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Plaintiff files for Order Directing Defendant to Leave Marital Home


A New York Family Lawyer said that, in an action for divorce plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide child support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A Nassau Order of Protection Lawyer said that, when the motions were originally submitted on April 30 last, we discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, we referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. On June 9, 1971, a Judge of that Court, after a discussion with counsel, returned the matters to us for determination. We have received and carefully reviewed the transcript of the remarks made on that occasion. The Judge said that what the Justice wants this Court to do is to determine everything but the fact that the divorce is granted.’ Surely, if the Family Court granted an order of protection it would render moot the request for exclusive occupancy and that determination would in turn affect the allowance for support.

The issue in this case is whether the action for divorce plaintiff’s motion to give her exclusive possession of the marital home and restraining the defendant from removing property therefrom should be granted.

A New York Divorce Lawyer said the court held that, referral of these motions was not made without authority nor was it intended to enlarge the Family Court’s jurisdiction. That Court has original jurisdiction over support proceedings (Family Court Act, §§ 115(a)(ii); 411) and the applications for support and custody in matrimonial actions referred to it by this Court (Family Court Act, § 115(b)). The Family Court Act, recognizing the obvious, i.e., that a husband is chargeable with the support of his wife (Family Court Act, § 412) and a father is obligated to support his children (Family Court Act, § 413), authorized the Family Court to require him to provide for their support as that court might determine (Family Court Act, §§ 442, 443). Furthermore, the Family Court may make an allowance for counsel fees in proceedings seeking support for the wife and children (Family Court Act, § 438). In actions for divorce, separation or annulment, the Supreme Court on its own motion may refer to the Family Court applications for temporary support (Family Court Act, §§ 461(c), 464(a)) or temporary or permanent custody (Family Court Act, §§ 467, 652).

In orders of protection the Court may provide not only that a person stay away from the home, spouse or child, it may also permit a parent to visit the child and require proper attention to the care of the home (Family Court Act, §§ 446, 842). The Family Court also has jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, etc., between spouses or between parent and child (Family Court Act, § 812).

A Westchester County Family Lawyer said that therefore, when these motions were referred to the Family Court, there was ample authority for that Court to act. Were the Family Court to refuse to decide these issues because they would touch upon matters to be heard in the matrimonial actions, the sections cited would have failed to serve the Legislature’s purpose. It is common knowledge that there is a continuing discussion that all matters touching on family relationships properly belong in the Family Court so that divided jurisdiction would be avoided. Plaintiff seeks an order giving her exclusive possession of the marital home and restraining the defendant from removing property therefrom. It was indicated in the transcript of the testimony before the Suffolk County Family Court Judge that an order of protection would be granted directing him ‘to stay away from the house–until he wants to pick up his files.’

A Suffolk County Family Lawyer said the affidavit submitted by the defendant states that he has been paying the plaintiff at the rate of $50 to $60 per week for the support of herself and the children though she avers that the payments are more like $10 to $60. She has an income and cash assets which may exceed his. On condition that he shall continue to support his wife and sons by paying her no less than $50 per week and the carrying charges on the marital residence, including the mortgage payments of interest, amortization, taxes, and the fuel and utility bills except for telephone service, her request for temporary alimony and support is denied. The defendant’s payments shall be made regularly on Friday of each week by check or money order mailed to the plaintiff at the marital home.

The order to be settled in conformity with this decision should afford an opportunity to the defendant to visit with his sons but away from the marital residence. We are mindful of the Family Court order which requires that he shall remain away from the petitioner. This presents some difficulty which we think can be overcome by providing that on every occasion for visitation the boys shall be delivered to the defendant either outside the marital home or at his place of abode.

It is of course most desirable that the parties should agree on the provisions for visitation. In the event that they are unable to do so, then each of them should submit a memorandum of their wishes in the matter and the Court will fix the same in the order.

If you want to file an action for divorce, seek the representation of a Nassau Divorce Attorney and Nassau Child Support Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

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