Divorce

Published on: August 20, 2012

Wife Moves Florida has Emergency Jurisdiction

by Stephen Bilkis

A couple commenced an action for divorce and for child custody of their minor child. At the time of the action was initiated, the couple were living apart for several months. The wife instituted the action in Florida. She filed and received an ex-parte injunction enjoining either party from removing the child from the state of Florida and allowing supervised visits with the child. A New York Family Lawyer said the wife predicated her original petition on the grounds of domestic violence and the husband’s allegedly ordering the wife to take the child and reside with the maternal grandparents in Florida. Her petition in Florida has been revised to include the claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.

Afterwards, the court conducted a joint hearing to New York state domestic relations law. The wife was present at the courthouse in Florida with her counsel and the husband simultaneously appeared in Kings County where both parties were also represented by New York counsel. At the hearing both counsel conceded that New York was the home state of the infant based upon the fact that the child has not resided in Florida for six (6) months prior to the commencement of the action. The husband has persistently argued that the issues of custody and visitation should be argued at New York Court. Conversely, the wife maintained that New York is an inconvenient forum.

The wife predicates her claim of inconvenient forum from the issue that her husband had a history of domestic violence, he has exercised power over her and that the husband has refused to provide adequate support for the wife and the child, that there was an agreement for the wife to live with her parents in Florida and a concession that the issue of the child would be heard in Florida and same was confirmed in an e-mail from the husband.

Published on: August 19, 2012

Court Looks at Jurisdictional Issue

by Stephen Bilkis

A man married a physician in June 1985 in New York. They have one child who was born on July 1990 in New York. In June 1991, the man commenced a divorce proceeding, also in New York, which was settled on the record before the trial court in July 1991.

A New York Family Lawyer said that on December 1992, the parties executed a settlement agreement, the terms of which were incorporated by reference, but not merged into, a subsequent judgment of divorce. The settlement agreement provided that it is expressly understood and agreed that so long as one of the parties is a resident of the State of New York, the Supreme Court of the State of New York shall retain personal jurisdiction of the parties, of the child, and of the case, for all purposes.

Earlier in 1992, while the divorce was pending, the woman had moved to Louisiana and had sought, unsuccessfully, to have jurisdiction over the matter transferred to that state. Pursuant to the divorce judgment, the woman was granted sole legal and physical child custody, and the man was granted specified visitation.

Published on: August 18, 2012

Father Moves to Modify Custody Arrangement

by Stephen Bilkis

The parties were married in May 1998. They have a minor child who was born in the United States in January 2003. Both parties are enlisted members of the United States Army currently on active duty at the same army base located in the Republic of Korea, where they have been stationed since September 2003. On or about October 24, 2005, the father commenced the instant divorce action. A New York Family Lawyer said prior to commencement of the divorce action, the parties executed a marital separation agreement which was negotiated and prepared by their respective Judge Advocate General (JAG) attorneys. With respect to child custody, the agreement states that the custody of the minor child shall be shared jointly. The couple agrees that although the child may reside with the wife, both parties shall exercise joint care and control of the child and both parents may visit said minor at any and all reasonable times and places. The Non-Custodial Parent will provide 72 (seventy-two) hours notice before visitation. If less than 72 (seventy-two) hours notice is provided, the Custodial Parent will permit visitation if she/he is able to reasonably accommodate such visitation. The couple represents and agrees that the welfare of the child shall be the major factor governing all aspects of child custody and visitation rights and it is further understood that nothing shall constitute an abandonment of the said child by either of the parties. The couple agrees to consult one another with regard to any and all major decisions affecting the health, education and welfare in the best interests of said child.

The wife is the Custodial Parent. The husband is the Non-Custodial Parent. The Custodial Parent agrees to consult with the Non-Custodial Parent on such matters as major medical treatments and selection of schools for the child to promote the best interests of the child. A New York Custody Lawyer said the Custodial Parent shall exercise final determination over the matters.

The separation agreement also provides that the Non-Custodial Parent shall have the privilege, during visitation periods, to take the child home or on outings and excursions and with the Custodial Parent’s prior consent, can visit the child in their home. The couple also agreed to be flexible in their visitation arrangement, to endeavor to resolve all visitation conflicts in good faith and to make all reasonable efforts to accommodate the schedule of the other parent. Moreover, failure to reach mutual accord on a requested adjustment shall not constitute justification for the Wife or Husband to delay delivery of the child beyond the above schedule. With regard to potential visitation disputes, the couple reserved the right to petition a court of competent jurisdiction to resolve the issue with the goal of maximizing the time with both parents in order to carry out the intent of equal shared child custody; provided, however, that no modification will be implemented unless both parties agree or a court of competent jurisdiction so orders.

Published on: August 17, 2012

Child Custody Dispute Arises Over Mother Relocating

by Stephen Bilkis

On March 2007, a father filed an action in court for child custody. However, the mother cross petition the action. Each of the parties testified in their own behalf and the father of the child called his mother to stand as a witness.

A New York Family Lawyer said that n the evidence and testimonies presented, it revealed that the mother of the child was born and raised in Florida, where she lived with her mother and father until her parents got a divorce when she was 17 or 18 years of age. She continued to live with her father until she was 22 and got her own apartment. On 2002, she met the child’s father, exchanged phone numbers and began talking on the phone a few times a week. This continued for a few months until they actually met in person when the mother came with a friend to New York for a vacation. The father testified that they met up one night to hang out and had a couple of drinks. After the mother returned to Florida, the parties continued to speak over the telephone and on May 2004, the mother invited the father down to Florida for the weekend. Their relationship started and became intimate. At some point during their relationship, they made the decision to have a child together.

In October 2004 the mother learned she was pregnant. That same month, the father took his two-week vacation and went to Florida to be with the mother. A Nassau County Family Lawyer said he also brought his daughter with him. The couple discussed the possibility of the man’s moving to Florida so, while he was there, he looked for a job in maintenance by posting his resume on a Web site and checking the local newspapers. At the end of October 2004 the mother was terminated from her job as a general claims clerk for taking more time off from work than her allotted annual leave. The man then offered the mother to live in New York since he had a stable job and home there.

Published on: August 16, 2012

When Plaintiff Moved, Court Said She Gave Up Marital Property

by Stephen Bilkis

This case is being heard in the Supreme Court of the State of New York, Special Term, located in Nassau County. The plaintiff in the case is Theresa Huber and the defendant in the case is Adolph Huber. Both the defendant and the plaintiff have moved for summary judgment.

Case Background

A New York Family Lawyer said the parties were married in the state of New York in 1946. In 1959, the plaintiff wife moved to Florida and established a residence there. On the 11th of May, 1960, the plaintiff wife was granted an absolute divorce in the state of Florida. The premises of the couple during their marriage was sought to be partitioned.

Published on: August 15, 2012

Court Decides Lack of Jurisdiction Issue for Division of Property

by Stephen Bilkis

This is a case being heard in the Court of Appeals in the State of New York. The appellant in this case is Ellen Corcoran, who is the executrix of the estate of John J. O’Connell, deceased. The respondent in this case is Maureen O’Connell.

Case Background

The respondent, Maureen O’Connell was married to the appellant, the deceased John J. O’Connell in 1959. The couple had eight children during their marriage. Each of the children are now emancipated. The plaintiff moved out of the marital residence in 1982 and began a divorce proceeding in New York. This divorce procedure was based on inhuman and cruel treatment.

Published on: August 14, 2012

Court Decides Issues Need to be Bifurcated

by Stephen Bilkis

This is a divorce proceeding being held in front of the Supreme Court of the State of New York located in Westchester County. The defendant in the matter is Thomas Hannigan and the plaintiff in the case is Barbara Hannigan.

Case Background

A New York Family Lawyer said the plaintiff and the defendant are respectively 44 and 43 years old and have three children together. The children are 18, 13, and 11 years old. The couple was married on the fifteenth of June, 1985. The plaintiffs have begun this matrimonial action on the 20th of June, 2005. The main issue in this dispute is how the marital property of the couple is going to be distributed. The marital property includes a substantial amount of real property that they own as tenants by the entirety, the money that is located in a bank account that is only in the name of the plaintiff, and the value of the business owned by the defendant and the value of the plaintiff’s nursing degree and nursing license.

Published on: August 13, 2012

Plaintiff Asks for an Increase in Support

by Stephen Bilkis

This is a case being heard in the Special and Trial Term of the Supreme Court located in New York County. The plaintiff in the matter is Ethel Phillips and the defendant is Gilbert L. Phillips. The plaintiff is seeking a separation from the defendant, who is her husband. Ms. Phillips alleges that the defendant has treated her cruelly and fails to provide fro her. The defendant denies these allegations and has entered a counterclaim seeking an annulment from the marriage. The defendant states that their marriage should be annulled because the plaintiff was still married to another individual at the time the couple was married.

Case Background

On the last day of March in the year 1950, the plaintiff obtained a divorce from her husband, Mr. Moss. This divorce was obtained in the state of Georgia in the Superior Court of Richmond County. At the time of the divorce the plaintiff stated that she had been a resident of Georgia for over a year before instituting the action for divorce. However, the plaintiff was actually still a New York state resident at that time. A New York Family Lawyer said he had only been in Georgia for a couple of days and visited the state for the purpose of obtaining the divorce and no other reason. She had not established a residency in the state of Georgia. Moss, the plaintiff’s husband acknowledged the action in the Georgia court and did not contest the divorce. The decree from the Georgia court states that the divorce was granted to the plaintiff on the 31st of March, 1950. After the divorce took place, the plaintiff’s ex-husband Moss took on another spouse.

Published on: August 11, 2012

Custody Battles are Damaging to Children

by Stephen Bilkis

Jurisdiction is an important issue in child custody hearings. Often the parents of the child live in different court jurisdictions, or even different states. A New York Family Lawyer said the courts must work with the parents to determine which court system will have jurisdiction over the matters that are involved in each case. In one Suffolk County case, the parents’ divorce was finalized in the Nassau County Family Court in 2002. Following that action, the mother was granted primary custody of the child of the union. She relocated to Suffolk County.

Since the time that the divorce was finalized and the mother moved to Suffolk County, the Suffolk County Family Court has handled at least one motion to adjust the visitation schedule that the couple had in place to manage the visitation of the child. In 2008, the father of the child made a motion to the Nassau County Family Court to change primary custody over to him. The mother filed a cross-motion to deny the father’s motion and to have all jurisdiction over future motions transferred to the Suffolk County Family Court. The mother maintains that the father has moved to Suffolk County in the years since the divorce was finalized. A Nassau County Family Lawyer said that means that at the time of this particular motion, the mother, father, and the child are all living in Suffolk County and no one is living in Nassau County.

The Supreme Court reviewed the motions and determined that the proper venue of any motions in this case would be the Suffolk County Family Court. They contend that since all concerned parties are living in Suffolk County, it only makes sense that the court system to handle their case should also be Suffolk County. The court also appointed a Law Guardian for the child.

Published on: August 10, 2012

Parent Requests to Take Child Out of State

by Stephen Bilkis

The problems that arise when a family is divorced are endless. Not only do the parents separate and create new homes, but the children have to divide their time between two parents. When a divorce is finalized, a visitation schedule is created. A New York Family Lawyer said parents are required to create a visitation schedule and the courts ensure that the parents remain in compliance with the orders of the court. However, life is rarely a stagnant existence. Changes occur in every person’s life that can affect the application of a visitation schedule.

One of the most common changes to affect a parent’s life involves having to move to another state. Whether a person has to relocate for business, or personal reasons, if that person is divorced with children, the visitation schedule will have to be reviewed by the court. In fact, if the parent who is moving to another state is the primary custodial parent, it can even affect the move. A primary custodial parent must apply to the state of New York family court for permission to move with the child. The courts of New York strive to ensure that the best interests of the child or children is the most important issue that must be addressed.

When the non-custodial parent objects to the move, things can get even more complex. In one case that was heard before the New York State Supreme Court of Nassau County on October 26, 1998, a mother was transferred to a different state and applied to the court for permission to take her child with her. A New York Custody Lawyer said her ex-husband objected and countered the motion with one of his own. His motion was to have primary custody of the child transferred to him and a new visitation arrangement drawn up so that the mother could have limited visitation. On January 29, 1998, the mother’s request to move with the child to the state of Florida was denied. The mother had to fight for ten months to have her case heard on appeal. Ten months is a very long time when your job and your ability to keep your child is at stake. Finally in October, the Supreme Court of Nassau County prepared to hear her appeal of the trial court’s decision to deny her request to move with the child to Florida.