How long does an uncontested divorce take, we have assets to liquidate

Q: I would like to know how long it takes and what stipulation can be made when we have a house and credit card debt to get rid of before we are financially free to move on. We will need to sell the house to pay off debt. what about savings and any other accounts. She has a 401 but i don't have any of those type of assets 

A: David’s answer: If the two of you agree on division of assets & debts, then the type of stipulation you'll need is called a "stipulation of settlement." That said, you should be wary of any attorney promising to "finalize your divorce in 30 days." The Court usually takes 3-4 months alone just to sign-off on the judgment of divorce. Therefore, even if the other paperwork necessary for the divorce is done about as quickly as possible, the conservative estimate for either Westchester or Dutchess is 4-6 months.  -- David Bliven (www.blivenlaw.net) 

Can the mother of my childleave the state with out my consent (we were never married)

Q:  after years of searching i finally got the courts to summons her. when we appeard in court i found out that she had moved to texas. we were there only for childsupport. he was 4 years old when she left he is now 15 year old. she had her information confidential it is why i couldnt find him. i was under the usumption that he was in new york queens. 

A: David’s answer: At the time she left with the child, the answer to your question would have been a clear no, as you had visitation rights which otherwise would have been effected by the move. However, given the passage of time, it is now very unlikely New York will have jurisdiction any longer, meaning you will most likely need to litigate your visitation rights in Texas.  -- David Bliven (www.blivenlaw.net)

"can i file a restraining order against my husband's mistress that he lives with who keeps interfering with me & our relationship?

Q: he tells me he's coming back home but she is angry and he's confused as to what to do. She wants him to keep talking to her on the phone even if he comes back home. 

A: David’s answer: The law was recently amended to allow a person to file for an order of protection in Family Court with whom they have a "intimate relationship" with. Because you are neither related to the paramour nor yourself have an intimate relationship with her, it would be your Husband who would need to file for an order of protection against her if you choose to proceed in Family Court. Your only other remedy would appear to be to call the police & report it as harassment.  -- David Bliven (www.blivenlaw.net)

I had been caught with Marijuana by the security officer in school grounds, what will happen to me?

Q: Last week Thursday I went through the metal detectors and they asked for my wallet since it was made of metal. I forgot inside I had a bag of weed(it was a small bag and the amount of cannabis inside was just a bit of dust since it was crushed). They had me write out where I got it from and told me I will have to go to court and I will get suspended. I'm fifteen years old and my record is clean, I'm afraid of court and what will happen in there. Could I possibly be transferred to a school for bad kids or go to jail? Will I need to speak in court in front of people? I'm a nervous person and cry easily. 

A: David’s answer: If you're 15, there is a good chance the case will be sent to Family Court, in which case you & your parents should contact a lawyer in the Bronx who handles juvenile delinquency cases. A word of caution - at least some "criminal defense" attorneys rarley step foot in Family Court and therefore would be less equipped to adequately defend you. In terms of your question, if this is a first offense & you're doing well in school, it would be unlikely you'd go to jail or detention.  -- David Bliven (www.blivenlaw.net)

How can I file for divorce and get half of husband's pension without a fight?

Q: He works for the city of New York as a security officer..Since his second child I have not spoken to him. It's not a bad split but we do not speak. I just want what I am entitle too for myself and my daughter.


A: David's Answer: Assuming he has a competent lawyer as well, you do not necessarily need to have a "contested" divorce over such an issue. There are many divorce lawyers out there who seek to settle matters amicably & thus you should shop around to find one like that.  -- David Bliven (www.blivenlaw.net)

My question involves marriage law for the State of: New York is my marriage valid?

Q: My question involves marriage law for the State of: New York My husband was unaware that his marriage license to his ex-wife in Hawaii was on file as active. He thought that his marriage to his ex-wife was voided because she was already married to someone esle during their marriage union and during their marriage she had filed for divorce from her previous marriage while they were still together. They were both told that their marriage to each other was voided. So they both never did any paper work on thier marriage certificate. So they had went each other way. Now many years later he married me and we found out that his marraige to his first marriage was still active. Now he filed for divorce and his is officially divorce from his first marriage. My question is....is our marriage legal? Because during his first marrriage she was married and they both were told that their marriage was voided yet it was still legal even after she filed for divorce from her first marriage. 

A: David’s answer: A Good-faith belief is not what controls - if he was in fact married at the time he married you, your marriage is void. There is not necessarily a need, however, to annul your marriage, unless the Clerk's Office rejects your marriage certificate because there's already one on file. If that's the case, then you would indeed need to file for an annulment. Otherwise, in my opinion there's nothing prohibiting you from simply getting re-married at the Clerk's Office.  -- David Bliven (www.blivenlaw.net) 

Can i serve family court papers through the mail?

Q: i dont have anyone to serve visitation papers and i cant afford to pay to do it 

A: David’s answer: The short answer is that the papers must be personally served on the opposing party. If you cannot arrange for a friend or family member (who is not expected to be a witness in the case itself) to serve, then another option is to ask the NYC Sheriff's Office to perform the service (http://www.nyc.gov/html/dof/html/services/services_enforcement_serve.shtml). Their fee is about half the cost of a regular process server.  -- David Bliven (www.blivenlaw.net) 

Children remanded - cps was falsifying records - she barely made home visits - won my kids back - foster agency even confused

Q: cps remanded my children reasons were lack of financial stability due to marijuana use and non-medicated mental illness. cps stated my child was sent to school disheveled, dirty and smelly numerous times and was consistently rotating 2 sets of clothing. I spoke with the school's guidance counselor she said they reported he came to school once with a smell that was all. my child has enuresis and encopresis. Once was not enough for her to use as consistent, cps barely made home visits from Brooklyn to Bronx until her colleagues were charged with falsifying records etc. in the same office of were she worked. After removing my children she quit, April 2011 to DEC. 6 2012 my kids moved back with me in late august 2011. trial discharge in jan 2012 final by dec. 2012


A: David's Answer: What is it you're looking to do: are you looking for an attorney to represent you in Family Court) (assuming there is a pending case)? Or are you looking to file a lawsuit against CPS/ACS? In any event, I encourage you to call a Bronx Co. Child Custody lawyer to schedule a follow-up consultation.  -- David Bliven (www.blivenlaw.net)

I'm on ssi - i get medicad and food stamps - i need a child support lawyer - can i get one for free or for small payment?

Q: low income no help with rent we have 2 girls 19 and 15 we have 4 kids the boys are older neaver paid child support for the boys or the 15yrs old . there is a open case for the 19yrs old .dss open it. i dont recieve any case from dss. i need help


A: David's Answer: If you do not receive a cash budget subsidy for the children, then DSS will not generally sue on your behalf to reclaim Medicaid or Food Stamps. As such, if you wish to file your own case, just goto Family Court & file a petition. In terms of a lawyer, most lawyers in this field will not take the case for free. However, some offer sliding scales and/or payment plans, so I encourage you to contact a Westchester Co. Child Support lawyer to schedule a free follow-up consultation.  -- David Bliven (www.blivenlaw.net)

If a couple is divorcing can the wife make husband move out if she doesn't own the house?

Q:  I want my husband out of my home but my mother owns the house. What is the legal process to get him out the quickest. He is very controlling with the money. The bank account is under his name so I must ask for money whenever I need any. I need to start my life without him. He is causing me extra stress which is affecting my health, which causes me to have extra physical pain.

Additional information

We have two children, 13 & 10. They want to live with me but he may try to challange that. He does not want to use an attorney for the divorce, just a mediator. He claims because all the money will go to the attornies, not the children and me. I feel he will try to manipulate me so he can pay less support. I can't work due to my health so I will be applying for disability. I need to know what the best thing I can do to get him out and get the support my children and I are allowed.

A: David's Answer: First, I disagree with the posting that your mother can get him removed. Housing court is most likely not an option when dealing with a marital residence, even if he has no ownership interest. You would need to star a divorce case, then file a motion for exclusive occupancy of the marital residence. In terms of doing mediation, that can be considered, but if he's the one paying for it, you should at the least consult with an attorney of your own so you can ensure you're getting a fair deal.  -- David Bliven (www.blivenlaw.net)

How do I file a case against my son's school when his mother's name comes up as respondent in family court files?

Q: I want to enforce the existing court order about "free and unhampered access" which the school has denied, but the official court order only has his mother as the respondent.

A: David’s answer: First, depending on which school we're talking about, I'd suggest to set-up a meeting with the principal or superintendant & show them the certified court order. If they then refuse to abide by the order, you may ultimately need to commence an Article 78 proceeding in Supreme Court asking the Judge to order them to comply. That said, prior to rendering a definitive opinion, I'd prefer to see the order as well as what exact information you're looking to receive.  -- David Bliven (www.blivenlaw.net)

I want to sue my Foster care agency for Defamation of My Character, False Accusations, Discrimination. How can I proceed ?:

Q: I am a parent who has an ACS case and my children have been wrongfully Taken away from me under False accusations , I was charged with Neglect on my oldest son back in 05 but it was a minor case until 06 after my second son was born and taken away from me 5 days later due to false accusations that i left my son alone in the shelter , that situation was never proven and both of my sons were adopted by 2008 . Ever since i got an ACS case my foster care agency in Queens Forestdale Inc has been non cooperative with me for the past 7yrs , they have been Discriminating against me due to me being learning disabled and hearing impaired since birth . I want to bring out a Lawsuit for Pain and suffering due to all 4 of my sons being put up for adoption without me knowing & understanding my rights.

A: David’s answer: Prior to being able to bring a lawsuit, the attorney would need to assess whether there are court findings that you committed child neglect. Moreover, the attorney would need to see whether the court terminated your parental rights. If this occurred, then the issue of whether the agency dealt fairly with you or not needed to be raised & proven in the underlying Family Court case. If you have court findings that the agency made "reasonable efforts" to reunite you with your children & this failed due to your own actions/inactions, then your only remedy would have been to appeal, not file a lawsuit.  -- David Bliven (www.blivenlaw.net)

I use to have an order of protection in 2010 against my son's father and I didn't renew it

Q: he would pick our Child up whenever he had off of work he selling cars from dealer he never has time always clams he will pick his child up then calls claiming all this story's last nite I went over to drop his son off he called cops then talked to me telling me to wait for him cops came asking if I had called him fighting saying I would mess up his car that's not true he has not been in my life for a few years our child is getting older dont feel the need to have him in our life's nothing happen with the cops no report or anything but can he get visit ?

A: David’s answer: Whether the father can get visitation or not will depend largely not only on what the prior order(s) said, but also what the child's wishes are, as well as whether the father is willing to abide by restricted visitation at first. If the father does file a petition, however, I highly suggest that you file a counter-petition seeking an increase of child support.  -- David Bliven (www.blivenlaw.net)

Child support when does it stop?

In the divorce decree it states that my ex should give me $475 each month for the two kids. In the state of NY it is until they are 21 years old. One child will reach 21yrs old six yrs before the other one does. will he continue to give me the $475 when only one child will be under age of 21, also how can I get him to support them until they finish college which they wont finish by age 21 due to career choice.

Additional information

the divorce paper says "ordered and adjudged that defendant shall pay the plaintiff the sum of $447per month for child support commencing on the first of each month. it also says that the family court shall be granted concurrent jurisdiction with the supreme court with respect to the issues of maintenance, child support, custody and visitation". It say nothing about age only the part of health insurance talks about age of 21 . Can I still get him to help with college expenses even if I am earning more than he is.

 

A: David's Answer: In part, the answer to your question depends on what state issued the divorce decree. Assuming it was New York, then one would also need to know whether the child support provision in the decree was based on a stipulated agreement, and if so, whether the child supper was "allocated." In other words, did the agree provide a certain about for 1 child and another amount for the 2d child, or did the agreement at least say it was subject to modification when 1 child reached 21.  -- David Bliven


Additional Q: it just says ordered and adjudged that defendant shall pay the plaintiff the sum of $447per month for child support commencing on the first of each month. it also says that the family court shall be granted concurrent jurisdiction with the supreme court with respect to the issues of maintenance, child support, custody and visitation. what does this all mean

 

 

A: David's Additional Reply: The first part means its unallocated, but if its just an order but not a written agreement, this shouldn't pose a problem. The part about concurrent jurisdicition simply means you have a choice to file in either Family Court or Supreme, but its often faster & cheaper to file in Family Court. That said, I continue to advise you to bring in your paperwork to a Bronx Co. Child Support lawyer as no definitive opinion can be rendered without a review of same.  -- David Bliven

What do i need to do to see my son on a regular bases go to file for visitation rights for my son?

Q: about seven years ago i allowed my son to go and live with his father who lived with his mother his father got married and moved out of his mothers house my son alternated between the two houses but then the fathers marriage went south and my son went back to his grandmas house and since then i have had a problem with her when it comes to seeing my son she makes excuses why he cant visit me and his sisters and even when i sat down with her in person to do a calendar with her for every other weekend she still changes it whenever she wants i never signed any of my rights over to the father and he and i went to court before and i had custody

A: David's Answer: In this situation, you must file a petition at the least to enforce your visitation rights. You may also wish to think seriously about petitioning for custody. You should not let the situation persist any longer, however, or else the Judge will wonder why you waiting so long before coming to Court.  -- David Bliven

My wife threatened to take our two kids and move to her parents house which is out-of-state. No lawyers as yet. Can she do that?

Q: I had an affair and we are seeing a marriage counselor but last night we got into a big fight and she made a lot of accusations and said if I left her then she would take the kids and move to Connecticut to her parents house. We own a house together in New York, our son is 6 and is in school in New York and my 3 year old daughter is in day care in NY. My wife has a full-time job in New York. I am currently living in the house and we are trying to work on a separation while we seek counseling but the situation is unbearable. What are my options? Thanks you! 

A: David’s answer: If there are no court orders of custody, then the law sees both of you as the "de facto" custodial parent. Judges usually frown on parents engaging in a literal "tug-of-way" with the children, and thus may frown on her taking the children far away, perhaps even ordering her to return the children to the marital residence pending a fuller hearing on the issue of temporary custody. All that said, your next move should be to file for divorce & also file a motion restraining her from leaving the marital residence with the children. If you allow her to do so & do not do anything about it, you'll already be behind the "8-ball" in the custody case itself.  -- David Bliven

Custodial Parent Intereference NYS. Need Help Please!

Q: My ex and I are supposed to equally share our daughter's upcoming holiday break. He is not allowing her to sleep over and is refusing to allow me to pick him up at my schedueld time (according to the c&v papers) because he would like to take her to a holiday party which is schedueld to start when our daughter is with me. Is there anyway to file an emergency clarification or visitation? My ex continues to tell me that our daugther can decide what she wants to go on my weekend. 

A: David’s answer: Yes, you can file an "order to show cause" with the Family Court. Be sure to bring in a copy of the order. Also be prepared to document (via copies of e-mails, texts or letters) your attempts to rectify the matter without resort to court intervention. -- David Bliven

What do I do if I am ask by a judge to visit with my child in virginia and I don't have the financial means to do so?

Q: On June 2010 my sons father was awarded custody of my child in the bronx, new york courts, he resided in New Jersey at the time but on November '12 he passed away in Virginia and the grandmother refused to give me my child, so I went to court and filed for a writ and I now have an upcoming court date, but I am afraid that she will be granted a temporary custody extention based on the fact that she was already granted temporary custody in the Virginia courts from November '12 until January '13. If the judge was to grant me the right to at least visit with my child there would be a problem and the problem is that I am not financially stable to travel to Virginia. What can I do if that situation was to arise? I don't want the judge to think I don't care about my child just because I can't travel.

A: David’s answer: Most likely the Court will not order the granmother to travel back to NY with the child, but you can certainly ask. In this situation, I would at least suggest for you to consider cheap options to go down to Virginia (such as low-cost buses). Otherwise, the Judge will wonder whether you have the financial means to support the child, even if the Judge were inclined to give you custody.  -- David Bliven

I need legal representation by Monday morning for family court

Q: I was served with an order of protection on Friday at 3am, and I have to appear in family court on Monday at 9:15am

A: David’s answer: You should then strongly consider contacting a Bronx Co. Family Law attorney as soon as possible, as most will require you to come in for a consultation before being able to represent you. If you are not able to hire a lawyer beforehand, then ask the Judge for an adjournment in order to hire an attorney. The Judge cannot hold any kind of trial without ensuring you are represented.  -- David Bliven

Can my sons grandmother be granted sole custody of my child?

Q: Back in 2007 my children were removed by acs because my son walked out of the apartment for the second time around when he first walked out of the apartment it was while he was under my daughters father supervision and acs asked for proof of my reason to why I left my daughters father in care of my son then 3 months later he walked out of the apartment while he was under my supervision. On 2010 my sons father was awarded custody of my child and dissapeared with him on January and July of 2012 he allowed me to see my son after many attempts of me trying to get a hold of him in order for me to visit with my child I also petition twice once for visitation rights and then for custody but, I then find out on Nov 19th that my sons father passed away and the family won't return him back to me. 

A: David’s answer: You have a right to file for custody, however ACS also has a right to be heard on that application if there was a prior finding of neglect. Thus, you should be prepared to demonstrate what efforts you have made to rehabilitate yourself from the time when the original neglect case occurred.  -- David Bliven

Is it legal for a lawyer from Virginia to send via mail an order of motion?

Q: My sons father was awarded custody on June 30,2010 in the Bronx county family court and he resided in New Jersey, he passed away in virginia on November 17,2012 and the family is claiming that he has been living there(in virginia) since June 2012 and that my son has been attending school in Virginia since September 2012 therefore they are asking for a motion for opportunity to present facts and legal arguments pursuant to Virginia code 20-146.9v and to determine jurisdiction pursuant to Virginia code 20-146.18 

A: David’s answer: Whether service is valid depends on Virginia law, so I highly advise that you also consult a Virginia attorney. That said, if you wish to petition for custody & have the case heard in the Bronx, then I also highly suggest you consult a Bronx Co. Family Law attorney to discuss filing a counter-petition here.  -- David Bliven 

Can I file a case against the CPS workers for violating state regulations?

Q: They keep having me do the same programs again: I relapsed twice I did a fatherhood course and completed a drug program. This was in my disposition when I discussed this with my attorney his counsel was ineffective and when I asked him about putting in a motion he said it would be frivolous. CPS keep implementing these programs already completed 

A: David’s answer: If you completed a drug program already, they generally cannot require you to complete a 2d program. You would not necessarily have a lawsuit against CPS/ACS however. Your much better approach at this point would be to consult with a Bronx Co. Family Law attorney about filing a petition to modify disposition and/or a petition to terminate placement.  -- David Bliven

Can a divorce attorney be as low as 800.00 dollars?

Q: if so can someone please provide me with a phone number i could reach them.: i need to file for divorse as soon as possible at low rate. Thank you

A: David’s answer: I would be wary of an attorney charging that low, even for an uncontested divorce. While some lawyers have sliding scales (as do I), the reality is that Westchester Co. is not only an expensive county to live in, but also an expensive county to practice law in. If an attorney charges that low, odds are s/he is either a relatively new attorney, or is a mill (meaning they process hundreds of uncontesteds per year and are thus arguably more prone to mistakes). You should thus go into such a situation with a fair degree of skepticism & be sure to ask the attorney questions: (a) who does the work on the case, (b) what is the attorney's current caseload [anything more than about 70 cases is probably too much] & (c) is the $800 a flat-fee - and if so, what happens if & when additional work is necessitated?  -- David Bliven

Can I open a divorce case and then withdrawed without any penalty or consequency from the state's court (White Plain Sup Court)?:

Q: I opened a divorce case but now I wish to close it, because the court laws and regulations are turning against me.

A: David’s answer: It depends on whether the other side has answered with a counterclaim and/or what stage the cas is in. Additionally, even if permitted, there is a $35 court fee to withdraw a case.  -- David Bliven

So im 17 years old, i turn 18 in 10 months, i want to know the process on how i can possible get emancipated?

Q:  so my mother abuses me, emotionally, and on some occasions even physically, i understand that sometime you as a parent have to discpline your child, but she does it over the top, me and her argue every single day. she doesnt support me on my college work, and i just cant deal with her any more and this has been going on for about 4 years now, i do hold a steady job, and i am currently on track to graduate in june 2013 , what do i need to be able to emancipate my self

 

A: David’s answer: If you have graduated from high school, as you imply, then you can simply move out. Be sure to report the emancipation to your financial aid office, as there may be a form to fill out to obtain additional financial aid.  -- David Bliven  

What do I have to do if my sons mother refuses to let me see him?

Q: I pay my child support I haven't had a problem with the law?: I see him once a week under her supervision. She hasn't let me spend any holidays or birthdays with my son. She agreed to let me have him with me for christmas eve. And now she refuses ... if I go to pick him up and call the cops, what will that do?

 

A: David’s answer: Do you have an order of visitation? If yes, then you may file a violation petition if she refuses the visit. Why is your visitation supervised? If there's no good reason, I'd highly suggest to file for an order of unsupervised visitation.  -- David Bliven

How much should a father who is making 9.00 an hour pay for child support?

Q: only make $9.00 an hour. My support was 50 a week. The baby's mother said it wasn't enough and took me back to court. The judge lower the payments. In her anger, she took me back to court and the magistrate increased it to 99.00 per week. I cannot afford to pay that much money. My salary is very low. I do the best I can for my son, as a matter of fact, I was paying her support and she still took me to court and this is when the first judge lowered the payment. Now , without an increase in my salary, the payment has doubled. Please advise. I cannot afford to pay a lawyer


A: David's Answer: My question is whether you do any overtime? If you do, all income counts for child support. If you know your total income, you can determine what the proper amount should be via this website: http://www.nyc.gov/html/hra/html/directory/child_support_calculator.shtml.  Additionally, you should be aware that you only have 30 days to file an Objection Appeal to the Magistrate's decision, so you must move fast. Even if you can't afford to hire a lawyer, it's nonetheless wise to schedule a consultation to discuss whether it's worth it for you to file the appeal.  -- David Bliven

How long it takes to get the divorce in the Bronx?

Q: how do I go about this divorce?

A: David's Answer: In the Bronx it takes about 6-8 months to process an uncontested - most of that waiting time is for the Court to sign-off on the proposed judgment of divorce. Your case may take longer if there is either children and/or property involved.  -- David Bliven

I am a Grandparent that has petitioned court for visitation. court date is Dec. 14th. What sort of documents should i bring?

Q: I have not seen or spoken to my daughter since April. She is angry with me and refuses to let me see my Grandson. I live 4hrs away and I usually take him when I have my vacation time. We are very close.

A: David's Answer:  If the case is on for the 1st time, there is usually no documentation necessary. Ultimately at trial you will need to present witnesses and evidence supporting your (presumed) contention that you have developed a close, loving relationship with your grandchild.  -- David Bliven

I am filing form 6-1 for guardianship in New York

Q: what is the difference between "guardian of the person" and "permanent guardian"?  Also, if there is no difference why does the form have two boxes you can check to select either guardian of person or permanent guardian?

A: David's Answer: Per footnote 1 of the petition, "a 'permanent guardian' may be appointed, pursuant to Family Court Act §661(b) and Surrogate’s Court Procedure Act §1702(2), if the Court finds that it is in the best interests of a person under the age of 21, who has been committed to an authorized agency through termination of parental rights or surrender or whose birth parents or other persons entitled to notice of, or to consent to, adoption are deceased."  A "guardian of the person," on the other hand, is roughly the same as requesting custody.  -- David Bliven

I would like to know if I can see or contact my children if they are 16 and 17, but have been adopted?

Q: How can I find out if I still have restraining order and if I don't can I see them or contact them or call them or write to them? Or would I get arrested? Do I have to wait a certain period of time?

A: David's Answer: To see whether you have an order of protection, you must go to the Family Court which originally had the termination case to verify same. If you do not, then whether any contact would be permitted is up to the adoptive parent. That said, it's unlikely s/he would permit such contact.  --  David Bliven

i am disabled, i'm a stroke surviver, i have diabetes, and pay what more can i have. i dont have an income

Q: my wife struggles all by herself and this kills me. how could i pay child support mysons, are adults now and we have agreat relationship how do i get pass this.

A: David's Answer: Presumably if your children are adults, then what your current wife is paying (on your behalf) are the arrears. Unfortunately, once arrears accrue, the Court may not vacate them. That said, perhaps you can "make a deal" with the mother to reduce the amount of arrears or at least reduce the monthly/weekly payments which are due.  -- David Bliven

What is the proper way to write a judge about an ongoing birth certificate amendment case?

Q: It's been more than sixty days

A: David's Answer: More information is needed to be able to answer this question. For instance, is this a paternity case? In Family Court? Are you awaiting a decision from the Magistrate or Judge? If so, then Judges routinely take more than 60 days to render a decision, at least in busy NYC courts. Indeed, sometimes the decisions take 3-5 months. That said, you may always call the Judge's Part Clerk or write a letter (be sure to copy it to the other side & indicate you're doing so on the letter) to see if a decision has been reached.  --  David Bliven

The father of my child trying to get full custody of our 2 kids what should I do or expect or should I not worry too much?

Q: He wants to do this out of spite because I moved on he doesnt like my current boyfriend but we have been together 2 years already recently he got into an altercation with my current boyfriend which involved the police he got arrested on the scene I was told I was a witness to what happened but when I arrived I was arrested as well he works for the court system and used his position to have me arrested he then petitioned for full custody, yet he has not seen his children when he is supposed this all happen out of no where we where getting along great and something in him just snapped he has two jobs and lives in a rented room and at times stays at his mother house i was suspended from my job because of this i am the one who takes my kids to school feed them everything what is going to happen?

A: David's Answer: Anytime a parent is petitioning for custody, it is a complex case for which you would greatly benefit from having an attorney represent you. There are certainly witnesses & evidence which you should muster on your behalf, and an experienced Family Law attorney can guide you through this process.  --  David Bliven

I have a daughter who is 20 years old. She's now pregnant. She's also in college. We live in NY. Do I still pay child support?

Q: My daughter lives with her mother. My child's mother and i went to court together years ago to make child support payment arrangements. The mother chose to have continued payments to her out of court due to child support services not paying her for 5 years although payment was being taken out of my salary on a weekly basis. Child support services paid her the arrears. My daughter is now 20 and has become pregnant. Do I still need to pay the weekly child support her mother and I agreed upon my paying?

A: David's Answer: You must continue to pay until the order is vacated. Merely because your daughter is pregnant doesn't mean you can vacate the order, however. Whether you can or not depends on whether the child is emancipated, meaning she's self-supporting, or has moved out of her mother's house & is being supported by the father of her child, etc.  --  David Bliven

If a man is disabled but is having a hard time getting SSI, and he owes $15,000 in child support, what can he do?

Q: My nephew is disabled for a number of years now. He worked for a while before his back went out and he had surgery but is no better. SSI denied him benefits and he owes $15,000 in back child support, what can he do?

A: David’s answer: If he was denied SSI/SSD, then he can try to either apply for NYS disabilty, or alternatively if he cannot find a job then he must apply for public assistance. If he cannot get P.A., then he's best advised to make his best efforts to find a job within his limitations.  -- David Bliven

Do I need a job in order to get physical custody of my children?

Q: Today I called my children today and my daughter is terrified to speak to me. I was laid off in August 2012 and I am currently receiving unemployment...etc. I wanted to know if their is a sufficient income amount I must make in order to get physical custody of my children? Because I am apprehensive of going back to court because he makes significantly more than I do. However, there has been one significant change I currently reside in my own apartment as opposed to before.

A: David’s answer: Having income betters your chances of getting custody, but merely subsisting on unemployment does not preclude you from getting custody if you otherwise have a meritorious case. The reason is that you'd be getting child support from the other parent to supplement your unemployment compensation if you win custody. That said, custody is a relatively complex case which you should not attempt to handle on your own.  -- David Bliven

I am a parent who pays child support in NY state. Can i file for a modification in child support when my child attends college

Q: Child is 18 years old and will receive a full scholarship to an out of state 4 year college. Could i file for a reduction in support, or have a portion or all of the support put into an account for my child?

A: David’s answer: The answer to your question depends in part on whether the child will be going away to college and if that's the case how often the child will be returning. To answer the question definitively I would also like to know whether the original order was part of a written divorce settlement - or just a mere order. Finally, one would need to know whether there are other chidren still at home that you are supporting.  -- David Bliven

Can someone with Temporary protected status be a guardian for special immigrant juvenile status?

Q: My nephew came to the US and neither of his parents can or will take care of him. He is 15 and I heard about special imm juvenile where the family court orders me the guardian but can I be the guardian in NY. I am not a citizen or even a resident but have TPS???

Asked 3 days ago in Immigration

A: David’s answer: To qualify for SIJS, you would need to file for guardianship of him and have the Court declare that his parents legally abandoned him. His parents would need to be served with that petition. The fact that you are TPS MAY be a factor the Court will consider. The Judge in your case would be rightly concerned about what happens with this child if, prior to him reaching 18, you lose your TPS and then the child no longer has a guardian (as you would be legally obligated to leave the country).  -- David Bliven

Is any penalty for bigamy in the state of New York & how you report the bigamy, also this person commit fraud insurance.

Q: man first marriage in ny second in florida never divirced first wife and added second wife on his insurance in order for her to gave birth.

A: David’s answer: Bigamy is still a crime in New York, and you can report it to the police. Whether the police will actually make an arrest may depend largely on whether he knowingly married the 2d person when 1st marriage was not terminated. In any event, if you are either the 1st or 2d wife, I highly advise you to consult a Bronx Co. Divorce attorney.  -- David Bliven

How can my sister gain custody of her son after the father whom had custody died?

Q: My sister son's father won custody of their son, the problem is that he got killed a few days ago. While he was alive he made it impossible for my sister to see her son, he lived in NJ & she lives in NY. The court of NY granted her visitation rights, but he failed to show up at meeting locations. Now he is dead and his family has her son..what should she do to get her son with her. In addition she doesn't have the family's address, what should she do to obtain that information?

A: David's Answer: As a practical matter & with due respect to the tragic situation, perhaps as a first measure she should simply reach out, express her condolences & then ask if her son can be returned. If that doesn't work (or they turn hostile), then she should absolutely file a custody petition. She may do informal computer searches to obtain the addres, or alternatively hire a private investigator.  -- David Bliven

My ex filed a petition in family court for a QDRO, I was never served me. Is it legal? Magistrate signed didn't check aff of service

Q: Magistrate didn't check to see affidavit of service. My pension company sent $3,000.00 dollars when it should have been $300.00 Was this legal? Can it be vacated?

A: David's Answer: You should have been served with the petition as well as the order. Your remedy is to file a motion to vacate your default, which you need to do within 1 year of the date of the QDRO (but as a practical matter you should do so asap).  -- David Bliven

We never married but have a child. Now i'm married, Can ex claim additional support based on total income of myself and wife?

Q: the child is now 10 years old. and i have been married for 4 years and have a 3 yo with wife.

A: David's Answer: Bottom line is that support is only based on your income. That said, you should also be aware that you would not generally qualify for a decrease based on the expenses of the 2d child either (as it works both ways). Moreover, you should be aware that the issue of child support (if based on an order) may now be re-visited once every 3 years.  -- David Bliven

Should there be paper work when Cps places a child in your care or removes a child from your care without the courts?

Q: Cps placed child in grandparents home after mother was arrested ( but out of jail) child neglect case against both parents court date nothing said in court about child being returned to parent but then mother came to retrive child on words of her laywer without cps being aware. Cps talked to someone and then changed what he said and child was placed back with mother. should there be paper work of any kind that for the grandparents

A: David's Answer: If there is a neglect case in court, then there would indeed be a court order of some sort. That said, there may/may not be a court order specifically designating you (as the grandparent) as the temporary custodian. You should also be aware of your rights as a possible kinship foster parent and the right to receive subsidies for caring for the child. -- David Bliven

In New York State who would get guardianship of an orphaned 14 year old boy - His Grandparents or his 24 year old half sister?

Q: For the past 5 years, my grandson, Elijah, has been living with me and my husband (his paternal grandfather). Three years ago Elijah's mother passed away and just recently my son (Elijah's father) also passed away leaving him an orphan. My grandson has a half sister; who is 24 years old and has 2 children of her own. All of us live in New York City. My question is: In New York State who would get guardianship of an orphaned 14 year old boy - His paternal Grandparents with whom he has been living with for 5 years or his 24 year old half sister with whom he would prefer to live?

A: David's Answer: The Court would strongly consider that the child has been in your care for that length of time. That said, given the age of the child, his wishes will be a strong countervailing factor. Ultimately if a settlement cannot be reached, a trial will be necessary.  --  David Bliven

My first name is misspelled on a child support enforcement order. Am I obligated to pay if theres a clerical error?

Q: My first name is misspelled on a child support enforcement order. My middle and last names as well as the address are correct. They are not garnishing my wages or putting a hold on my bank acct. My question is due to their clerical error am I obligated to pay the arrears that accrue since they cannot locate me due to my name being misspelled. for instance my first name is Cotler but the order says Coler. If I would still be responsible how do I get this problem fixed where funds can be withdrew from wages.

A: David's Answer: You are still obligated on the order. In terms of correcting the order, you can simply notify SCU of the discrepancy or file a petition & get the Magistrate to amend the order.  --  David Bliven

How can I copy the ud-11 form to make an amended divorce judgment. County clerk said this what I need to do.

Q: Divorce was filed with my married name spelled wrong. Hard to change name back when divorce has different name and legal documents have another name. It's off by one letter. I was told to copy and add a pargraph to the final divorce by copying the divorce over and change final judgment to amended divorce

A: David's Answer: It's hard to tell you specifically what to do without seeing the provisions you're talking about to see exactly what the error was. Most likely there is also a correction sheet given to you by ther Clerk's Office. Thus, I highly advise that you consult a Bronx Co. Family Law attorney.  --  David Bliven

I AM TRYING TO ADOPT MY STEPSON BUT I DONT HAVE MONEY FOR LAWERS FEE WILL SOMEONE TELL ME WHICH FORM TO START WITH IN NYS

Q: WILL SOMEONE TELL ME WHAT FORM TO START FOR STEPSON ADOPTION IN NEW-YORK WESTCHESTER,PLEASE AND WHAT TO DO

A: David's Answer: There are certain forms connected with an adoption which generally MUST be completed by an attorney. You can always check with the Clerk's Office, or consult NYS Court System's website. However, at the least, I encourage you to schedule a consultation with a Westchester Family Law attorney (some of whom offer free consultations).  --  David Bliven

Can my child get taken from me cause ACS lied on me

Q: can acs lie on me for abusing my child personal needs

A: David's Answer: Obviously if ACS made false allegations against you, you would have the ability to challenge that in court. You have a right to an immediate hearing to challenge whether your child should remain in foster care pending a full trial (this immediate hearing is called a "1028 hearing").  --  David Bliven

How does New York define "Some credible Evidence"?

Q: Trying to appeal CPS case.

A: David’s answer: Assuming you are asking for a fair hearing to challenge an indicated report, then "some credible evidence" is roughly analogous to the "probable cause" standard used in the criminal law context. The Court nonetheless utilizes case law in the child neglect field to assess whether the allegations essentially "state a cause of action." The burden would then shift to you to present a defense showing there was nothing (or next to nothing) to the allegations in the first place.  --  David Bliven

My childs father is hiding income

Hello, My child is 16 years old his father sends me 300 dollars a month for our childs needs. 300 dollars is not enough, i have expressed these concerns but he refuses to send anymore. He does not have any legal custody, I have custody but not from the courts. He sees his father for 30 minutes every 2 months because his father claims he is "Busy". I want to take his father to court so i can receive more money for my son but here is the issue, his father runs several illegal betting rings and any legit business he owns is in someone elses name so are the fronts for the betting rings. If i was able to bring authorites to the rings would i be able to revieve the child support my son deserves. I know locations of most of the rings and the fronts. His father lives in nyc while i live in upstate

A: David’s answer: You may ultimately need to do one of several things: consider hirign a private investigator, do extensive document discovery demands and/or authorize the attorney to conduct a deposition.  -- David Bliven

My ex have an order protection against me with false statements I have all the proof that he is lying whats the consequences

Q: He claims i stole his credit card, and he never had one. he claims i stole pictures of his child and he was the one who send to me via email.

A: David’s answer: Is the order of protection temporary or final? How long ago was it issued? You have a right to a trial on the issue where you can present your proof, but if its a final order then your remedy is only to appeal (if made less than 30 days ago) or move to vacate your default (if you failed to appear in court when it was issued).  --  David Bliven

I went to court for child support and saw a Referee, the final decision was 70% from me and 30% from her for child support

Q: I went to court for child support and saw a Referee, the final decision was 70% from me and 30% from her for child support, then she said she need daycare so the Referee said 70/30 again and the problem i have with that is she is picking a daycare that is very expensive and now im going in debt because i cant pay my bills, is there something i can do this is not fair. please answer my question with more then "see a lawyer"?

A: David’s answer: The first question I have is: is the case finalized, or do you have an adjourn date? The reason this is important is because if the order is final, then your only remedy is to file an Objection within 30 days of the order. If the case is not finalized & you have an adjourn date, then part of your burden would be to find an alternative daycare provider. Then your argument at trial is, if she chooses to go with the more expensive provider, that's her choice, but your 70% share should be capped at 70% of what the cheaper provider charges.  -- David Bliven

How can my sister gain custody of her son after the father whom had custody died?

Q: My sister son's father won custody of their son, the problem is that he got killed a few days ago. While he was alive he made it impossible for my sister to see her son, he lived in NJ & she lives in NY. The court of NY granted her visitation rights, but he failed to show up at meeting locations. Now he is dead and his family has her son..what should she do to get her son with her. In addition she doesn't have the family's address, what should she do to obtain that information? Thank you. 

A: David’s answer: As a practical matter & with due respect to the tragic situation, perhaps as a first measure she should simply reach out, express her condolences & then ask if her son can be returned. If that doesn't work (or they turn hostile), then she should absolutely file a custody petition. She may do informal computer searches to obtain the addres, or alternatively hire a private investigator.  --  David Bliven

My ex filed a petition in family court for a QDRO, I was never served me. Is it legal?

Q: Magis. signed didn't check aff of servi: Magistrate didn't check to see affidavit of service. My pension company sent $3,000.00 dollars when it should have been $300.00 Was this legal? Can it be vacated? 

A: David’s answer: You should have been served with the petition as well as the order. Your remedy is to file a motion to vacate your default, which you need to do within 1 year of the date of the QDRO (but as a practical matter you should do so asap).  --  David Bliven

Can my daughter grandmother get custody/visition rights from me?

Q: Ok me and my daughter father made an agreement that when he comes to New York this summer he can take our child to stay only for the summer to spend time with his family that she really never gets to see. I'm 24 my daughter is 2. We are from Chas. SC. Well I got arrested in March of this year for fraudulent checks. I spent almost seven months in a women's work camp prison. At the end of my sentence I got served with a petttion from my daughter's grandmothers (dads mom) saying we going to court for this. She says. In the petition. That I'm unstable and unfit to take care of her. Not true. I have court coming up this Tuesday. I need to know what to expect. Can they just take my baby away by here/say? Will I be able to go back to SC with her? That is our home. Please for advise. 

A: David’s answer: I assume from your posting that the grandmother filed a petition in Bronx Co., NY? If so, there would be many more factors which are relevant other than merely you having been in prison recently which would warrant the court giving her custody. The Court is extremely unlikely (unless there's something else going on) to give her custody right from the beginning.  --  David Bliven 

I was just layed off, how do i go about reducing my child support payment?:

Q: what ill b getting from unemployment is 1/3 of what u used to make. the children im paying child support for are 20 years old. i have 10 and a 11 years old with my wife. i cant afford to payment that much. im currently payin $250.00 oer week.

Asked 2 days ago in Family

A: David’s answer: You need to file a downward modification petition. In Westchester that's done at SCU, 100 E. 1st St., Mt Vernon. You also need to conduct a "diligent search" to find another job & document that job search in a job search diary.  --  David Bliven

If me & the mother signed a child support contract

Q: If me & the mother signed a contract stating child support cost is $150 every 2 weeks compared to $500 every 2 weeks; does the: contract stand at $150 or do i still have to pay the $500 every 2 weeks? 

A: David’s answer: If the mother files a petition & wishes to have support paid at the $500 amount, the Magistrate will most likely allow this unless the "agreement" was a duly-executed Separation Agreement. That said, I think it's worth your time to bring the agreement to an attorney & have it reviewed.  --  David Bliven

How can I make the steps to get physical custody of my children?

Q: I have had joint of my children for the past three years... I am the non custodial parent ... I have consistently visited with them on a biweekly basis, holidays, and summer vacations. Last month I learned from the children that they are no longer living with their father.. they stay with their grandparents 100% of the time..when they are not with me. The father visits them daily by picking them up for school and dropping them off ..and occasional dinners. What are the first steps I should take to get them back. (By the way I didn't lose custody of them due to negligence at all). 

A: David’s answer: First, you need to immediately file a modification petition. You should not let the issue linger, or else it will grow stale & the Judge will wonder why you sat on your rights. Second, you should try to get some kind of confirmation from either the father or the grandfather of what the situation is.  -- David Bliven 

Am I responsible for paying mortgage, maintence, repairs and property taxes on my former home after my divorce?

Q: I am moving out in Dec, bought new home. Husband is staying in our home until we can sell it. Divorce in NY should be finalized shortly, before sale. Agreed no alimony on either side. Do I need to pay him maintenance for his living expenses/housing? I make 10k less than he does and will have custody of our child which I pay 60% of her support. I can see 1/2 mortgage but not repairs, maintenance and taxes. Is there diff amounts I am responsible before divorce and then after? 

A: David’s answer: If you say that the "divorce should be finalized shortly," then you should be executing a settlement agreement which should specify exactly who pays what expense. Indeed, most often the Judge will require a full settlement agreement where there is either children OR property involved - and in your case there is both. Moreover, if the income differential is only $10,000, then most likely you would not need to pay him maintenance (i.e., alimony), but if you're talking maintenance as regards a Co-Op, that may be a different issue.  -- David Bliven 

It is written in my husband's divorce papers that his ex wife will receive part of his pension. Will she? How much?

Q: She is remarried.

A: David Bliven's Answer: That depends on what you're looking at when you're referring to "papers." Are you looking at the divorce judgment or a separation agreement or something else? The amount (or rather percentage) should have been specified in a document like that. Moreover, a Qualified Domestic Relations Order will need to be prepared.

In nyc how much time do you have to serve custody papers?

Q: girlfriend and I had a baby. i would like to have sole custody. haw much time do I have to serve court papers on her

A: David Bliven's Answer: You must serve her personally 8 or more days prior to the court date. One note - service must be done by someone else who is 18+ years old. 

Have a baby during divorce period

Q: I am in divorce process with my wife. The process has started six month ago. Now I started a new relationship and new girlfriend just got pregnant last month. My wife is negotiating spouse support, Medicare and all other issues with me still. So my girlfriend 's pregnancy will cause any trouble or change for my divorce case? Can my wife Sue me adultery since divorce is not settled yet? Will I pay her less spouse support as I will have a new kid and new girlfriend to take care?

A: David Bliven's Answer: To answer your question definitively, I'd need to know what "all other issues" means. That said, though you are technically still married until the divorce judgment is signed, the reality is that adulerty is very rarely prosecuted anymore. In terms of whether - and to what extent - your new responsibilities will impact spousal support (or "maintenance"), this may depend on what contribution your girlfriend may be able to make towards those expenses.

After 9yrs, now my sons father is fighting me for custody.

Q: My sons father hasn't paid child support in 9yrs. I have full & sole custody of my son which is 12yrs old.. I've provided for my son alone. Yet, I do let my son see his father (no overnights)! For the day and they do keep in contact.. Recently my ex got caught in Florida and New York for NOT paying child support.. He called me threatening me to say that I do receive money from him (which I don't & haven't )! When I said to him that I wasn't going to lie, things got ugly, I now received a court order to appear in court Nov. 26,2012 with my son or a warrant would be issued for my arrest. He's fighting me with false allegations that he hasn't seen my son since 2005 and doesn't know our whereabouts.. My ex also gave a wrong address to where I reside.... Why would he lie? We are NOT the best of friends, we try to get along only for our son.. My ex doesn't call my son for his birthday, Christmas or holidays.. I have to call him and remind him to call our son.. All of these false allegations just because he doesn't want to pay child support. And now the court ordered my son to appear in court with me.. Please help.. I can't lose my son over lies!!!!!

A: David Bliven's Answer: The short answer is that sometimes people do lie to get what they want. If there is an order of child support, I highly suggest you file a counter-petition requesting enforcement. And if the order was entered several years ago, I would also suggest to file for an upward modification. As for the case he filed, is he asking for custody or merely for enforcement of visitation rights? Is there a prior court order of custody/visitation? What are your reasons for limiting contact to day visits only? 

What are the legal ramifications to consider in showing up to see my child?

Q: Parental rights have been terminated. And the child is adopted. I just wanna see her. Isn't it up to the adoptive parent whether to let me see the child???

A: David Bliven's Answer: If your parental rights were terminated, then not only is it "up to the adotive parents" whether to allow any contact, but more importantly they must consider whether in doing so they may be committing child neglect themselves (i.e., they may risk having the child taken away from them, depending on the reasons why your rights were terminated). Moreover, you take the risk of them calling the police & you getting charged with tresspass if you "just show up."

Can you turn over parental rights to grandparent in order to avoid termination of parental rights?

Q: The father is in custody at this time awaiting a parole hearing, but will hopefully be released soon. However, he has an upcoming court date for a suspended judgment on his custody case with his son. He doesn't want them to terminate his rights for his son and keep him in the system. The son's mother had her rights taken away 6 years ago while he was in jail because of child abuse. Also, he has recently been through a couple foster parents because of behavioral health concerns and they are considering a group home. Would turning over his rights be a possibility for him? Also, if the grandmother is worried about taking him in because of his mental health issues, could I look to be a foster parent for him? Or would this be a conflict as I am his father's girlfriend?

A: David Bliven's Answer: If the child has been in foster care for that long, it is quite possible the child is already in a pre-adoptive placement setting. As such, it may be hard to start the process now in getting custody to the grandparent. But that said, she would lose nothing by filing the petition. As for yourself, if the agency believes the father cannot care for the child, then they would be extremely unlikely to place the child with you if your plan is to reunite with the child's father upon his release. All that said, you would greatly benefit by scheduling a consultation with a Bronx Co. Family Law attorney.

Divorce grounds:

Q:  I am in divorce procedure, everything else is agreed by both party. The only disagreement is that I want to use relationship breakdown as grounds and my wife want to use inhuman treatment as grounds to help herself get green card. I don't want to accept her proposed ground but also want to get the divorce done asap. Is there any way that I don't need to admit her proposed grounds but still get the divorce done? Such as not admit not deny 

A: David Bliven’s answer: You would not need to admit to her grounds. Your option is to execute an affidavit withdrawing your grounds & acknowledging that she will proceed on her grounds. You may always add in a statement (if it makes you feel better) that you're neither admitting nor denying same. If a judgment is entered to that effect, there will still be a court finding on the cruel & inhuman treatment grounds. That said, if you have no children together and she's not seeking a protective order, there seems to me little risk.

If I have full sole custody of my son and Im the sole provider

Q: And the father who has contributed NOTHING for the past 9 yrs, now wants custody and is fighting me with false accusations. I was summons to court and it states that I must bring my child. What does that mean? Why does the child have to be there? 

A: David Bliven’s answer: There may be an allegation that the father is not being allowed to see the child, or that you moved without a forwarduing address. Most likely the Judge just wants the child to speak with the assigned Law Guardian that day.

Questioning grandparents rights

Q:  I am questioning the rights as a grandmother for my 5 month old granddaughter. My daughter was abused by her baby's dad while holding the baby in her arms. He was arrested and she has an order of protection against him. They are due in court for domestic abuse and child custody. My daughter decided to violate court orders and left with the baby to his home. Now I am worried for my grandaughter's well being. What steps can I take to avoid the parents not allowing my granddaughter to be a part of our life? 

A: David Bliven’s answer: First, if that is your concern, you should consider filing a Petition in Family Court seeking either custody for yourself, or alternatively visitation. What you choose & how to strategize your case is best dealt with at a consultation with a Westchester Family Law attorney.

It is written in my husband's divorce papers that his ex wife will receive part of his pension. Will she? How much?:

Q: She is remarried.

A: David Bliven’s answer: That depends on what you're looking at when you're referring to "papers." Are you looking at the divorce judgment or a separation agreement or something else? The amount (or rather percentage) should have been specified in a document like that. Moreover, a Qualified Domestic Relations Order will need to be prepared.

My 18 yr. old son is with his 16 yr. old girlfriend with her parents consent and they've been together over a year?

Q: my son is 18 and his girlfriend is 16 they ve been together over a year and now she is pregnant and the mother kicked her out cause she didn't have an abortion and before the pregnacy she was already going thru issues with the mother but this now gave the mom more ower to throw her daughter out the home, i am the mother of the boyfriend willing to help both of them. my son grauated highschool and she still has 2 yrs. to finish but is determined to do so. what legal actions can i take to help her


A: David Bliven's Answer: Preliminarily, I disagree with the opinion that the boyfriend may be guilty of statutory rape. All of the statutes defining rape have an affirmative defense connected with them such that a person would only be guilty if more than 4 years older than the victim (http://public.leginfo.state.ny.us/LAWSSEAF.cgi?...). In any event, if your question pertains to obtaining medical insurance for her and/or enrolling her in school, you may be able to get a simple consent from the girl's mother & then execute the appropriate forms supplied by the school & insurance provider. If either require you to file for guardianship or custody, then that's the route you may need to take.

Postscript: One correction/caveat - the statute defining sexual misconduct does NOT contain the same affirmative defense & thus arguably one would be guilty if one were 18yo & had sexual intercourse with a 16yo.

My husband left me in 2009. I have asked him for a divorce several times. He says soon. How can I get one after 20 years?

Q: He works for Con Ed and makes good money. I recently returned to work and make very little money. We have been married for 20 years. We have three kids together, which I get child support for. I do not receive any spousal support. He recently moved in with a girlfriend. I really need assistance. 

A: David Bliven’s answer: You may indeed be entitled to maintenance (spousal support) depending largely on the disparity of income (while also factoring in the amount of child support he's providing). You may also be entitled to a share of his pension as well as any other marital assets. In terms of affording an attorney, some attorneys may be willing to take the case on a payment plan or sliding scale, with the anticipation of getting some fees reimbursed by your husband (assuming he makes 6-figures or close to it).

My husband has given me 7 days to leave house.Do I have to leave?

Q: i am reliant in his income.We have 2 teenagers.Deed in both: I have an attorney and he does not. Collabrative divorce is what I'm aiming for. Stressful and toxic environment but he makes the money and works from home I won't leave because it's my house too. I come and go as I please and consider it a dwelling not a home. He has been threatening me daily now to leave

A: David Bliven’s answer: If as you say the environment is stressful & toxic, this is NOT a situation condusive to collaborative law, which assumes a relatively amicable situation. If he's threatening to "kick you out," you would have recourse, which would be to contest the case & file an emergency application to be restored to the marital residence. In such a situation, however, many collaborative law attorneys will be unwilling to represent you at that point, which means you would need a "regular" divorce attorney.

It is written in my husbands divorce papers that his ex will get 1/2 his pension for the time they were married. Is this a qdro?

Q: She is remarried. There are no special papers for this. It is written in the divorce papers. This qdro sounds like it's something that has to be written up in seperate papers. 

A: David Bliven’s answer: A "QDRO" (or Qualified Domestic Relations Order) is indeed a separate document & is similar to a garnishment on the pension.

The child support i'm paying is more then what im bringing home in my net and the courts dont care about my cost of living

Q: i had a kidney removed due to renal cancer, i was out of work for 6months and when i went back to work i had to pay arrears and my base amount of support was increased im now unable to pay my bills on time and im facing eviction because im 2months behind in rent

 

A: David Bliven’s answer: The question is whether you made an application to lower the support at or just after the time of your surgery. The Court only has authority to lower support retroactive to the date you filed. That said, if your income is lower than it was before the surgery, this MAY be a basis to lower the support.

Child turned 21 last month. Why am I still being garnished?:

Q:   I called the payroll manager at work and she states that she's yet to receive an order to stop garnishing my salary, although as previously mentioned my daughter turned 21 last month. Will it eventually stop or do I have to petition the court? What do I bring? I don't think I have the order anymore since it was years ago and I've moved several times. And if the child is over 21, then why do I need to bring anything? Do I get my money back? Thanks in advance.

A: David Bliven’s answer: Do you have another child on the order? If the order was unallocated, this may be a reason the order is continuing. If not, then this may be an error on SCU's part and thus you need to immediately file an order to show cause with Family Court & ask for immediate suspension of the order pending the court date. Then if the Magistrate/Judge suspends the order, give a copy of the order to SCU & your payroll.   

Can my 18 year old son sue his father for child support?

Q:  My son want to sue his father for child support but I don't have child support case. 

A: David Bliven’s answer: Why is your son suing & not you? If he is living on his own, then whether he can collect child support from the father will largely depend on how he's supporting himself (i.e., whether he's financially emancipated).

Signed a child birth certificate its not mine and was born in the marriage want to fix his paper to be mine what i have to do?

Q:   This happened in the dominican Republic 

A: David Bliven’s answer: If the birth certificate is a D.R. certificate, you may need to amend it there. You may always try to have it registered first with Westchester County, get them to issue a new birth certificate and then file for a paternity proceeding. I would suggest to do this promptly as the longer you wait, the more likely it is that you'll be precluded from removing your name or denying paternity.

Wife and i are working on a separation, but i am dating. We both have kids. Can she harm me legally for this?

Q: Wife and i have a 3mo. old and 3 year old. i am dating seriously now, and was accused of cheating with this person but that only began after we decided the marriage was done. GF has a 5 year old. GF splits rent with me so i could afford to pay for a place for the wife to live. i have other weekend custody (of the 3 yr old, baby is breastfeeding) and see the kids 2x a week for a couple hours. Wife refuses to let me bring my 3 year old to my place if my GF is there with or without her kid. Nothing illegal is going on and wouldnt expose kids to a "new relationship" yet just as friends (i would sleep on couch). Can she legally come at me if i proceed? my relationship with the gf is very serious, and neither of us doing anything illegal or would harm anyone or endager the kids. thanks! 

A: David Bliven’s answer:    Now-a-days, many Judges are quite liberally-minded about the fact that if parties have been physically separated for some degree of time, they are bound to "meet someone new." I do agree "adultery" as a crime is still on the books, but it is rarely if ever prosecuted. That said, to protect yourself further, I'd highly suggest you file for divorce & if visitation is still in dispute, get a Judge assigned to the case.

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My daughter is 18 & is living at college. Is there a way that my child support payment can go directly to my daughter?

Q: I'm paying about 1,200 a month on child support, and my daughters mother only sends her a $100 a month, so basically support money is being spent by the mother, and not on daughters needs. 

A: David Bliven’s answer: You may petition for not only a credit of the child support going to Room & Board, but may also petition the court to lower the amount of basic support while the child is away at school, under the theory that the Mother's expenses to maintain the household are presumably less than if the child was there. To make that argument successfully, I'd highly sugegst to at least consult with - if not hire - a Bronx Family Law attorney.

Son's father filed for paternity from prison

Q: My sons father is in prison and wants his name on his birth certificate can and will he get what he wants and do i have to worry: he will be in prison for 25 years. 

A: David Bliven’s answer: I agree that it's possible for him to file a paternity petition - if he does and is successful in proving his paternity (usually done via a DNA test) then he'll also very likely be successful in getting his name added to the birth certificate. That said, even though he's in jail, it's still possible to get the court to enter a minimum child support order against him (usually $25-50 per month), which may not sound like alot now, but if the child's an infant it could result in a judgment against him of over $6,000 not including interest when he gets out.

Is child support really based on 17% of your salary?

Q: I moved to Florida about a year ago and not making the same amount , I have filed a modification of child support but was ignored, I've submitted financial document ion and still was not lowered, now I'm forced to pay an amount that I don't even make in a month.can you help.

A: David Bliven’s answer: If you either voluntarily quit your last job or were fired due to misconduct, then the Court will generally not lower your support even if your income is now reduced. And it is your burden to prove (through documentary evidence) that you were not fired or did not quit. If you can show this, then you would need to review what proof you submitted along with the Court decision with a Bronx Family Law attorney.

What legal actions can a father take when the child's mother runs away with the child & files for child support ?

Q:  I have a 9 yr old son whose mother ran off to another state when he was 1 month old, then I finally got to see him at the age of 2 for 1 Month. Since then She will not disclose her location nor let me keep in touch with my son. Yet, she went to court and filed for child support which i have been paying for the past 8/9 years. I asked the child support judge to advise me how can I see my son or stop the child support payments since I have not seen my son & tried reaching out to her through her family to no avail. The Court's best answer was to go to the last state she is known to reside in and deal with their court system since my state cannot assist me. I haven't seen my son although I would truly love to but I am tired of this fight that the Courts are unwilling to help me. Advice?

 

A: David Bliven’s answer: The ultimate problem is that the state where the child is now living in probably has jurisdiction to hear any custody or visitation cases. If a child has been residing in a particular state for more than 1 year, then generally that state has such jurisdiction. Thus, I agree that hiring a private investigator at this point seems to be your best shot. First find her, then enforce your visitation rights.

How do I speed up an uncontested divorce in Bronx, NY.:

Q: Have transcrpts since Feb 2012. Want to remarry, is there a form to speed up the process so I can proceed with my life. My x got everything plus my son, I have not seen him for 3 yrs. Every time I call the court they say 3 months. I really would like to have peace. Can you help me I have no $ but I have a heart. I plan to remarry by Dec 15, 2012. Thank you 

A: David Bliven’s answer: Unfortunately, the only effective way to speed up the process is to file an order to show cause (usually done via an attorney) attaching the wedding invite (among other supporting documentation). Usually such a motion is filed by an attorney however. Short of that you can always try going into the Matrimonial Clerk's Office personally with a copy of the wedding invite & beg for mercy.

I paid for braces 3 yrs ago & Daughter never wore retainer and now her Bottom teeth are crooked. Mom wants me to pay again for braces I'n 5300 range.

Q:  Single dad. Daughter does not speak to me. I live I'n ny - am I liable for this again. It is a non emergency situation and I am responsible for 3/4 of medical. I am refusing

Asked about 2 hours ago in Child Custody

A: David Bliven’s answer: First, I would need to review any order or agreement you & the mother have on the child support issue to see whether it specifically provides that you pay for same. My question is why, if your daughter has such enormous expenses, either one of you don't look into dental insurance?

What form do I use to petition the court to relocate with minor children (New York)?

Q: My ex-husband and I are recently divorced and the divorce decree states that I cannot move more than 30 miles away. I have been a stay at home mom for almost the entire length of the marriage (7 years) and our children are ages 7 and 3. I'm having trouble finding work, and I have no support or resources here in New York. I want to move back to Kentucky where both my parents and my ex's reside. How do I petition the court in order to do so, and what is the best way to make my case?

A: David Bliven's Answer: General court forms may be found at the Clerk's office or on the NYS Court System's website (http://www.courts.state.ny.us/litigants/forms.shtml). That said, a relocation proceeding is a difficult one to present. If part of your reason for relocating is difficulty in finding work, then I highly advise to start keeping documentary proof of your job search (example: print-outs of submissions on Monster.com) as you may ultimately need to prove your "diligent" job search at trial.

I want to re-enforce a verbal agreement.What can I do to keep it the way it has always been for the past 7yrs.?

Q: 7yrs. ago in front of a judge a verbal agreement between myself and my son's legal guaurdian was made where I would have visits every other Saturday.Now without reason or warning my son's legal guardian cut it down to 1 visit every 2 months.This just can't be.There has never been anything wrong in the past for his legal guardian to make such a drastic and bad change.I want my visits to stay as it always has been. 

A: David Bliven’s answer: When you say "verbal agreement in front of a Judge," was the verbal agreement incorporated into an order? This does make a difference in how you proceed, as if it was incorporated into an order you would file a "violation petition." If not, then you would file a "petition for visitation." Moreover, when you say "legal guardian," who is it that the child is residing with (& why)?

Before my ex and i broke up due to her giving me a restraining order, she added her fathers netflix account to my xbox - do I risk arrest?

Q: Before my ex and i broke up due to her giving me a restraining order, she added her fathers netflix account to my xbox before the court date. vie since then moved and allowed my family to use my xbox. if they are still using it will i get arrested? is that considered violation even though no contact was made and my ex herself assigned the account and never took it off. 

A: David Bliven’s answer: If the restraining order contains a "no contact" provision and/or prohibits "3d party contact," then you certainly run a risk of violating the order & thus being arrested. Why risk it? I highly suggest to remove the account & open your own.

My daughter is 17 but is not going to college. She hasn't spoke to me in a year. Can I stop child support?

Q: Her mom raised her not to listen to me when I: Would discipline her. I have no control of her actions. Here mom has alienated my relationship. In court my daughter stated that she wants nothing to do with me. Her mom uses the money for her personal gain. My daughter runs around with the wrong people doing drugs sleeping over boys houses ect. Can stop payment and claim her to be imancipated at 18 ? 

A: David Bliven’s answer:    You need to file a petition to terminate support based on emancipation - you cannot do so on your own. Your argument in court would be that your daughter is constructively emancipated as she is unjustifiably refusing a relationship with you. A word of caution, however - this is a difficult argument to make & you'll probably be unsuccessful without the services of an experienced attorney.

What should i do?

Q:  I have a restraining order placed by my ex. my family is using their netflix account. am i in violation or am i subject to arrest ? 

A: David Bliven’s answer: At least during the time of the restraining order, it makes sense for them to establish their own account.

How is child support effected if custodial parent is receiving SSDI and both children received a one lump sum?

Q: I am the custodial parent of two 18 yr. old disabled children. I have not applied for SSI for them yet. I recently began to receive SSDI and both of my children received a lump sum of auxiliary benefits. How does this effect their child support and what bearings does it have on each parent? 

A: David Bliven’s answer: There was a case a while back from the highest Court in this state (Ct. of Appeals), Graby v. Graby, stating that receipt of the extra benefit is not a substitute for payment of child support from the noncustodial parent. Moreover, unless what you receive combined with your income increases the combined parental income above $136,000, then it is extremely unlikely to effect what is paid.

My ex broke into my facebook account and posted lies and said demoralizing things. Is this a breach of the divorce agreement?

Q: I have 5 months left of alimony to pay. Should I stop paying her? 

A: David Bliven’s answer: First, if the divorce agreement required you to pay, you should definitely NOT stop paying. Second, you should gather the actual proof (from Facebook) that she hacked your account. If she did so, then this may be a basis for a restraining order.

Question re: Child protective service

Q: we are being investigated by child services for false allegations that we are cocaine addicts and physically abuse my 10yr old daughter we have no idea where this is coming from. the case worker wants all 4 adults that live in the house to take drug tests but my lawyer is telling me to refuse visitations and ignore calls from the case worker and to keep putting off the drug test cause i smoked pot 2 weeks ago and that it will come out positive . so my question to u is should i avoid the case worker at all cause i dont feel good about this at all i feel like im putting myself in deeper with child services . the case worker said that if any comes out positive that we will be sent to a program. please help im sooooo confused. 

A: David Bliven’s answer: At this point, if those are the allegations, they may be just trying to get additional evidence on you to enhance their case. They are also not obligated to tell you the truth. In other words, while they may say all they're going to do is send you to a drug rehab if you test positive, they're not bound by that representation (and thus may refer the case to Family Court for prosecution).

Can you still get spousal support from your husband if he changes from a divorce to a legal separation?

Q: My husband and I have been married for 39 years. He was going for a divorce and now wants a legal separtion. What are the differences between legal separtion and divorce when it comes to things we both own like houses and automobiles and other things we own and spousal support.

Asked 1 day ago in Alimony

A: David Bliven’s answer: Generally "legal separation" entails a separation agrement, which is a document negotiated between you & your husband. Thus, the terms of the agreement, including payment of spousal support, is subject to agreement. In a divorce, an actual court case is filed. Thus, while generally the parties still attempt to negotiate a settement agreement, one of the main differences is that if an agreement cannot be reached, you can get a Judge involved to resolve the disputed issues.

Can my husband get half of my workman's comp case if we are getting divorced?

Q: The money I received for settlement of my workman's comp case is all ready spent. I live in New York. The money went into my account because we don't have the same bank accounts. My husband and I spent it together on things for the house. Does he still have rights to half of it? 

A: David Bliven’s answer: It is correct that, generally, only assets which currently exist are divisable in a divorce case. Thus, if the money is gone, then there is no claim he'd have. It would have been unlikely he'd have a claim to it anyway, as usually compensation for personal injuries are considered one's separate property so long as the funds remain segregated in a separate (i.e., not joint) account.

What happens when non custodial parent misses court day for visitation?

Q: my friend took his son mother to court but he miss the court day thinkin that was the next day what can he do? 

A: David Bliven’s answer: If it was not hard to serve the mother, then he can simply re-file & re-serve his petition (assuming it was dismissed). If it was difficult to serve the mother, or he thinks it will be hard to serve her again, his other option is to file a motion to vacate his default, explaining the circumstances of his failure to appear along with stating a valid basis for his petition.

If someone has an order of protection against me and this is my first time, will it be hard for me to find a job after?:

Q: This person has a temporary order of protection on me. 

A: David Bliven’s answer: Preliminarily, I disagree with the notion that temporary orders of protection will "not show up on any computer." Pursuant to NY Executive Law Sec. 221-a, even "temporary orders of protection" are required to be placed in the "Order of Protection Registry." That said, the Registry is primarily for court & law enforcement use; generally employers or potential employers cannot access this Registry.

My son's father refuses to pay his child support and is now chronically behind in payments. What are my options?

Q: We have an upcoming court date in New York, how can I make sure that his pay is garnished for past and future payments and have him violated for blatantly refusing to pay? He has told me he wasn't going to pay and that I could see what I get back if they garnish his tax return.

 

A: David Bliven’s answer: Well, they won't "garnish" his tax return (solely), they'll garnish his wages, so long as he has an on-the-books job. Your best bet is to also have the support paid through Support Collection Unit, who can seize any tax refund automatically.

Are there any lawyers who will take payment after divorce is settled?

Q: I am a stay at home Mom and I have real estate that I am selling and that would be my means of paying for a lawyer right now I do not have the funds to pay for a retainer..any help would be appreciated 

A: David Bliven’s answer: I, for one, would consider working out a payment plan. That said, I strongly disagree with any suggestion that an attorney could work out a "contingency plan" with you. Such arrangements are unlawful for attorneys in this field & have been for a long time.

Can acs take my child away if i test positive on a drug test do to an investigation tours me for false claims of child abuse?

Q: i was visited on 10/05/12 by child protective services because someone claimed that my husband and i plus more adults living in the house hold are using cocaine like addicts and that my husband physically abuses our child . of course we are mortified by this news and even more confused as to where it came from. it will eventually be obvious to the case worker that our child is not being abused but she wants all 4 of us which is my mom and her husband as well to take drug test. i am very willing to comply with all protocol but may test positive for marijuana and would like to know if they can take my child away do to this result? plus any other advice u can give pertaining to my case i would gladly appreciate. the child protective agent interviewed us on 10/05/12 . 

A: David Bliven’s answer: First, it is possible ACS can take your child away for a positive test. It then becomes a difference as to whether that is right or not, based on the law as well as the particular facts in your case. If there is no other indication that the child is being abused or neglected & you feel you MAY test positive, then it may be prudent to refuse to take the test, explaining that you would like to consult a lawyer first before doing so. I then highly advise you to schedule a consultation with a Family Law attorney to further discuss the situation.

My ex filed a violation of Custody and Visitation in NYS. Clarification of the Visitation and Custody still possible?

Q: My ex claims the seven days of summer vacation start the first day of my scheduled visitation. The Custody and Visitation paperwork states that I have seven days of vacation with my daughter. It does not specify that it includes my scheduled weekend. I took my vacation starting after my scheduled weekend visitation and now my ex has filed a violation. My ex has been very difficult to work with. He has scheduled events for our child during my parenting time and allowed me only 3 hours during holidays my child is scheduled to be with me (pick up and drop off is not specified in the order for holidays) Can I file for clarification of the order even if the violation already has been filed?

A: David Bliven’s answer: Indeed, it is highly advisable you should file a cross-application for modification. Obviously the terms of the original order need to be clarified & that can really only be effectively done on a modification application.

Can child support order be changed from state established to state where kids live?

Q: I was divorced in Ct in 2002 and child support was established in 2004,the same year I moved with my children to Ny. We have lived here since...can orders be changed to Ny?

A: David Bliven’s answer: In what state does the support obligor live, in NY or CT? If the support obligor still lives in CT, then any modification/enforcement must generally be done in CT. That said, there may be a different basis for jurisdiction in this state over the support obligor, so it may be worth it to have a follow-up consultation with a Family Law attorney.

Self-Insured Health Insurance Plan - QMCSO:

Q: Are there procedures (laws) that a self-insured health insurance plan must follow regarding implementation of a QMCSO. After the QMCSO is implemented, are there procedures that must be followed as well? I am the alternate recipient (non-custodial parent who is the contract holder of the insurance policy is not cooperating). What specialty type of lawyer can assist me with this?

A: David Bliven’s answer: If your health insurance company was duly served with the QMSO and refuses to issue coverage for the child(ren), then prior to filing a contempt application I would advise to inquire what their reasons are for refusing to abide by the order. Ultimately you may need to file an application for contempt in the court which issued the order.

My wife just left the house but keeps coming in while i am at work and taking things

Q: can i change the locks on the doors (the house is in both of our names)? she rented her own place.

 

A: David Bliven’s answer:    If the house is in both names, she has just as much right to possession as you do. Thus, your remedy would be to file an application for exclusive occupancy.

I have an order of protection from my ex-husband and he got suspended from work and is seeking repayment of support from me.

Q: what should I do, we have to go to court soon. Do I need to have a lawyer present?

 

A: David Bliven’s answer: As a general rule, overpayment of child support is non-refundable. As to whether he would be entitled to a modification is another question altogether & may be dependent on the reasons why he got suspended.

Is there anyway to fight a child support case when dna prove the kids r not yours?

Q: My friend has to support two kids that are not his just because he did the right thing by believing they were his kids 

A: David Bliven’s answer: First, has the Court already issued a child support order? If so, how long ago? Second, did he execute an acknowledgement of paternity (usually done if he was present in Hospital at birth)? Third, who gave him the DNA test, the Court or an independent lab? The answers to these questions will help in assessing the likelihood of his success.