Wednesday, November 21, 2012

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"?

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. 

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? 
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

Monday, November 19, 2012

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. 

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

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

Friday, November 16, 2012

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? 

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). 

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? 

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 

Wednesday, November 14, 2012

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 
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? 

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.

Tuesday, November 6, 2012

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? 

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.

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.

Saturday, November 3, 2012

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 ( 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. 

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

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.