Custody

Published on: September 15, 2013

Stepmother Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said the issue before the Court is whether a biological mother — who continues to pay child support but agreed to an order permanently suspending her visitation — has abandoned her children rendering her consent unnecessary to their adoption by their step-mother. By amended petitions filed, the petitioner step-mother seeks to adopt the children. By motion filed, the Respondent biological mother moves for summary judgment dismissing the petitions as she does not consent to the adoptions. On April 5, 2007 the Court granted the Respondent’s motion for summary judgment and dismissed the petitions. A written order was entered and mailed to the parties. This written decision memorializes the oral decision issued from the Bench.

The two children unfortunately have been entangled with the Family Court proceedings since early childhood. In 2000, the Respondent was found to have neglected her children. In 2001, there was a custodial dispute between the children’s father and the Respondent resulting in an order of joint custody with primary physical residency with the Father. A New York Child Custody Lawyer said the proceedings were then transferred to the Integrated Domestic Violence Part resulting in the current custodial consent order which grants sole custody of the children to Father and suspends the Respondent’s visitation, additionally ordering that the Respondent shall not seek visitation. The order also states that the Respondent and the Father must share access to the children’s records; and it is also ordered that the Father must keep the Respondent updated regarding issues with the children and provide the Respondent with the children’s school photographs. The Respondent also was ordered to pay $50.00 monthly in child support. The Respondent has consistently paid child support. The Father both has accepted the monthly support payments and has never petitioned for a modification of the Respondent’s support obligation. The children live with the Father and the Petitioner. The Father supports the Petitioner’s applications to adopt the children. The Petitioner contends that she does not need the Respondent’s consent to the adoptions because the Respondent has abandoned the children.

Petitioner can proceed with the adoptions only if she either obtains the Respondent’s consent or can prove that the Respondent has evinced an intent to forgo her parental rights and obligations as manifested by her failure for a period of six months to visit the children and communicate with the children or person having legal custody of the child, although able to do so.

Published on: September 14, 2013

Petitioner and New Husband Seek to Adopt Child

by Stephen Bilkis

The petitioner mother and her husband filed a petition for adoption, seeking the court’s approval of the proposed adoption of a child. The petitioner is the natural mother of the child and her husband seeks to adopt the child. The natural father of the child was incarcerated at the time of the filing of the adoption petition. He was released from a New York State correctional facility and he was personally served with the notice of proposed adoption at the home of his parents.

A New York Family Lawyer said the petitioner mother filed a petition to modify a prior order of visitation, and order to show cause, seeking to suspend all father’s rights of visitation, pending the proceedings on the separate but related petition for adoption. The order to show cause, suspending visitation until further order of the court was signed.

The respondent father filed a motion to dismiss the visitation modification petition, and oral argument was heard. Decision was reserved, and the court issued a written decision denying the respondent father’s motion to dismiss. A hearing on the adoption petition commenced and after five days of testimony, the hearing concluded at which time the court reserved the decision. The decision shall serve as the order of the court.

Published on: September 13, 2013

Defendant Appeals Order for Retroactive Child Support and Counsel Fees

by Stephen Bilkis

In an action for a divorce and ancillary relief, in which the parties entered into a stipulation of settlement in open court, the complainant appeals from an amended order of the Supreme Court which awarded the defendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support in the sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sum of $1,666.

A New York Family Lawyer said the amended order is modified, on the law, by deleting the provision thereof directing that the complainant pay retroactive child support in the sum of $24,199.20, and substituting therefore a provision directing that the complainant pay retroactive child support in the sum of $13,225.40; as so modified, the amended order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court for the entry of an appropriate second amended order in accordance herewith.

An award of counsel fees pursuant to Domestic Relations Law is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case. In determining whether to award counsel fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. A New York Custody Lawyer said the counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation.

Published on: September 12, 2013

Issue in this Case is Whether Court Erred in Granting Retroactive Child Support

by Stephen Bilkis

In an action for a divorce and ancillary relief, in which the parties entered into a stipulation of settlement in open court on December 16, 2009, A New York Family Lawyer said that, the plaintiff appeals from an amended order of the Supreme Court, Suffolk County, dated March 8, 2010, which awarded the defendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support in the sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sum of $1,666.

The issue in this case is whether the court erred in granting the retroactive pay of child support.

The court in deciding the case said that, an award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the ‘issue is controlled by the equities and circumstances of each particular case’. In determining whether to award counsel fees, the court should “review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions”. A counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The court may also consider “whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation”.

Published on: September 11, 2013

Issue in this Case is Whether Defendant Should be Held for Contempt

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment of divorce entered May 5, 2003, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County, dated September 2, 2008, which denied her post judgment motion to hold the defendant in contempt, sua sponte vacated the child support provisions of the parties’ separation agreement on the ground that they did not comply with Domestic Relations Law § 240(1)(b) and (h), and set the matter down for a de novo hearing on the issues of child support, child care expenses, and health care expenses, and (2) an order of the same court dated February 4, 2009, which denied her motion for leave to renew and reargue.

The issue in this case is whether defendant should be held in contempt for vacating the child support provisions in the separation agreement.

A New York Custody Lawyer said that, following almost seven years of marriage, the plaintiff and the defendant were divorced by judgment entered May 5, 2003, which incorporated, but did not merge with, the parties’ separation agreement, whereby, among other things, the plaintiff retained custody of the parties’ daughter, and the defendant was directed to pay child support in the sum of $250 per week. As a result of the defendant’s allegedly sporadic payments of child support, the plaintiff moved to hold the defendant in contempt of court pursuant to Domestic Relations Law § 245 and Judiciary Law § 753, for his contumacious failure to pay child support, thus accumulating arrears of $52,155.

Published on: September 10, 2013

Court Decides if Ten Day Notice to Quit is Valid

by Stephen Bilkis

A New York Family Lawyer said that, by motion dated January 5, 2009, respondent seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession. A Suffolk Divorce Lawyer said that, according to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner’s daughter-in-law and was married to petitioner’s son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a “beach cottage” located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land. Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent’s husband moved out. Respondent’s husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

A New York Custody Lawyer said the issue in this case is whether respondent motion to dismiss should be granted on the ground that she is not a licensee and therefore cannot be evicted in a summary proceeding.

The Court held that, pursuant to RPAPL 713 (7), a special proceeding may be maintained” where respondent “is a licensee of the person entitled to possession of the property at the time of the license, and his license has been revoked by the licensor.” Petitioner contends that respondent daughter-in-law was a licensee and that her permission to reside at the subject premises was revoked when he served the 10-day notice to quit. Respondent, however, claims she is entitled to possession because, as a family member of the property owner by virtue of her marriage to petitioner’s son, she is not a licensee.

Published on: September 9, 2013

Appellant Unable to Keep Up with Support Obligations Due to Unemployment

by Stephen Bilkis

In a proceeding pursuant to Family Court Act § 454 to enforce an order of support, appellant appeals from an order of the Family Court, Suffolk County which committed him to the Suffolk County Jail for a term of one month.

A New York Family Lawyer said that in a hearing to determine whether an order of commitment should be issued, the appellant testified to his lack of steady employment over the previous several months due in large measure, to his recent felony convictions. The appellant also provided information concerning his recent income and expenses, which included substantial amounts expended to make restitution in connection with his recent convictions. The Court find that the evidence provided by the appellant clearly demonstrated his present financial inability to make child support payments required of him. Under the circumstances of this case, the commitment of the appellant is unwarranted

A New York Custody Lawyer said that since December 1976, the appellant has been subject to an order of support for his child in the amount of $20 per week. Because of the appellant’s failure to make regular payments and the arrears which accrued, a petition for violation of the support order was filed pursuant to Family Court Act § 453. Following an inquest, the court found that the appellant had willfully failed to make the required support payments. No dispositional order was entered at that time but a warrant for the appellant’s arrest was issued. Thereafter, the order of child support was vacated retroactively, presumably because the parties’ child had reached the age of majority. The accumulated arrears were calculated at $2,532.

Published on: September 8, 2013

Appellate Court Contends Marital Property Not Properly Divided

by Stephen Bilkis

The parties were married in June 1973, and had one child, born on 1978. Sometime in 1985, the plaintiff husband moved out of the marital home. The wife cashed the parties’ joint certificate of deposit in the amount of $500. The husband took the parties’ 1984 Mazda pick-up truck, which was subsequently stolen, while the wife retained their 1982 Buick Skylark, which was worth $4000. Initially, a New York Custody Lawyer said the wife instituted a separation action in the Supreme Court, Suffolk County. After the husband brought an action for divorce in the Supreme Court, Nassau County, in which the wife counterclaimed, the wife abandoned her separation action. However, she was granted pendente lite relief of $40 per week in maintenance and $35 per week in child support by order of the Supreme Court, Suffolk County.

A New York Custody Lawyer said that following a trial on the Nassau County action for divorce, in which the husband withdrew his complaint for divorce in favor of the wife’s counterclaim, and after the parties entered into a stipulation providing for an equal division of the parties’ furniture and household effects and the proceeds from any court-ordered sale of the marital residence, the trial court found that (1) the wife was not entitled to an equitable share of the retroactive pay received by the husband because there was no evidence that the cash remained on hand or that it was converted into an asset, (2) the marital residence must be sold within 90 days to provide for the parties’ future living expenses and to pay off the marital debts, (3) the wife owed the husband $4,500 for her retention of the parties’ Buick automobile, valued at $4,000, and for her appropriation of their jointly held certificate of deposit in the amount of $500; the $4,500 was to be paid to him out of the net proceeds from the sale of the marital residence, and (4) the husband owed the wife $3,355 in retroactive maintenance and child support, which was also payable out of the net proceeds of the marital residence. Furthermore, the trial court ordered that the husband pay the wife $60 per week maintenance for a period of five years, and $70 per week in child support, but refused to provide for the payment of the child’s continued parochial school education.

At the trial, it was determined that the wife had been employed by a bank for 15 years. She originally worked full time and was placed in a career management program but had limited her employment to part time upon the birth of the parties’ child. Her 1985 salary was $7,809. The husband had been employed as a corrections officer for 25 months prior to the time of the trial. His projected 1986 salary was $30,732.

Published on: September 7, 2013

Court Referee Claims He Cannot Remain Impartial

by Stephen Bilkis

Respondent was admitted to practice by this court in 1967 and maintains a law office in. By a petition, petitioner, the Committee on Professional Standards, brings two charges of professional misconduct against respondent: (1) making false accusations and assertions against a Family Court hearing examiner in a letter; and (2) improperly communicating with the Family Court hearing examiner.

A New York Family Lawyer said after a lengthy hearing, the referee sustained both charges of misconduct and recommended that respondent be censured and that costs be assessed against him. Petitioner moves to confirm the referee’s report. Respondent opposes the motion and seeks dismissal of the charges.

A New York Child Custody Lawyer said that in December 1990, a resident of Ellenville in Ulster County, met with respondent to discuss a violation of child support petition which had been filed against him in Family Court in Suffolk County where his ex-wife resided. Said client had just appeared, on November 26, 1990, before Suffolk County Family Court hearing examiner in response to an arrest warrant issued after the client failed to appear on the return date of the violation petition. At the hearing, hearing examiner scolded him for his failure to comply with the Family Court’s child support orders and for his failure to appear on the hearing. He also used a threat of jail to emphasize the seriousness of the situation. He advised the client to get an attorney, released him, and scheduled a hearing on the violation petition. he was not accompanied by an attorney at the next hearing. During prior child support appearances before hearing examiner had been represented by retained and assigned attorneys and by a Legal Aid Society.

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.