Manhattan

Published on: September 12, 2014

petitioner Files an Order to Compel Support

by Stephen Bilkis

A New York Family Lawyer said this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel support of a dependent minor child under the Uniform Support of Dependents Law in accordance with Domestic Relations Law, Article 3-A.

Also, pending before the Court is a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Divorce Lawyer said that in Queens County, the parties, formerly husband and wife, lived together during their marriage. Dissension arose between them, and the wife, the petitioner n this case, started a separation action, which was tried in 1959, and as a result, the court made a judgment dismissing her complaint. The custody of the infant daughter (then less than two years old and now four years old) was granted to her. The court issued an order directing the father to pay the mother for the child’s support the sum of $40 per week and allowing him weekly visitation.

Published on: September 3, 2014

The Issue in this Case is Whether Plaintiff Stated a Cause of Action

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney’s fees. Although Defendant submits no opposition papers to Plaintiff’s motion, Defendant affirmatively moves to dismiss the action “pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter.” Plaintiff opposes Defendant’s motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties’ two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child’s residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother’s residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties’ respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys’ fees on behalf of wife so as to permit her to have proper and sufficient representation.

A New York City Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

Published on: August 29, 2014

Husband Moves to Terminate Wife’s Visitation Rights

by Stephen Bilkis

A Manhattan Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband’s motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff’s visitation with the parties’ son to the extent of reducing her visitation rights and denied plaintiff’s cross motion to vacate the defendant’s motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:

A Manhattan Family Lawyer said that first, plaintiff should be allowed visitation with the child. The Special Term’s finding that plaintiff’s exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant’s motion insofar as it sought to eliminate all visitation rights.

Second, the Special Term’s finding that plaintiff’s visitation rights must be exercised in New York under supervised conditions since plaintiff had previously fled the jurisdiction with the marital issue and had disregarded prior judicial decrees is also correct. Plaintiff’s past history amply supports the conclusion that plaintiff will likely abscond with the child if permitted unfettered access. Based on the protracted record and extensive litigation here, a further hearing on this issue is unnecessary, as held in the landmark cases of McKinley v. McKinley and Heely v. Heely.

Published on: August 27, 2014

Defendant Proposes to Dismiss Case Under DRL 230

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney’s fees. Although Defendant submits no opposition papers to Plaintiff’s motion, Defendant affirmatively moves to dismiss the action “pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter.” Plaintiff opposes Defendant’s motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties’ two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child’s residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother’s residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties’ respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys’ fees on behalf of wife so as to permit her to have proper and sufficient representation.

The issue in this case is whether plaintiff fails to state a cause of action.

Published on: August 2, 2014

Court Decides Whether Child Support is Warranted

by Stephen Bilkis

A New York Family Lawyer said that, this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel child support of a dependent minor child under the Uniform Support of Dependents Law (Domestic Relations Law, Article 3-A). There is also pending before the Court a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Divorce Lawyer said the parties, formerly husband and wife, lived together during their marriage in Queens County. Dissension arose between them, and the wife (the present petitioner) started a separation action, which was tried in 1959, and resulted in a judgment, dismissing her complaint awarding her the custody of the infant daughter (then less than two years old and now four years old), directing the father to pay the mother for the child support the sum of $40 per week, and allowing him weekly visitation. A New York City Family Lawyer said that, it appears that the parties, after the rendition of this judgment, again lived together; dissensions again arose; about April, 1960 the wife left the husband, taking the child with her; thereafter she went to Florida with the child and both still live there.

A Manhattan Family Lawyer said that, in June, 1960 this proceeding was commenced in the appropriate court in Florida and transferred to the Children’s Court of Nassau County, where the father now resides. On November 2, 1960, an order was made, directing payment of $40 per week for the child’s support. This order was appealed from. On January 17, 1961, a further order was made, continuing the provisions of the order of November 2, 1960 and further directing payment of $20 per week for the support of the wife. It does not appear that this order has been appealed from. Up to this point, respondent (admitted to the practice of law, but employed and making his living as a salesman) had defended in person. A Nassau Child Support Lawyer said that, on April 6, 1961, by his present counsel, he moved to vacate the order of January 17, 1961, which motion was granted to the extent that on April 27, 1961 the provision of the order of January 17, 1961, providing for payments for the wife’s support was vacated as of March 27, 1961, when, the court had learned, the wife had obtained a decree of divorce in Florida and shortly after married; in all other respects the motion was denied. From such denial an appeal was taken. On April 27, 1961 likewise an order and an amended order were made, continuing the direction for payment of $40 per week for the child’s support; from all of which orders appeals were taken.

Published on: July 28, 2014

Father Requests Paternity Test

by Stephen Bilkis

A New York Family Lawyer said a man and a woman appeared for conference before the Support Magistrate when the respondent man requested genetic testing be conducted before admitting to paternity of the children. The court file reflects that the man told the Support Magistrate that, although the children refer to him as dad, he is requesting genetic testing because he would like to be sure. The Support Magistrate then assigned a Law Guardian, and the matter was adjourned for further proceedings.

On the adjourned date, a New York Divorce Lawyer said the court file shows that the Law Guardian advised the Support Magistrate that the children recognize the man to be their father and that he spent holidays with them. The man renewed his request for genetic testing before admitting to paternity. The matter was referred to the Family Court for determination as to whether the petitioner woman could invoke the doctrine of equitable estoppel to prevent the man’s request for genetic testing.

The court then set a schedule for submission of papers on the issue. The woman filed a notice of motion requesting that an order be made estopping the man, pursuant to Family Court Act from obtaining genetic testing to disprove paternity of the children.

Published on: June 4, 2014

Petitioner Brings Action to Transfer Title to Property in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Nassau County Supreme Court which, upon a decision of the same court made after a nonjury trial, adjudicated him in contempt of court, distributed the marital property, and awarded the complainant wife with maintenance and counsel fees. The notice of appeal from the decision is deemed a notice of appeal from the judgment.

A New York Custody Lawyer said it is ordered that the judgment is modified, on the law, by deleting the provision thereof directing the defendant husband to transfer the title of certain commercial property to the wife; as so modified, the judgment is affirmed insofar as appealed from, with costs to the wife, and the matter is remitted to the Nassau County Supreme Court for the entry of an appropriate amended judgment in accordance herewith.

A Manhattan Family Lawyer said in order to sustain a finding of civil contempt under Judiciary Law based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party. Here, the evidence was sufficient to establish that the defendant husband knowingly disobeyed the Supreme Court’s order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite (awaiting the litigation) support order. Consequently, the Supreme Court properly adjudicated the defendant husband in contempt of court.

Published on: January 9, 2014

Court Decides Whether to Modify Child Support

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, as limited by his brief, from so much of an order of the Family Court, Westchester County, entered October 31, 2008, as denied his objections to an order of the same court, dated February 13, 2008, which, after a hearing, inter alia, granted the mother’s petition for a modification of her child support obligation, vacated a prior order of child support nunc pro tunc to September 9, 2005, vacated the mother’s child support arrears, and directed the Support Collection Unit to stop charging or collecting child support against the mother.

The issue in this case is whether the court erred in modifying the child support obligation of the mother.

A New York Child Custody Lawyer said The Child Support Standards Act (hereinafter CSSA) (Family Ct Act § 413; Domestic Relations Law § 240) imposes a “basic child support obligation” upon a parent based upon numerical guidelines, and a rebuttable presumption exists that the amount of child support calculated under the statutory guidelines is correct. However, this presumption may be rebutted, and the support obligation adjusted, if the court finds that the noncustodial parent’s support obligation is “unjust or inappropriate” based upon its consideration of statutory factors set forth in Family Court Act § 413(1)(f). Such factors include, inter alia, the financial resources of each parent (Family Ct Act § 413[1][f][1]), the relative gross income of each parent (Family Ct Act § 413[1][f][7]), and “any other factors the court determines are relevant in each case” (Family Ct Act § 413[1][f][10]; see Domestic Relations Law § 240[1-b][f][1], [7], [10] [setting forth the same factors]). Where, after considering the statutory factors, “the court finds that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate” and shall set forth its reasons therefor in a written order.

Published on: November 3, 2013

Petitioner Seeks Support from Same Sex Partner

by Stephen Bilkis

This appeal presents the issue whether Family Court has subject matter jurisdiction to adjudicate a child support petition brought pursuant to the Uniform Interstate Family Support Act (UIFSA) by a biological parent seeking child support from her former same-sex partner. A New York Family Lawyer said it is held that Family Court possesses subject matter jurisdiction to hear such a petition.

A Manhattan Family Lawyer said the mother seeks child support from her same sex partner. According to the mother’s allegations, which must be taken as true for present purposes, the parties were involved in a romantic relationship in New York from 1989 through 1995, and cohabited during much, if not all, of that period. During the first year of their relationship, they planned to conceive and raise a child together, discussing, among other things, available methods of conception, child-rearing practices, and whether the child would be raised as a sibling of the same sex partner’s children from a prior relationship. In 1993, after many failed attempts, the mother became pregnant by artificial insemination. The same sex partner performed the procedure by which the mother was inseminated.

The mother gave birth to a son and her same sex partner was present at the delivery and cut the umbilical cord, and the parties shared the expenses associated with the conception and birth of the child. After the child’s birth, both parties participated in his care. However, four months after the child was born, the same sex partner ended the relationship. The mother, a Canadian citizen, moved into her parents’ residence in Montreal with the child. An attempted reconciliation in 1997 failed, although the same sex partner continued to provide the mother with gifts for the child and monetary contributions for the child’s care at unspecified times after the parties’ separation.

Published on: October 14, 2013

Court Rules on Wilfull Violation of Court Order

by Stephen Bilkis

In 1996, a paternity and child support proceedings were initiated against a man regarding a child, born out of wedlock. A New York Family Lawyer said the matter was scheduled but on the day the man failed to appear. After an inquest, the court entered an order declaring the man to be the father of the child and immediately referred the issue of support to a hearing examiner.

In 1997, the hearing examiner issued an order requiring the man to make weekly payments for the benefit of the child and pay the counsel fee within sixty days from the date ordered. A New York Custody Lawyer said the directive was duly served on the man by mail. In 1998, the man failed to make any payments in any way for the benefit of the child.

The county’s department of social services commenced an action against the man in the family court based on his willful failure to comply with the order.