, which obligated the father to pay child support of $400 a week for the two children, who remained in the mother’s custody, retroactive to July 1989. Beginning in January1991, daughter’s 21st birthday, the father was required to pay child support of $300 a week for the son. The Hearing Examiner concluded that the testimony of the father, a self-employed certified public accountant, regarding his finances was not credible and imputed income to him of $150,000 a year. A New York Custody Lawyer said that since the order was made retroactive to the date the petition was filed, substantial arrears had accumulated. In an order, the Family Court, Suffolk County denied the father’s objections to the Hearing Examiner’s order.

The father appealed from the order and that appeal was transferred to the Appellate Division, Fourth Department. Later, while the appeal was pending, the mother moved for an order to hold the father in contempt for his failure to pay support pursuant to the order. A Queens Family Lawyer said the father, by cross petition, sought a downward modification of support. The matter was heard by a different Hearing Examiner than the one who issued the order, who concluded that the father failed to comply with the support order, that his noncompliance was willful, and that his testimony as to his finances was incredible. At that point, the arrears totalled over $46,000. In May 1993, the Family Court confirmed the Hearing Examiner’s finding that the father’s failure to comply with the prior order was willful, found him in contempt, and sentenced him to 48 days in jail unless he purged his contempt by paying $24,000 towards the arrears. The father served the period of incarceration and was released in July 1993.

Published on: September 1, 2013

Court Appoints Legal Guardian for Institutionalized Child

by Stephen Bilkis

The issue presented is whether the trial court properly relieved the complainant’s natural guardian and replaced her with an attorney.

A New York Family Lawyer said a two weeks-years-old infant was diagnosed with infantile impetigo. His pediatrician prescribed an antibacterial skin cleanser, to be rubbed into the blisters on the skin with each diaper change and then rinsed off. The infant’s mother claims that within 48 hours after she started applying the antibacterial skin cleanser, the baby became very irritable, with greenish stools and flaking skin. The mother used the entire 16-ounce bottle within nine days and thereafter renewed her prescription.

Subsequently, the infant’s pediatrician diagnosed the infant’s condition with diaper rash, but the mother claims that the pediatrician urged her to continue the use of the antibacterial skin cleanser. The infant allegedly continued to be irritable and have loose, foul-smelling, green-colored stool. Further, unusual body movements, such as twitching, stiffening, and staring were observed, and the baby was diagnosed with seizures.

Published on: August 31, 2013

Father Seeks to Obtain Child Support

by Stephen Bilkis

In a child support proceeding, the father appeals from an order of the Family Court which denied his objections to two orders of the same court which awarded the petitioner with child support based on a determination of his gross income and counsel fee.

A New York Family Lawyer said the order is modified on the law and as a matter of discretion, by deleting the provision thereof denying the appellant’s objection to the order directing him to pay a counsel fee in the sum of $20,000, and substituting a provision sustaining the objection to the extent of directing him to pay a counsel fee and deleting the provision thereof denying his objection to the order awarding the mother child support and substituting a provision sustaining the objection to the extent of granting his application for a mortgage payment credit against his investment income on his investment property; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court for further proceedings consistent herewith, including a new determination of child support.

Although the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless to be controlled by the equities of the case and the financial circumstances of the parties. Given the financial circumstances of the parties, as well as all the other circumstances of this case, the Family Court improvidently exercised its discretion in awarding the mother the sum of $20,000 in counsel fees.

Published on: August 30, 2013

Court Discussed the Need for Injured Father to Have a Legal Guardian

by Stephen Bilkis

A New York Family Lawyer said a couple obtained a divorced pursuant to a decision of the court. In addition, the condition also ordered that the father was obligated to keep and maintain hospital and medical insurance coverage, or better coverage, for the benefit of the children, as long as he is obligated to make child support payments. The decision further provided that the father shall claim his youngest child as an exemption on his personal income tax returns for income tax purposes as long as he complies with the terms of the condition.

Subsequently, a New York Child Custody Lawyer said a woman was appointed as the guardian of the father. Sources revealed that the need for a guardian was stemmed from injuries sustained by the father subsequent to the divorce action. The aforementioned order and decision authorized the establishment of a supplemental needs trust for the benefit of the father out of which certain expenses could be paid including child support, premiums for health insurance for the man’s children, life insurance premiums, medical expenses for the children and 1 1/2 of the annual college education costs at any state university.

The duties and obligations of the father owing to his former wife and his children, and his rights arising out of the divorce action, are defined by the condition of settlement. A Queens Family Lawyer in the mother’s application to modify those duties, obligations and rights by an expansion of the guardian’s powers, it is in effect seeking to have the court in the guardianship proceeding to modify the decision in the divorce action.

Published on: August 24, 2013

Ex-Wife Seeks to Increase Child Support

by Stephen Bilkis

In a matrimonial action in which the parties were divorced by a judgment, the defendant former husband appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, as, after a hearing, and upon a prior order of the same court, entered, which interpreted a child support escalation provision in a stipulation of settlement incorporated but not merged in the judgment of divorce, awarded the plaintiff a money judgment in the amount of $24,512, representing arrears in child support due and owing the plaintiff for the years 1984 through 1989, (2) from an order of the same court, which granted the plaintiff former wife’s motion for counsel fees in the amount of $9,450, and (3) purportedly from so much of the order of the same court, as denied his motion for counsel fees.

A Queens Family Lawyer said that the order of the Supreme Court, Suffolk County, denied the defendant’s motion for counsel fees. Since the defendant withdrew his notice of appeal from that order, his purported appeal from so much of that order as denied his motion for counsel fees must be dismissed.

In that very same order, the Supreme Court, in delineating the issues to be determined at a hearing to be held on the defendant’s motions, interpreted the child support escalation provision in a stipulation of settlement which was incorporated but not merged in the judgment of divorce in a manner adverse to that advanced by the defendant. However, that provision of the order, was not appealable as of right, since the hearing had not been held. Child support arrears allegedly due to the plaintiff based on the child support escalation provision were not determined until an order was entered, after a hearing, granting the plaintiff a money judgment for them. Since the defendant timely appealed from the order, his argument on appeal, to wit, that the Supreme Court erroneously interpreted the child support escalation provision, is properly before this court.

Published on: August 21, 2013

Petitioner Seeks Enforcement of Child Support Order

by Stephen Bilkis

In a proceeding pursuant to Family Court Act § 467(b), for enforcement of the alimony and child support provisions of a judgment of divorce of the Supreme Court, the ex-husband appeals from an order of the Family Court, Suffolk County, which rejected his objections to a Hearing Examiner’s order, which, inter alia, increased the amount of alimony and child support awarded in the judgment to the total amount of $250 per week.

A New York Family Lawyer said that the parties were married in November 1964. During the course of the marriage they had three children. The parties were divorced in 1979 pursuant to a judgment which incorporated but did not merge the terms of their stipulation of settlement.

The schedule indicates that it was the intention of the parties that the amount of money payable by the appellant ex-husband both for alimony and for child support was to decrease over time. A New York Custody Lawyer said the appellant, however, fell into arrears and in 1980 the respondent ex-wife obtained an enforcement order, and in 1981, a payroll deduction order, each in the total amount of $250 per week. The $25 reduction which was to occur in 1981 was never realized by the appellant as he took no action to challenge the 1980 enforcement order or the 1981 payroll deduction order.