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Court Looks at Jurisdictional Issue in Child Custody Proceeding


A husband initially commenced a divorce proceeding in his place but the court declined to hear it since his children are United States citizens. The husband thereafter initiated the action again and an extensive decision of the court was issued on child custody and visitation.

A New York Family Lawyer said the parties have five children and at present, the four youngest children reside with the mother at a shelter, while the eldest child resides with the father at their marital residence. The parties are each in good health. An interpreter was also provided for the wife throughout the proceeding since she does not speak English. Even if the husband testified in English during the custody and visitation trial, he requested the use of an interpreter for the financial proceeding. The husband’s former attorney was relieved as counsel shortly after the decision of the matter was rendered. The attorney was then substituted.

During the party’s marriage, the husband worked in a construction industry which enabled him to financially support his family. Subsequently, the parties and their children traveled back to their hometown. The husband returned to the United States after two weeks, however, the wife and children were left at the husband’s parent’s house. Later, the wife and the youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family. The four eldest children remained with the husband’s parents. Thereafter, the marriage fractured.

A New York Custody Lawyer said that subsequently, the husband returned home to bring the four eldest children back to the United States. The wife and the youngest child also returned to the United States and moved directly into a domestic violence shelter, where the wife and the four youngest children presently reside.

The husband testified to grounds for the divorce issue. He testified that the wife ceased having sexual relations with him. The abandonment took place at the marital residence. The husband further testified that he has not had sexual relations with his wife since that time and he has requested that the wife resume sexual relations with him. He testified that his wife had no cause or justification for her actions and that there are no physical impairments to him having sexual relations with the wife. He did not condone or consent to her actions. The parties were married in a civil ceremony therefore there is no barrier to remarry. The wife remained silent, neither admitting nor denying the husband’s testimony. The court reserved its judgment pending the resolution of the ancillary issues.

Pursuant to the decision, the wife was awarded for the custody of her five children. The court also temporarily stayed the transfer of the eldest child who is 13 years of age. Further, the court is hearing multiple applications for modification by each of the parties on the said issues.

A Suffolk County Family Lawyer said the husband’s employment history prior to the marriage is not stated in the record. During the marriage, the parties’ sole source of income was the husband’s employment in the construction industry.

Previously, the husband incorporated his construction company. The husband claims that he held only a 25% ownership interest in the company from its formation, for which he contributed $10,000.00 of initial capital. He further testified that his friend and business partner held a 75% ownership interest, for which he contributed $40,000.00. The wife claims that her husband has always been the sole owner of the construction company and that he made an initial capital investment of $40,000.00 to the corporation.

The husband also claims that during the pendency of the action, he forfeited his 25% equity interest in the company to his business partner as a result of his mounting indebtedness to the company attributable to his personal use of corporate funds. The husband’s updated affidavit of net worth states that the husband is unemployed at the time. In his testimony, the husband stated that he has been collecting unemployment benefits in the amount of $409.00 each week.

On the other hand, a Suffolk County Child Custody Lawyer said the wife has no means of income. Throughout the duration of the party’s marriage, she stayed at home as a mother. She and the four younger children are residents at a shelter. The wife also contests the husband’s testimony regarding the company. She asserts that the husband is, and has always been, the sole owner of the business and he continues to own and operate the company. The wife contends that the husband is under reporting his income and ownership interest in his business. Regardless of the husband’s listing of the child support as an expense, he acknowledged that he has made no support payments.

The wife’s monthly expenses are $2,306.00 according to her affidavit of new worth. The wife’s total gross income is comprised of public assistance benefits of $238.00 per month in cash assistance and $675.00 per month in food stamps, and an unstated amount contributed by nonprofit organization toward basic household needs.

The wife requests an award of the child support for her children. The wife contends that the court should utilize an imputed annual income of $58,000.00 for the husband, less any maintenance award granted to her. The wife offers that her annual income in the form of public assistance is $10,956.00, plus any maintenance award granted by the court.

The husband however requests that the court may consider that his eldest child that is living with him and that he has lost his ownership interest in the construction company as well as the many subsidies of his living expenses which the company previously paid.

Afterward, the court appointed an independent expert business appraiser to value the construction company as of the date of the commencement of the action. The expert prepared a report, wherein she determined that the best approach to assess the company was the excess earnings method which is a hybrid income approach.

The expert testified that there were a number of documents or answers to questions that no response was received from the husband or the husband’s accountant. The husband argues the accuracy of the assessment conducted.

The husband asserts that the assessment incorrectly references to his original affidavit of net worth which lists his income. However, the expert testified that at no time was she advised that the husband’s affidavit of net worth was in error. He further contends that it was incorrectly considered payments paid through the business. However, the husband himself testified to using business funds for payment of personal expenses.

The husband argues that there is no longer any marital asset to distribute since his ownership interest was forfeited in the company exchange for his indebtedness. Based on records, the husband requests that if the court finds he has an ownership interest in the company and it is a marital asset subject to equitable distribution, then it should grant only minimal distribution to the wife because, he contends, her contributions to the business were in the form of overall contributions to the marriage and the parties only co-habitated for four of the 12 years of marriage.

Consequently, the decision of divorce is granted to the husband on the grounds of constructive abandonment. The child custody is however awarded to the mother in accordance with the decision.

Whenever you need legal guidance with regards your children’s guardianship, you can seek help from the NYC Child Custody Attorney or NY Family Lawyer. On the other hand, if you and your wife need assistance about your marriage, you can approach the New York City Divorce Attorneys at Stephen Bilkis and Associates.

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