New York Family Law Blog

Published on: December 21, 2013

Mother Appeals Father’s Reduction in Child Support

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act, the mother appeals from an order of the County Family Court which denied her objections to so much of an order of the same court, as, after a hearing, granted that branch of the father’s petition which was for a downward modification of his child support obligation as set forth in a stipulation of settlement, which was incorporated but not merged into the parties’ judgment of divorce to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month, and, in effect, denied her cross petition for an upward modification of the father’s child support obligation.

A New York Family Lawyer said the order is reversed, on the law and the facts, with costs, the mother’s objections are sustained, so much of the order as granted the branch of the father’s petition which was for a downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month and, in effect, denied her cross petition for an upward modification of the father’s child support obligation is vacated, that branch of the father’s petition which was for a downward modification of his child support obligation is denied, the mother’s cross petition for an upward modification of the father’s child support obligation is reinstated, and the matter is remitted to the County Family Court for a hearing and new determination on the mother’s cross petition for an upward modification of the father’s child support obligation; and it is further ordered that pending a new determination, the child support provisions of the stipulation of settlement which were incorporated but not merged into the judgment of divorce are reinstated.

A New York Child Custody Lawyer said the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. Generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Here, the father did not establish that the parties’ stipulation of settlement was not fair and equitable when entered into, and further failed to establish a showing of an unanticipated and unreasonable change in circumstances. Accordingly, the father was not entitled to a downward modification of his child support obligation as set forth in the parties’ stipulation of settlement, and the mother’s objections regarding the downward modification should have been sustained.

Published on: December 20, 2013

Court Looks at Jursidiction in Paternity Suit

by Stephen Bilkis

A New York Family Lawyer said the issue presented to the court is an interpretation of Section 521 of the Family Court Act, which states that whether the Family Court has jurisdiction when a non-resident petitioner child institutes a paternity proceeding against an alleged non-resident, who is found within a county of New York State.

A New York Custody Lawyer said the petitioner child was and still is a resident of New Jersey who has instituted a paternity proceeding against an alleged resident respondent father. The petitioner child, who has always been a non-resident, was born and has always lived in New Jersey. The respondent alleges that his only presence in New York State is that he works in Kings County.

A Westchester County Family Lawyer said the verified paternity petition was filed and a summons was issued and addressed to him and was sent by regular mail by the clerk of the court notifying him to appear on August 10, 1973. Upon the respondent father’s failure to appear a warrant was issued for his arrest.

Published on: December 19, 2013

Wife Seeks Sanctions Against Husband for Frivolous Behavior

by Stephen Bilkis

A New York Familly Lawyer said the couple was married and has seven children, one of whom is emancipated. The respondent husband, a physician, incorporated his successful plastic surgery practice as a subchapter corporation, for which he is the sole shareholder. The couple separated and a temporary order of custody was issued in Family Court by which they were to spend equal amounts of time with each of their children, and petitioner wife petitioned for child and spousal support. In April 1999, Family Court issued a temporary support order requiring the husband to pay—on a monthly basis—child support of $10,000 and spousal support of $1,000.

In May 1999, the wife filed for divorce and all issues regarding child support were consolidated in Supreme Court. Subsequently, the husband successfully moved to dismiss the divorce action. However, in its dismissal order the court also granted, among other things, a money judgment against the husband for arrearages in child and spousal support, continued the temporary support order and referred matters regarding child support back to Family Court. A New York Custody Lawyer said that on the husband’s appeal of those latter portions of the dismissal order, the Court left intact the husband’s obligations under the temporary support order including arrearages, and referred final issues of child support to Family Court.

In January 2004, a hearing was commenced in Family Court on the child support issues, resulting in an order by the Support Magistrate which, based on the disparate incomes of the parties, required the husband to pay 80% of all of the children’s expenses and required the wife to pay 20%. The Support Magistrate also ordered the husband to pay monthly child support of $4,491 and monthly spousal support of $1,500, and denied the requests of both parties for counsel fees; finding that the husband’s violation of the temporary support order was not willful, the court denied the wife’s petition to hold him in contempt. Both parties then filed objections to the Support Magistrate’s order, although only the wife specifically objected to the denial of counsel fees.

Published on: December 18, 2013

Petitioner Claims Invalid Service of Summons

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding for support pursuant to Article 4 of the Family Court Act. The clerk of the court mailed a summons to the respondent, directing him to appear for a hearing. No attempt at personal or substituted service was made prior to the mailing of the summons.

A New York Custody Lawyer said that the respondent has appeared specially and moved, pursuant to Section 3211(a) (8) of the Civil Practice Law and Rules, to dismiss the petition on the ground that service by mail in the first instance does not comply with the requirements of Section 427 of the Family Court

A Queens Child Custody Lawyer said Section 427 provides as follows: ‘(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service.

Published on: December 17, 2013

Court Discusses Juvenile Deliquency Proceeding Moved to Family Court

by Stephen Bilkis

A New York Family Lawyer said the respondent in a juvenile delinquency proceeding originated by removal to Family Court is not automatically entitled to inspect or to receive a copy of the minutes of any Grand Jury proceeding which must be transferred to Family Court when the case is removed.

In the first case, a presentation was made to the Grand Jury concerning the alleged participation of respondent and an adult, in robbery in December 1979. Pursuant to CPL 190.71 the Grand Jury requested that the matter pending against respondent be removed to Family Court and accused respondent of committing acts which, if committed by an adult, would constitute the crime of robbery in the second degree. A New York Custody Lawyer said the Supreme Court made and filed an implementing order of removal, and the matter was transferred to Family Court, Kings County.

Following arraignment, respondent by his Law Guardian moved orally to dismiss the petition for lack of jurisdiction on the ground that the forwarding court in making the transfer to Family Court had failed to forward a copy of the Grand Jury minutes, and further to inspect the Grand Jury minutes, a copy of which was then in the possession of the Corporation Counsel. Family Court denied both motions, and on application by respondent the Appellate Division granted permission to appeal, limited to so much of the Family Court order as denied the motion to inspect or obtain a copy of the minutes of the Grand Jury.

Published on: December 17, 2013

Mother Petitioner Child’s Petit Larceny Charge

by Stephen Bilkis

In April 1979, the Grand Jury of Kings County found reasonable cause to believe that respondents herein had committed acts which, if done by a person over the age of sixteen (16), would constitute the crimes of petit larceny, criminal possession of stolen property in the third degree, assault in the third degree and harassment.

A New York Family lawyer said that, petitions were filed in the above-captioned matters in the Intake a Part of Kings County Family Court. The office of Corporation Counsel of the City of New York appeared in support of the petitions and the Legal Aid Society was appointed to represent both respondents for the purpose of arraignment only. Stayed warrants were then issued for respondents and their parents, since they had failed to appear at the arraignment in this Court, per the Supreme Court order.

A New York Custody Lawyer said in the adjourned date, the two respondents and their mothers made timely appearances in this Court as did the Assistant Corporation Counsel and the Law Guardian (Legal Aid Society).On that date, with both respondents and their mothers present, the Assistant Corporation Counsel informed the Court that he was not ready to proceed to trial, since the complaining witness had failed to appear. Motions were therefore made on behalf of both respondents to dismiss the instant petitions. These motions are now before the Court and are the subject of this decision.

Published on: December 16, 2013

Social Services Seeks Guardianship and Custody of Children

by Stephen Bilkis

A New York Family Lawyer said this is a petition brought by an authorized agency under Social Services Law § 384-b[7] seeking to commit the guardianship and custody of the children, A (d.o.b. 1/14/91), B (d.o.b. 3/6/94), and C (d.o.b. 6/14/01) to the agency for the purpose of consenting to the adoption by their foster mother, who is their mother’s sister.

The respondent M is the children’s mother. The respondent F is the children’s father. The children came into foster care in July 2001, following C’s birth with positive toxicology for heroin. The children were then placed following the mother’s admission to neglect based upon heroin addiction.

The court at the time of placement in November 2001, directed that the mother enter an inpatient drug program and complete a parenting skills class.

Published on: December 15, 2013

Court Reverses Order Regarding Jurisdiction Issue

by Stephen Bilkis

Two cases of similar nature have come before the court for resolution.

A New York Family Lawyer said the first case is a child custody and visitation proceeding where the mother appeals from an order of the Family Court, Kings County, dated 20 May 2003 which granted those branches of the father’s motion which were to dismiss the petitions for modification of an order of visitation dated 2 December 2002 on the ground of forum non conveniens and an order of the same court dated 3 June 2003 which granted that branch of the father’s motion which was to dismiss a family offense petition for an order of protection against the father on the ground of forum non conveniens pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8.

The court orders the reversal of said orders, on the law, with costs. Also, those branches of the motion which were to dismiss the petitions are denied, and the proceedings are transferred from the Family Court, Kings County to the Family Court, Richmond County.

Published on: December 13, 2013

Father Seeks Full Custody

by Stephen Bilkis

On 22 September 2004, by order to show cause, plaintiff father moves for an order to modify the provisions of the parties’ judgment of divorce, dated 24 April 2002, so as to grant him full legal and residential custody of the child of the marriage, born January 1, 1997; appoint a law guardian to represent the interests of said child; and, directing that the residence of said child remain within the State of New York pending the hearing of this application.

A New York Family Lawyer said the order to show cause granted a temporary restraining order providing that the child shall remain in New York and shall not be removed from the jurisdiction pending hearing of the application. By order to show cause dated 20 October 2004, defendant mother moved for an order directing plaintiff to immediately return the child to her, as his custodial parent.

This case sprung from the marriage of the parties in Brooklyn on 31 October 1996. Defendant gave birth to the child on 1 January 1997 in Norway; defendant had returned to Norway to avail herself of health insurance coverage and to be near her family. A New York Custody Lawyer said the child and defendant mother returned to Brooklyn soon after the child’s birth and the family resided in Kings County, New York, throughout their marriage.

Published on: November 19, 2013

Family Court Discusses Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said the complainant husband seeks to modify a separation agreement entered into with his former wife. The defendant wife was granted child custody of their three minor children.

The issue before the court is whether it has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to entertain the husband’s application.

The parties were married in Rochester, New York and subsequently resided in this state as husband and wife. A New York Child Custody Lawyer said the three children were born in New York State during the course of the marriage. The parties entered into a separation agreement in same state. The separation agreement was incorporated into, but survived, a New York State decree of divorce.