Saturday, September 29, 2012

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.
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.

Thursday, September 27, 2012

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?

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 

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.

Can my boyfriend's soon to be ex-wife file a petition for her kids to stay away from my kids?

Q: Both my boyfriend and I have 2 wonderful kids each - the same ages between 6 and 9. He and I have been together for 7 months and plan to stay that way. Our relationship its loving and our kids love being together and even beg us to get married. His soon-to-be ex wife is full of spite and is threatening to get a court order to prevent their kids from being around mine because my son has a physical disability. She says it is "dangerous" which is untrue and quite bigoted. My son literally has muscle weakness and a normal kids otherwise. His ex also recently moved over an hour away and now wants to use the interaction of our children (which is totally normal and fun) as a reason to take the kids away from him permanently. I am very concerned because all of our children are so happy together. 

David Bliven’s answer: On the facts you've presented, it would seem to be a difficult argument for her to make for the court to restrict visitation. Are there prior orders of custody/visitation? To where did she move (and was the move permission in the prior orders, if there were any)?

Monday, September 24, 2012

Can I ask for an upward modification?

Q: My judgment of divorce ordered that "during the time the infant attends college ( she started in August): the child support shall be reduced by 50%. Can I ask for an upward modification? with the money that I make I cannot pay for my part of school with the 50% reduction.

David Bliven’s answer: Whether you can modify the agreement largely depends on the language found in the agreement regarding modification. As such, I would highly advise to have the Agreement reviewed by a Family Law attorney.

Can I deduct college tuition payments from the amount of child support i pay?

Q: I pay about $3000 in child support each month and my oldest just started college. I pay $1000 per month to the school toward tution/room and board. Can I deduct this payment from the child support and pay only $2000?
Asked about 4 hours ago in Child Support

David Bliven’s answer:    You cannot do so if there's a court order of support. You nevertheless can petition the Court for a modification to get that credit. How likely you will be is dependent on a number of factors, including whether you pay support pursuant to a mere order or pursuant to a written Settlement Agreement.

Thursday, September 20, 2012

Can i get a change of venue in a family court case?

Q: The case is actually closed and I'm attempting to reopen it.
David Bliven’s answer: Your first task may be to attempt to get it re-opened & what your factual basis would be to do so. As for venue, it depends on what type of case you have, where the child(ren) live, etc.  Thus, more facts are necesary prior to me being able to answer this question.

How do I move out of state with my child when I have joint custody with my ex?

Q: My son is 2 years old and lives with me Mon-Fri and his is mother has him from Fri to Mon. We have joint custody of him and we live in NY. I am planning to move to North Carolina next year and I want to take my son with me but I am not sure his mother would agree to it. Right now I support him fully and do not receive child support from her. I am looking to buy a house in the suburbs and she lives in a not so nice neighborhood. How can I move out of state with him legally?

David Bliven’s answer: Relocation is a complex case & thus if you are serious about doing so, you need to plan a strategy now. If the non-custodial parent is not paying child support, then she should be. You'll need to file for same and press the issue on add-on expenses as well. Moreover, your reasons for the move are critical. For instance, are you moving because your job is being transferred, or just for a "fresh start?" Your case is tougher if the latter as opposed to the former.

Wednesday, September 19, 2012

I'm going thru a divorce - I posted on my page that my wife cheated on me - is this bad for the divorce?

Q: she walked out on me & left her kids which are adults then two months later moved them out - she's been having a affair &Ii posted it on my facebook page becuase I was angry.

David Bliven’s answer: I would advise to take it down. While you're free to discuss such issues privately, once kids are involved, it makes better sense not to air out your grievances in public.

How could I change my daughters last name with out her fathers consent?

Q: I know he isn't going to approve it.
David Bliven’s answer: If the father is not consenting, then you may need to do it via an adoption case. However, if the father is relatively involved with the child (i.e., has not abandoned the child), then you would probably not be able to pursue that route.

Tuesday, September 11, 2012

I need an 18-b lawyer for a visitation case

Q: I don't have the means to pay for a lawyer. How can I get an 18-b lawyer to help me: My son was murdered last year at this time and I am trying to get to visit his last child.
David Bliven’s answer: In this instance, you ask the Judge for the assignment of counsel on the initial court date. If you do not qualify for whatever reason, feel free to contact my office for a free initial consultation.

How does one ensure that the attorney for the children does their due diligence in representing the children?

Q: I feel that the attorney for my children is not representing them with due diligence. I do not believe this person can represent best interest without investigating the children’s complete circumstance and knowing what is true or untrue in the case that will decide their futures. To my knowledge this attorney has made no effort to verify any allegations including illegal activity, forgery, & perjury, manipulation, fear mongering & parental alienation. I feel that this attorney is biased to the children remaining in their current location overlooking the fact that my spouse does not reside there as claimed. This means that the children are being raised by a third party instead of their parents. This attorney seems perfectly comfortable relying on affidavits and evaluations, making court appearances & collecting fees rather then exhorting any effort to truly determine what is in the children’s best interest and how best to represent them. I have read Adopting Law Guardian Standards and The Chief Judge Clarifies the Role of Attorneys for Children NYSBA Family Law Review… but they all seem vague. Any advice would be greatly appreciated!
David Bliven’s answer: Part of your confusion stems from a misunderstanding of the role of the Attorney for the Children. The Attorney is NOT an investigator, and thus has no duty to "investigate the facts." The Attorney is there to represent his/her clients, and thus as best as s/he is able to s/he should ascertain their position on the particular issues before the Court. Your attorney - in collaboration with you - should be gathering evidence and attempting to persuade both the Judge & the Attorney for the Child to come around to your perspective. In any event, if you would like a free, initial consultation, please feel free to contact me at my White Plains office - 914-468-0968.
Answered 4 minutes ago.

Saturday, September 8, 2012

Can i file for sole custody?

Q: My daughter is 7yrs old i i came from new york to spain we live here nowshe goesto school here her daddy has custody but he asked me to keep hercause he was going to seat and do federal time now hes release and on probation till 2014, and my daugther its doing great here in school even got a scholarship, i wanna go back to ny and file for sole custody. what are my chances?

David Bliven’s answer: One would think that if the child's been living with you for more than a couple of years (though this is unclear from your posting) then you'd stand a good shot of getting custody. I would nonetheless advise that you contact a Family Law attorney for a consultation.

in a Child Cistody case, how do I obtain a copy of my forensic evaluation reports?

Q: The judge ordered that a report be submitted to the court. The court sent copies to the attorneys. My attorney has quickly read it to me but says that they are not allowed to give me a copy. Nowhere in the order does it state that I am not allowed a copy and I have found no law that disallowes me from having the report. The order did state that neither attorney shall have contact with the evualator except for payment issues. it did not state that I may not request a copy although I believe he would not give it. I did go to the court to see if it was in my records and was told that it is in the judges records and they would not give me a copy. What should I do to obtain these reports? Thanks very much for any advice!

David Bliven’s answer: To my knowledge, It is the current policy of the Westchester courts not to allow the parties to have a copy of the report. That said, unless there is a specific order to the contrary, your attorney should allow you to read the report in his/her office.

Wednesday, September 5, 2012

How to defend yourself in court against a Order of Protection

Q: My wife has call the police three times to our house claiming harressment and abuse. She said that she has documented evidence, however these are made up charges which have been blown out of proportion. She is trying to get custody of our young child and the house and have been telling people this for a long time, ( Her name is not included on the mortgage). After the last claim she went and fild for an Order of Protection. I am due in court tomorrow. How should I best represent myself?

David Bliven’s answer: I think the best thing you can possibly do is to schedule a consultation with an attorney. Thus, you should request an adjournment of the Judge in order to consult with and/or hire an attorney.

Selling Joint Property prior to Divorce

Q: Could I sell our stamp, collectible , paint collections ( without his knowledge as I have no money and he never gives me any?: He has indicated he wants a divorce and is 71 and retired in south but we live in westchster ny and he seldom comes up. I raised our kids and he has never supported us besides having the house. Married 36 years.

David Bliven's answer: The problem is if you get rid of joint property without his consent, he can always claim either he wanted to keep it (and thus you owe him money), or that you under-sold it. I would not advise you do anything without at least consulting a Family Law attorney first.