Q: I've been paying child support for 13 years, my ex requested an increase in court, I'm already giving her 852$ per month, and now because I owe 58,000$ in back taxes, the IRS is garnishing my paycheck for 800$ per month, now that's over 1600$ per month, between child support and IRS garneshment on a 95,000$ per year salary and I still have my regular bills to pay. Now I cannot survive financially, so am I eligible for a decrese in child support payments due to this hardship? My family court is in Brooklyn NY.
A: David's Answer: You generally would not be eligible for a decrease, as usually support is based on a percentage of your income. Nevertheless, you may be able to defeat the upward modification application by arguing that you have an "extraordinary expense." To reserve your right to proceed on a downward modification application, you'll need to file & serve your own counter-petition. -- David Bliven, Westchester Child Support lawyer.
(www.blivenlaw.net)
I am a former Family Court prosecutor and handle all divorce and family law matters, including contested and uncontested divorces, child custody/visitation, child support/paternity, adoptions, family offense (orders of protection), child abuse/neglect and juvenile delinquency. I practice primarily in Westchester (White Plains and vicinity) and the Bronx (Riverdale and vicinity). My website can be found at www.blivenlaw.net.
Thursday, January 31, 2013
Wednesday, January 30, 2013
Can I sue my ex for legal fees after this has been dismissed by another judge?
Q: I am in a custody/ visitation battle and had a court appointed lawyer. She didnt do anything, never responded to emails, called me back after multiple messages. I was forced to hire Lawyer in fear i was not receiving fair representation. My ex has dragged the case on unbelievably leaving me with thousands of dollars in legal fees. He is an alcoholic with no license and moved over two hrs away by choice and has no job. I have a respectable job and no substance abuse issues or legal matters otherwise. I am forced to drive an hr away to an exchange point. I want him to pay for the legal fees as the only thing my lawyer has accomplished is movig the exchange point a half hr closer for $9500.00
The case was not dragged on because i am unhappy with my lawyer. My mistake for wording it incorrectly. My ex was ordered to go to alcohol evaluation in April 2012 and dis not go until november. The judge kept letting him reschedule and get away with it. ( that would be a red flag for me) so the case has gone an extra 6-7 months because of him, putting me thiusands of dollars into debt for needing to bring an attorney back to court.
A: David's Answer: Attorneys fees may be granted in a Family Court Custody case. Whether you would be entitled to it or not would depend in part on whether the case ended in a settlement or after trial, as well as the disparity of income between you & the father. Such an application must generally be made promtly after the case ends, however. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Additional information
A: David's Answer: Attorneys fees may be granted in a Family Court Custody case. Whether you would be entitled to it or not would depend in part on whether the case ended in a settlement or after trial, as well as the disparity of income between you & the father. Such an application must generally be made promtly after the case ends, however. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Tuesday, January 29, 2013
How can I drop a five year order proctetction againg the father of my kids it was a criminal case please help we wanna get marri
Q: I press charge against my boy friend we have two kids together it was a criminal case the da gave me a 5 year order proctetion I want to drop it cuz we wanna get married can u please help
A: David's Answer: First, you may contact the DA to see he s/he will consent to the change. If not, you may need to retain a criminal law attorney to make the application on your behalf. -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
A: David's Answer: First, you may contact the DA to see he s/he will consent to the change. If not, you may need to retain a criminal law attorney to make the application on your behalf. -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
Can I change my son's last name to his stepfather's last name without going through the adoption process?
Q: My son is currently using my maiden name as his last name. His biological father was never listed in the birth certificate and was never involved in my son's life. He is in a different country and doesn't want to do anything with my son. I had recently got married and had changed my last name to my husband's last name. My husband (son's stepfather) wants my son to start using his last name as well to match our last name. How do we go about the process without undergoing the adoption process? Thank you.
A: David's Answer: Without going through the adoption process, you would need to file a change of name proceeding (http://www.nycourts.gov/forms/namechange.shtml). -- David Bliven, Westchester Adoption lawyer (www.blivenlaw.net)
A: David's Answer: Without going through the adoption process, you would need to file a change of name proceeding (http://www.nycourts.gov/forms/namechange.shtml). -- David Bliven, Westchester Adoption lawyer (www.blivenlaw.net)
12 yo boy is being abused by the CPS workers who are supposed to protect him. What can I do?
Q: My son tells CPS about excessive corporal punishment and harassment . CPS has become increasingly abusive towards my son. His father has them convinced that he is a liar. When CPS came to my home recently, they continued to abuse my son, called him a liar, told him that his brother hates him, told me that his clothes are expensive and most kids cannot afford them which is probably why he only wants to me with me. The said that his father can hit him as much as he likes as long as he doesn’t leave marks. I had an order of protection against corporal punishment which his father violated. CPS told me that their definition of corporal punishment is when a parent makes their child sit with their knees on rice for 2 hours. What can I do about CPS?
A: David's Answer: The first thing that has to be said is: unless there is a case already in court, you have no legal obligation to cooperate with their investigation. As such, if you feel they are not helping - or indeed making things worse - then politely tell them you no longer need their assistance. Then you may simply follow-up in Family Court with a visitation modification petition. The definition of "excessive" corporal punishment is certainly more broad than the definition given, but it also usually entails leaving visible marks or bruises. -- David Bliven, Westchester Child Abuse attorney (www.blivenlaw.net)
A: David's Answer: The first thing that has to be said is: unless there is a case already in court, you have no legal obligation to cooperate with their investigation. As such, if you feel they are not helping - or indeed making things worse - then politely tell them you no longer need their assistance. Then you may simply follow-up in Family Court with a visitation modification petition. The definition of "excessive" corporal punishment is certainly more broad than the definition given, but it also usually entails leaving visible marks or bruises. -- David Bliven, Westchester Child Abuse attorney (www.blivenlaw.net)
Should my nephew agree t an uncontested divorce when there has been adultery and there is a child involved?
Q: My nephew’s wife is filing an uncontested divorce. She actually committed adultery at least 4 times. He took her back every time. They have a son and she may try to get sole custody. Is he at risk by agreeing to the uncontested divorce? Should he hold out and file a contested divorce for adultery? He needs to be in his sons life at least 50% of the time and I also think he should have custody as she is highly unstable. I am concerned that agreeing to an uncontested divorce removes his ability to use the adultery in a custody battle.
A: David's Answer: If he signs off on an uncontested divorce (or "affidavit of defendant"), he will indeed be agreeing to the wife having custody. adultery in itself will probably not win him custody, but you mentioned her "insatiability" & depending on the extent of same, he may have a good shot. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: David's Answer: If he signs off on an uncontested divorce (or "affidavit of defendant"), he will indeed be agreeing to the wife having custody. adultery in itself will probably not win him custody, but you mentioned her "insatiability" & depending on the extent of same, he may have a good shot. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
Saturday, January 26, 2013
Might a judge agree to change in custody/visitation due to increasing physical and verbal altercations between my ex and my son?
Q: Over the years my sons relationship with his father has gotten worse. He and his wife call my son names, push him around physically, belittle him etc. And my son’s behavior towards them in turn gets worse. Ongoing physical and verbal altercations lead to calls to me to come pick him up. At home with me my son is happy, sweet, helpful etc. I have filed for modifications in the past but each time my ex has successfully painted me and my son as a liars. Now, my son has taken it upon himself to record his father’s abusive behavior. There are also recordings of his father ignoring my calls to the home to speak to the boys…He is refusing to go to his dad’s house. Does the degrading relationship that results in these constant altercations compel a judge to agree to change in c/v?
A: David's Answer: How old is your son? You should be cautious about your son "recording" his conversations with his father as the father may twist it & say you're putting him up to it. Certainly you may record phone conversations with the father that you have directly with him - and you can also keep a paper-trail on important conversations/events which often serves beter than a he-said-she-said in court. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: How old is your son? You should be cautious about your son "recording" his conversations with his father as the father may twist it & say you're putting him up to it. Certainly you may record phone conversations with the father that you have directly with him - and you can also keep a paper-trail on important conversations/events which often serves beter than a he-said-she-said in court. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Father did not agree with initial child support order. What to expect at second hearing?
Q: I went to my initial child support hearing in November and the father objected based on the 17%. The support magistrate will be looking at our financial affidavits. He is not below the poverty line, this is his only child/I do not keep the child from him and he has been on his job for 18 years. What should I expect at the second hearing? This whole process is becoming quite stressful. Thanks in advance.
A: David's Answer: There are a few common factors the Court will use in deviating from the standard child support calculation. First, if the combined parental income exceeds $136,000 (the current statutory "cap"), then the court MAY deviate on the percentage for income exceeding that amount. Second, if the father is supporting other children pursuant to a valid written agreement or order, the Court SHOULD give him a credit for those payments. Finally, if the father has some unusual expense (such as student loan debt, a garnishment, high health care costs, etc.), the court MAY take same into account in making the support lower. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: There are a few common factors the Court will use in deviating from the standard child support calculation. First, if the combined parental income exceeds $136,000 (the current statutory "cap"), then the court MAY deviate on the percentage for income exceeding that amount. Second, if the father is supporting other children pursuant to a valid written agreement or order, the Court SHOULD give him a credit for those payments. Finally, if the father has some unusual expense (such as student loan debt, a garnishment, high health care costs, etc.), the court MAY take same into account in making the support lower. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
Do support magistrates tend to frequently lower child support based only on what the noncustodial parent says?
Q: I recently got a final support order. In my temporary order I had received a WHOPPING $40/week (being facetious here). We went back to court for the final order and now my son's father claimed he lost his job and cannot pay $160/month. The judge now made a $25/month court order. He didn't show any proof of this job loss and lied repeatedly under oath. Do support magistrates frequently make decisions of reducing child support without any proof from the noncustodial parent? It just seems like justice is not being served, especially since I brought in all the proof of income and expenses that I was asked to bring in and he came in empty handed.
A: David's Answer: The Judges role isn't necessarily to "challenge" the father's proof, but to hear the evidence presented & rule upon it. You had the ability to challenge the father's case, but I presume you represented yourself & thus (& this is meant with no offense) did did not know how to properly do so. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: The Judges role isn't necessarily to "challenge" the father's proof, but to hear the evidence presented & rule upon it. You had the ability to challenge the father's case, but I presume you represented yourself & thus (& this is meant with no offense) did did not know how to properly do so. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
Mother of 2 girls and my question is its is a good Idea to sing for joint custody even when maybe you could get full custody ?
Q: He its illegal the kids lawyer also find out he's sleeping on the same bed with my kids and his girlfriend also there's at least 10 adults and at least 6 kids on the house not including a few dogs and its only a 3 bedroom apt !! They live with my he has visitation every other weekend for About 34 hours ! He say he wanted full custody at first but now he says joint custody and I just want to get over this process so I could start the divorce process. And I have the physical custody he will only get visitation.
A: David's Answer: Your question involves an assessment as to the history of communication between you & the father as well as realisitc odds he may prevail on custody. With such a "busy" household, at least that factor may be construed against him, though there are many other factors to assess. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: Your question involves an assessment as to the history of communication between you & the father as well as realisitc odds he may prevail on custody. With such a "busy" household, at least that factor may be construed against him, though there are many other factors to assess. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
What steps should be taken next in a post-order of protection situation?
Q: My girlfriend successfully obtained an order of protection against her ex-boyfriend (ex as in 3 yrs her ex now) in June, which expired sometime this month due to him repeatedly calling her at work, and even contacting ME at my job. As stated, the order expired and already he has begun his harassment again by sending her an e-mail.. She freaked out and spam/deleted it and it can not be recovered. I'm thinking we should report it to the police today.. and save any future emails? We're also not sure how he got this e-mail address, but it wasn't voluntarily given to him. Am I missing anything ? We have moved 75+ miles away from the area he assumes we're in, so I tell her not to worry, but she's afraid of this idiot.
A: David's Answer: She can file a police report and can also re-file for an order of protection. If he contests the order of protection, however, the problem she may face is lack of proof. She can always contact her e-mail service provider & see if it was saved on their system. -- David Bliven, Westchester Domestic Violence attorney (www.blivenlaw.net)
A: David's Answer: She can file a police report and can also re-file for an order of protection. If he contests the order of protection, however, the problem she may face is lack of proof. She can always contact her e-mail service provider & see if it was saved on their system. -- David Bliven, Westchester Domestic Violence attorney (www.blivenlaw.net)
Friday, January 25, 2013
Is this financial spousal abuse? How do report this for records if I need proof in the near future for courts, lawyers,...?
Q: Spouse withdrew all money from joint bank account after a talk about separation on my part because he is verbally, physically and emotionally abusive. Says that I need to budget better. However, it is far beyond that. I am criticized for everything I spend, food, gas, misc. and everything I do. The other day I had to beg for money as he was going away on a business trip. Is this a form of financial abuse? We have a small child. I am a stay at home mom, housewife. What are my rights?
A: David's Answer: Assuming you are heading for a divorce, you should be aware that money in the bank (such as what you've described) is marital funds. However, if he goes out & spends it, it may be difficult to trace. As such, you should at the least consult with an experienced matrimonial lawyer right away. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: David's Answer: Assuming you are heading for a divorce, you should be aware that money in the bank (such as what you've described) is marital funds. However, if he goes out & spends it, it may be difficult to trace. As such, you should at the least consult with an experienced matrimonial lawyer right away. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
Can I file a report with the police for verbal, emotional, physical and now financial abuse from my spouse for records?
Q: Married for 4 years. Have a toddler. I am a housewife. Domestic abuse has escalated in the past recent months.
A: David's Answer: Especially if the abuse has gorwn physical, you may report it to the police and/or file for an order of protection. -- David Bliven, Westchester Divorce/Family law attorney (www.blivenlaw.net)
A: David's Answer: Especially if the abuse has gorwn physical, you may report it to the police and/or file for an order of protection. -- David Bliven, Westchester Divorce/Family law attorney (www.blivenlaw.net)
Can a parent take a child when it's not their scheduled visitation time?
Q: I have primary physical custody of my 5 year old son, EX and I share joint legal custody. She is ordered to have visits every other weekend from Friday at 6pm until Sunday at 6pm. Some rotated holidays and then 2 (1) week visits during the summer. She seems to think that she can go to our sons school and remove him anytime she wants. She lives 60 miles away. The school knows the custody situation and has informed me they would not allow her to remove him on their part but I'm curious as to what she is permitted or not permitted to do. The custody order does not include anything about that since it was put in place and signed when he was three months old. If she were to take him from the school without my knowledge it is a violation of the order correct? I've attempted to speak with her about it before but she just insists since she is the mother that she can do whatever she wishes and neither the school or I can stop her. She's threatened both me and the school with lawsuits if she's not allowed to do what she wants and take our son when she wants. I was under the impression that when one parent had visitation time that the other parent couldn't simply show up and take the child. Also that since she was only granted visitations on the weekends that I had visitation and custody at the other times and she can't take him from me. Is that true?
A: David's Answer: First, I agree you should bring the full agreement/order into an experienced attorney to review. Second, if you are in disagreement with her doing this, then you need to capture it in writing to her so she cannot later say in court that you "went along with it." Third, perhaps you need to speak with the attorney about doing an amendment to the agreement allowing her to pick-up the child from school on the Fridays she has access time. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: First, I agree you should bring the full agreement/order into an experienced attorney to review. Second, if you are in disagreement with her doing this, then you need to capture it in writing to her so she cannot later say in court that you "went along with it." Third, perhaps you need to speak with the attorney about doing an amendment to the agreement allowing her to pick-up the child from school on the Fridays she has access time. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Can I report this incident to the police or is this too late?
Q: While driving in a vehicle on a highway, husband and I were having a disagreement. Daughter was in child car seat in back. Husband was in back seat behind me. He opened the door while vehicle was in motion at highway speed on a highway. He did this twice a year ago on two separate occasions. If I reported this incident, would they file a report. Would an arrest be made? What would happen?
A: David's Answer: It is hard to say whether the police would arrest him, but your instinct to report it is sound. If he's irrational enough to do that, what else is he capable of doing? You should consider filing for divorce and/or an order of protection. -- David Bliven, Westchester Divorce/Family law attorney (www.blivenlaw.net)
A: David's Answer: It is hard to say whether the police would arrest him, but your instinct to report it is sound. If he's irrational enough to do that, what else is he capable of doing? You should consider filing for divorce and/or an order of protection. -- David Bliven, Westchester Divorce/Family law attorney (www.blivenlaw.net)
Still married for six year but having see my husband for four year dont know where he is or what to do.
Q: We got marring in baltimore in 06 that is where we used to like and in late 08to 09he was gone and i move to ny he is an american born in philadephia
A: David's Answer: You may file in New York, but if he lives out-of-state there may ultimately be a jurisdictional issue. That said, he would usually need to contest on the issue of jurisdiction before it would pose a problem. The larger problem is locating him - which may entail hiring a private investigator to do a diligent search. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: David's Answer: You may file in New York, but if he lives out-of-state there may ultimately be a jurisdictional issue. That said, he would usually need to contest on the issue of jurisdiction before it would pose a problem. The larger problem is locating him - which may entail hiring a private investigator to do a diligent search. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
Monday, January 21, 2013
If I Don't want my restraining order extended.... Why is the DA extenting it anyway?
Q: My ex broke a window in my apt... and i called 911. he got arrested & i got a RO. My RO expires on the 29th, I do not want it to continue. I never asked for it to begin with, but the DA says she's extending it and I have no say in the matter.
A: David's Answer: The DA has an independent right to proceed, as s/he represent the State, not you. That said, I encourage you to follow-up with a Dutchess/Westchester Co. criminal law lawyer. -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
A: David's Answer: The DA has an independent right to proceed, as s/he represent the State, not you. That said, I encourage you to follow-up with a Dutchess/Westchester Co. criminal law lawyer. -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
Is there anydivorce lawyer in the area of westchester county that i could file an uncontested divorce for as low as 1,000 dollars
Q: i need to file as soon as possible.
A: David's Answer: Yes, there are plenty of attorneys who have a sliding scale in Westchester Co. (I, for one, have a sliding scale on my fees based on ability to pay). I thus encourage you to shop around - a few such attorneys are listed on www.Avvo.com but there are many other sources as well. -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)
A: David's Answer: Yes, there are plenty of attorneys who have a sliding scale in Westchester Co. (I, for one, have a sliding scale on my fees based on ability to pay). I thus encourage you to shop around - a few such attorneys are listed on www.Avvo.com but there are many other sources as well. -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)
Can I get an Order of Protection against my sons stepmother?
Q: My sons stepmother has been harassing him for years. She calls him names like freak, retard, little sh-t...she calls him gay, flips him off, tells him to kiss her a-- etc. This has been going on for years and his father allows it and when my son retaliates, he punishes my son. This constant verbal abuse is affecting my son greatly but so far I have not been able to change custody. Can I file some kind of anti-harassment order?
A: David's Answer: To get an order of protection under NY law, one must allege & prove a violation of a designated criminal statute. "Bad names," while certainly an issue which may be raised in a custody/viitation proceeding, does not generally rise to the level of a "crime." -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
A: David's Answer: To get an order of protection under NY law, one must allege & prove a violation of a designated criminal statute. "Bad names," while certainly an issue which may be raised in a custody/viitation proceeding, does not generally rise to the level of a "crime." -- David Bliven, Westchester Domestic Violence lawyer (www.blivenlaw.net)
College expense obligations of a non-custodial parent
Q: I am the non-custodial father of a 21-year old who attends one of the most expensive college in the country. For the first two years, he was awarded an excellent financial aid package, which put my pro rata share of the expenses into the average SUNY expenses. In AUgust 2011, his grandmother passed away and left a very hefty inheritance to his mother (my ex.) Because of this, the college has significantly reduced his aid award. My ex expects me to pay my pro rata share of these significantly increased costs, which is more than 2 X the original cost two years ago. Is this equitable? It is not what I agreed to. To complicate the issue, she has since quit her job, which is going to significantly increase my pro rata share. Is this fair, and legal?
A: David's Answer: Here's the question: is the "agreement" a written settlement agreement which was incorporated into your divorce judgment? Furthermore, what are the provisions for modifying same? Does it prescribe an amount - or percentage - that you contribute towards college? These are among the factors which will bear on whether the order can be modified. -- David Bliven, Westchester Child Supprt lawyer (www.blivenlaw.net)
A: David's Answer: Here's the question: is the "agreement" a written settlement agreement which was incorporated into your divorce judgment? Furthermore, what are the provisions for modifying same? Does it prescribe an amount - or percentage - that you contribute towards college? These are among the factors which will bear on whether the order can be modified. -- David Bliven, Westchester Child Supprt lawyer (www.blivenlaw.net)
Can I file a violation of an order of protection based on the facts shown below?
Q: After suffering years of excessive corporal punishment from his father, my son recorded his father striking his brother repeatedly. I was able to get an Order of Protection that prohibits corporal punishment but the new judge was unwilling to limit visitation since there is a long history on our case. The next weekend my sons went to their fathers house and he got into an altercation with my son. One of the things that caused the fight was that he told my son he would accuse him of sexually abusing his brother in retaliation for him recording him striking his brother. During this fight he shoved my son up the stairs and proceeded to pound on the bed screaming at him. Can I file a violation? I am extremely worried about his threat to my son.
A: David's Answer: If the order prohibits corporal punishment, and he shoved the child, then this at least arguably is a violation. Your next step would be to file a violation petition. I also suggest to contact the children's attorney. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: If the order prohibits corporal punishment, and he shoved the child, then this at least arguably is a violation. Your next step would be to file a violation petition. I also suggest to contact the children's attorney. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
What is pro rata maintenance?
Q: Im in the process of divorce. I presently have custody of my two children. My husband has move out of the home. My lawyer just informed me that i have to pay my husband temporary pro rata maintenance because i make more money? What does this mean?
A: David's Answer: Merely because you make more doesn't necessarily mean you would pay maintenance. I agree with the prior poster you sent you the calculator link - a worksheet is also available: http://www.courts.state.ny.us/divorce/TMG-Works.... Your attorney should discuss with you, however, the likelihood this will happen, especially when contrasted with the child support he'll likely pay as well as assets each of you may have in your names. -- David Bliven, Westchester Co. divorce lawyer (www.blivenlaw.net)
A: David's Answer: Merely because you make more doesn't necessarily mean you would pay maintenance. I agree with the prior poster you sent you the calculator link - a worksheet is also available: http://www.courts.state.ny.us/divorce/TMG-Works.... Your attorney should discuss with you, however, the likelihood this will happen, especially when contrasted with the child support he'll likely pay as well as assets each of you may have in your names. -- David Bliven, Westchester Co. divorce lawyer (www.blivenlaw.net)
Are child custody lawyer fees tax deductible?
Q: My wife recently obtained a lawyer to file for sole custody of her kids from her ex husband. They have had joint custody for several years and just recently went for sole. Are these legal fees tax deductible?
A: David's Answer: Generally speaking, no. She may under certain circumstances file an application to have the other side reimburse her counsel fees. On the tax issue, I suggest you consult an accountant for a more definitive opinion. On the counsel fee issue, I encourage you to schedule a consultation with a NYC Child Custody lawyer. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: Generally speaking, no. She may under certain circumstances file an application to have the other side reimburse her counsel fees. On the tax issue, I suggest you consult an accountant for a more definitive opinion. On the counsel fee issue, I encourage you to schedule a consultation with a NYC Child Custody lawyer. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
NY - uncontested divorce filed and paper served but can not locate the person afterwards.
Q: In NY state, I filed for uncontested divorce and served the paper. Then he responded saying he's deployed overseas till Dec 2012. So I know that he is back now for sure but have no idea where he lives, what he does and etc now. He forwarded his mail to his grandma's house far from here and his family does not talk to me. Basically we over the email reached an agreement and stuff but all of sudden he disappeared saying "f*** you, I'm not going to give you what you want". He 's MIA and are not going to sign the uncontested divorce. Can't serve him the paper if I file for contested.
No kids, short marriage, still own a condo together (rented out) What are my options now??? I'm so frustrated and helpless..
A: David's Answer: If he did not file & serve an Answer to your Complaint - and assuming you properly served him - you may simply move for a default judgment. I would suggest you schedule a free consultation with a NYC Divorce lawyer. -- David Bliven, Bronx Divorce / Separation Lawyer (www.blivenlaw.net)
No kids, short marriage, still own a condo together (rented out) What are my options now??? I'm so frustrated and helpless..
A: David's Answer: If he did not file & serve an Answer to your Complaint - and assuming you properly served him - you may simply move for a default judgment. I would suggest you schedule a free consultation with a NYC Divorce lawyer. -- David Bliven, Bronx Divorce / Separation Lawyer (www.blivenlaw.net)
Asker: He did answer to my complaint saying he does not agree....
A: Merely sending a letter or e-mail to you is not a formal "Answer." A formal Answer would have the caption, state the paragraphs he's admitting & the paragraphs he's denying. He would also need to file same with the court along with an affidavit of service. If he didn't do all that, he's in technical default. I again encourage you to schedule a consultation appointment with a NYC Divorce lawyer to more fully discuss the case, as no definitive opinion can be rendered over the internet.
Summer visitation
Q: My ex husband (military) is taking our child (8 yrs.) for 5 weeks according to court papers. shouldn't he be home with the child for that period of time instead of leaving the child with someone while he goes to military work..thank you
A: David's Answer: It is certainly an argument you can make to modify the agreement, though if the agreement doesn't spell out that he must take vacation time during that period, then the agreement itself is vague. The agreement probably should be modified to say that if the father is deployed, then his visitation is cancelled or re-scheduled to an alternate make-up date. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: It is certainly an argument you can make to modify the agreement, though if the agreement doesn't spell out that he must take vacation time during that period, then the agreement itself is vague. The agreement probably should be modified to say that if the father is deployed, then his visitation is cancelled or re-scheduled to an alternate make-up date. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
What does this CPO-D/R implies when placed in the calendar of a court order?. Can you explain??
Q: this is in relation to a child support case. Unfortunately unable to pay due to lack of work.
A: David's Answer: It usually means the date is just on the calendar for administrative control purposes, often used as a "tickler" in the system to trigger a deadline for the Magistrate, such as when an order or decision is due. Nevertheless, I highly suggest you verify same by calling the Clerk's office. -- David Bliven, White Plains Child Support lawyer (www.blivenlaw.net)
A: David's Answer: It usually means the date is just on the calendar for administrative control purposes, often used as a "tickler" in the system to trigger a deadline for the Magistrate, such as when an order or decision is due. Nevertheless, I highly suggest you verify same by calling the Clerk's office. -- David Bliven, White Plains Child Support lawyer (www.blivenlaw.net)
Live in ny daughter n her baby live with us and we r moving can father of baby stop her from moving w us. She lives w us.
Q: She is 20 years old and cannot not afford to live by herself. We are helping her. But do to economy in Westchester county we r moving upstate. Could the father of the baby stop her from moving with us. We r wanting to move about 175-200 miles away we already have a place there. She never was married to the dad. What rights does he have.
A: David's Answer: A relocation case carries with it analysis of numerous factors, primary among them being his involvement with the child. If he's a very involved father, it makes the relocation case quite difficult. That said, planning a strategy now with a good lawyer will better the odds of winning the case. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: A relocation case carries with it analysis of numerous factors, primary among them being his involvement with the child. If he's a very involved father, it makes the relocation case quite difficult. That said, planning a strategy now with a good lawyer will better the odds of winning the case. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Can a prenup ever be beneficial in getting a marriage visa approved?
Q: Meaning, can it be used as proof that the beneficiary is not looking to abandon the US spouse in the future, and would not be getting monetary gain from the relationship? My brother was told that the main hurdle in his case would be convincing the immigration officer that the marriage is being entered for love reasons only. If the he, as a beneficiary, is willing to sign a legal agreement stating that if he were to leave his US citizen spouse, she would get everything he has + alimony etc., could it be used as proof that he is marrying solely for love and no other gain?
A: David's Answer: It is questionable whether such an agreement would benefit your immigration case. I would advise to shop around and get different opinions from immigration lawyers. If you are convinced it could have even a marginal impact & wish to proceed, then I encourage you to contact a Divorce/Matrimonial lawyer to schedule a consultation. -- David Bliven, White Plains Divorce lawyer (www.blivenlaw.net)
A: David's Answer: It is questionable whether such an agreement would benefit your immigration case. I would advise to shop around and get different opinions from immigration lawyers. If you are convinced it could have even a marginal impact & wish to proceed, then I encourage you to contact a Divorce/Matrimonial lawyer to schedule a consultation. -- David Bliven, White Plains Divorce lawyer (www.blivenlaw.net)
16 year old pregnate girls rights. Do I have a right to not tell them anything. Will this help so no one gets into trouble?
Q: Do they need my concent to take dna because alligations are going around that the father is over 21. I had a one night stand at a partie and became pregnate. Now people are starting to question about the wrong guy and i dont want anyone to get into trouble. What do I do? Can they make it happen with me pleading to the fifth?
A: David's Answer: If criminal charges are brought, the DA can request a court order to compel a DNA test. That said, if you wish to resist such an order, I would advise to schedule a consultation with a criminal law attorney. -- David Bliven, Bronx Domestic Violence lawyer (www.blivenlaw.net)
A: David's Answer: If criminal charges are brought, the DA can request a court order to compel a DNA test. That said, if you wish to resist such an order, I would advise to schedule a consultation with a criminal law attorney. -- David Bliven, Bronx Domestic Violence lawyer (www.blivenlaw.net)
Order protection violation ! Not indicted can the case be dismissed ?
Q: She confessed she invited me over the house mean while she have an order of protection against me. On the first court day I was not indicted when I saw the judge time was lower from 1-4 yrs to 1-1.5 I have another court date soon can the case be dismissed?
A: David's Answer: Are you in criminal court or Family Court? I assume from your posting its criminal court. If so, you would need to consult a criminal defense attorney. -- David Bliven, Bronx Domestic Violence lawyer (www.blivenlaw.net)
A: David's Answer: Are you in criminal court or Family Court? I assume from your posting its criminal court. If so, you would need to consult a criminal defense attorney. -- David Bliven, Bronx Domestic Violence lawyer (www.blivenlaw.net)
If the father smokes marijuana in the house, can he still gets visitation with the kids?
Q: he is been smoking for 22 years.
A: David's Answer: He may, but the visitation will likely be supervised until he undergoes random testing. Moreover, the court will principally be concerned with whether he does it while the children are in his care as well as the extent of his addiction. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: He may, but the visitation will likely be supervised until he undergoes random testing. Moreover, the court will principally be concerned with whether he does it while the children are in his care as well as the extent of his addiction. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
Can I move out of the state if the father loses visitation?
Q: mother have custody and father have visitation only.
David’s answer: The answer to your question depends on where you intend to move. If you intend to move to southwest Conneticut, or northeastern New Jersey, such that the father will still be able to exercise his visitation, then I don't necessarily see a problem (so long as you notify him in advance of the move). If the move is going to be longer than about 40 miles from where you presently live, however, then you will need to seek court permission. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
Can the father loses visitation if the father is intimidating the kids and asking them questions about the mothers personal life?
Q: asking the kids a lot of questions about mother
David’s answer: I would not say that, in itself, would defeat his claim for custody. Moreover, the proof of this would depend on how old the children are & whether they ultimately report that to their lawyer or to the Judge. But if the proof is there, then this would indeed be a factor against the father in his custody case. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
Do I need to sue my ex-girlfriend for domestic violence? And get the custody of my 2 daughters I had with her?
Q: The women that I was living with for three years, threw me out with all my cloths to the street. I was been mistreat and threat by her family, when she moved them in to the house. The woman and I had two daughters. I found out after she threw me out, she moved with her lover. She seldom let me see my daughters its been several months now. She told me do not come ever or will sue me, so that I can loose the custody. I am 25 years old I came illegal to this country, now I'm about to loose my daughters and will probably be deported or send to jell, she threaded me to call 911 and tell them I will rapture my daughters. She is a USA citizen..I am afraid that I will never see my daughters again. Please Help me!
David’s answer: First, you must immediately file for custody if you truely want your daughters to live with you instead of with her. The longer you wait, the more likely it will be that the Judge will wonder why you didn't file sooner. Second, as to whether you should file for an order of protection, her merely threatening to report you to USCIS is not grounds to file for same. If there are other reasons, you should review them with an attorney. Finally, you always have a risk of deportation. Whether that increases with her "reporting you" is something you should review with an immigration lawyer. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
Tuesday, January 15, 2013
I am a married man who had a child outside of marriage
Q: The child's mother is now taking me to child support. Why do they want my wife's finical information if she is not legally obligated to the child.
A: David's Answer: They may be asking for your wife's information if she helps pay for some of your household expenses and defrays more than your 50% share of same. If she does not, then I would object to disclosure of same (which forces their hand to file a motion so the Magistrate may consider whether to order that disclosure or not). -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: They may be asking for your wife's information if she helps pay for some of your household expenses and defrays more than your 50% share of same. If she does not, then I would object to disclosure of same (which forces their hand to file a motion so the Magistrate may consider whether to order that disclosure or not). -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
Should I have my QDROS done now or wait till ex husband retires?
Q: I have been divorced since May of 2009 my settlement agreement entitles me to 50% beneficiary of my ex husband's Pension, Retirement, and Deferred Compensation. He plans on retiring at 66 he will be 63 this year. My question is if he should he pass away before he retires am I still entited to 50 percent of his defined plans? Should I get QDROS done asap?
A: You should have the QDRO done now as if he retires early, or something else happens, the plan won't know you have any right to a portion of his pension. Additionally, whether you are entitled to receive a portion of the deferred compensation depends on the wording of the settlement agreement. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: You should have the QDRO done now as if he retires early, or something else happens, the plan won't know you have any right to a portion of his pension. Additionally, whether you are entitled to receive a portion of the deferred compensation depends on the wording of the settlement agreement. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
My husband applied for a divorce and I'm a green card holder only for 2 months.
Q: My husband applied for a divorce and I'm a green card holder only for 2 months. We are merried for 8 months.We got merried in church in my country 3 months ago.I went for Christmas to see my family for 10 days and 3 days as I been there he called me and said that he wants a divorce and he will send me my clothes and divorce papers.I was so in shock since we didn't fight or have any big problems in our merriage.I came back to NYC and he don't want me to stay in his apartment.I received a divorce papers and he put inside that our relationship has broken down irretrievably for a period of at least 6 months,which isn't true.I don't want to sign it because immigration lewyer told me that I will have problem getting a permanent green card.What can I do, can he forbid me to stay in his apartment?
A: David's Answer: You should double-check with the immigration lawyer, as usually immigration authorities look more at whether the marriage was legitimate at its inception. Furthermore, if you were only married 3 months, the divorce itself will be dismissed if the only grounds he alleged are that the marriage has irretrievably broken down for at least 6 months - he's at least 3 months early on his filing. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: David's Answer: You should double-check with the immigration lawyer, as usually immigration authorities look more at whether the marriage was legitimate at its inception. Furthermore, if you were only married 3 months, the divorce itself will be dismissed if the only grounds he alleged are that the marriage has irretrievably broken down for at least 6 months - he's at least 3 months early on his filing. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
Child support ny state
Q: I have to two sons going away for college this fall and both will be staying in the school dorms. My question is will my payments go directly to them or the same as now to the mother?
A: David's Answer: Unless the order is modified, you must continue to pay the mother. That said, there are a couple of different possibilities to modify: (a) you may get a credit off basic support for your contribution toward room-and-board, and/or (b) if the kids basically live at school and only return to the mother's house to visit on breaks, you may be able to get the basic support reduced or eliminated during the periods of time they live at school. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: Unless the order is modified, you must continue to pay the mother. That said, there are a couple of different possibilities to modify: (a) you may get a credit off basic support for your contribution toward room-and-board, and/or (b) if the kids basically live at school and only return to the mother's house to visit on breaks, you may be able to get the basic support reduced or eliminated during the periods of time they live at school. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
Can a child who is non-violent be placed in a secure detention facility by judge and what I can do to stop this? hire attorney?
Q: I filed a pins petition against my daughter for not going to school, staying out late, and smoking pot with her friends. She has never been in any other trouble and does not have a criminal record. She volunteers for work camp with her church over the summer and is a good kid most of the time. The judge gave her less than a month to get to school and strahten up if not he said he was going to send her to Rochester secure detention facility. This facility holds violent offenders who are mostly gang members and I worry about her being there because she is not that kind of child. I know that there are many other alternatives to this kind of facility that would better suit her if needed.
A: If it is just a PINS petition & there is no juvenile delinquency case against her, then the Judge would not have authority to send her to secure detention. You should definitely hire a good Family Law attorney in your area you has experience in PINS/JD cases. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: If it is just a PINS petition & there is no juvenile delinquency case against her, then the Judge would not have authority to send her to secure detention. You should definitely hire a good Family Law attorney in your area you has experience in PINS/JD cases. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Modification Of spousal Support
Q: I went to court to modify my ex's spousal support and the judge temporarily reduced it for a couple of months but the judge wants me to bring back to court proof that I had medical bills to pay. If I don't bring this proof in can I be liable for the reduction in spousal support and the arrears that I owe?
A: David's Answer: The short answer is yes, if you don't present the evidence the Magistrate's looking for, you certainly can lose your case & be liable for the areas. That said, you should follow-up by scheduling a consultation with a Family Law attorney in your area. -- David Bliven, Westchester Spousal Support attorney (www.blivenlaw.net)
A: David's Answer: The short answer is yes, if you don't present the evidence the Magistrate's looking for, you certainly can lose your case & be liable for the areas. That said, you should follow-up by scheduling a consultation with a Family Law attorney in your area. -- David Bliven, Westchester Spousal Support attorney (www.blivenlaw.net)
How do I turn custody affidavits into family court custody papers?
Q: My daughter relinquished her parental rights in March, 2012. We both completed the forms and I have continued to care for him. However, in some cases, the papers are frowned upon and I am told it isnt enough. I want to get full custody of him through the courts so my hands are not tied and I am able to do what I need to do for him without any obstacles. How legal are these forms, because my school district is telling me that it isnt enough to register him for school. Is there a way of getting custody without having to go into the courts? Can you please tell me all my options, thank you.
A: David's Answer: If the Child is living with you, but the mother's rights were terminated, there is likely a "placement" order from the court which serves the same effective purpose as a custody order. You should ask the caseworker assigned to the case to get you a copy of that order. If s/he isn't helpful, schedule a follow-up consultation with a Child Custody lawyer in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: If the Child is living with you, but the mother's rights were terminated, there is likely a "placement" order from the court which serves the same effective purpose as a custody order. You should ask the caseworker assigned to the case to get you a copy of that order. If s/he isn't helpful, schedule a follow-up consultation with a Child Custody lawyer in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can I take my ex to court for non payment and possibly increase if he doesn't have a job?
Q: More than 2 yrs ago I moved out of my parents home and have been paying for my daughters insurance and medical bills without extra payments from her dad. I have only received 1 Cola increase of $6.50 in 10 years because he has been unable to hold a job long enough for me to take him back to court. He is now in arrears but still has no job on file. Do I have any chance of seeing a judge let alone getting an increase?
A: David's Answer: If you cannot prove he's had an increase of income, then it will be quite difficult to get an increase. That said, you certainly should be able to enforce the arrears. I thus suggest that you schedule a follow-up consultation with a Child Support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
A: David's Answer: If you cannot prove he's had an increase of income, then it will be quite difficult to get an increase. That said, you certainly should be able to enforce the arrears. I thus suggest that you schedule a follow-up consultation with a Child Support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
A few years ago i had to move back home to my parents with my children, i moved out now and do not want to switch there school
Q: I have 3 school age kids all going to a public school. we recently moved out of my moms house into our first new home a few mile away. the school district is different and i dont want to move them. i have sole legally and physical custody what can i do so they can stay in the same school? they still sleep at my moms address 3-4 nights per week becasue of my work schedule. please help
A: David's Answer: If the issue is keeping your mother's address as the children's address to keep them in the same school district, I would advise to consult the school officials (they will probably allow them to finish out the school year). There have been instances in which parents have been prosecuted for defrauding the school district by sending child who did not qualify to the wrong school. This is more an educational law issue, though, so I'd encourage you to follow-up with an Education Law attorney in your area. -- Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: If the issue is keeping your mother's address as the children's address to keep them in the same school district, I would advise to consult the school officials (they will probably allow them to finish out the school year). There have been instances in which parents have been prosecuted for defrauding the school district by sending child who did not qualify to the wrong school. This is more an educational law issue, though, so I'd encourage you to follow-up with an Education Law attorney in your area. -- Westchester Child Custody lawyer (www.blivenlaw.net)
How can my husband become my daughter's second custodial parent?
Q: My ex husband expressed to my new husband that he needs to think about himself right now and doesn't want to have to make an effort to come see my daughter nor does he want to pay child support (yes. He is a horrible person, I know). He also hasn't paid child support in 6mths, only having to pay 25 dollars a month per our divorce agreement. My current husband has been financially taking care of my daughter and also participates in all extra curricular activities, basically "acting" as her real father. At this point, he wants my daughter to be his daughter legally. My daughter will be 11 yrs old in two monthsHer biological father rarely speaks to her and only makes an effort to see her occasionally. How can we start this process?
A: David's Answer: You may file a step-parent adoption proceeding, which would serve to terminate his parental rights. If he doesn't maintain a relationship with her, he will likely be found to have "legally abandoned" her and thus his consent to the adoption will likely not be required. -- David Bliven, Westchester Adoption lawyer (www.blivenlaw.net)
A: David's Answer: You may file a step-parent adoption proceeding, which would serve to terminate his parental rights. If he doesn't maintain a relationship with her, he will likely be found to have "legally abandoned" her and thus his consent to the adoption will likely not be required. -- David Bliven, Westchester Adoption lawyer (www.blivenlaw.net)
How do I get the NYS Child Support Enforcement Unit to stop Enforcement of my arrears, since I'm paying it off?
Q: I have been paying child support, plus an additional amount for arrears that accrued during a period of unemployment - of which my ex wife had taken me to court for over a year, with the intent of trying to get me put in jail. I was asked to bring in proof of a job search every month for almost 9 months during this process. it ended once I got a job and was making payments. The Child Support Collection Unit established the arrears payment, and I went on with my life. a year later, Im arrested on a traffic stop because my license was suspended due to child support. I called Child support enforcement after finding out the next day that my Bank account was levied; Their response was that the court agreement of payments has nothing to do with them, and offered me no direction.
A: David's Answer: The law was recently amended to give Family Court jurisdiction to hear cases involving SCU suspending licenses. I thus encourage you to file a petition on that issue & to schedule a follow-up consultation with a Child Support lawyer in your area. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: The law was recently amended to give Family Court jurisdiction to hear cases involving SCU suspending licenses. I thus encourage you to file a petition on that issue & to schedule a follow-up consultation with a Child Support lawyer in your area. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
How long does it take when you file a Custody Order of Modification in New York State?
Q: Presently my parents has custody of my daughter who is 8 yrs. old. They will eventually transfer my daughter to me (I live in Illinois) via Family Court. How long will this proceeding take?
A: David's Answer: The proceeding itself shouldn't take more than the 1 court date, but you didn't mention the mother. Be sure to include her as a party on the petition & be sure to serve her with a copy of the petition. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: The proceeding itself shouldn't take more than the 1 court date, but you didn't mention the mother. Be sure to include her as a party on the petition & be sure to serve her with a copy of the petition. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Now that i am married to the father of my son, how can i change my son's last name to his fathers last name?
Q: When i gave birth, i was not yet married however At the birth certificate of my son the name of the father is stated on it but my sons surname is still under my maiden lastname. I gave birth in Brooklyn new york however my son,my husband who is the father of my son and I are currently residing in the Philippines. What are the requirements we can prepare so that it will not be too costly on our part.
A: David's Answer: "name-change" proceedings in NYC are brought in Supreme Court - they are not. They are brought in Civil Court & the fee is only $65. I'd strongly advise to consult an attorney who handles name-change proceedings in NYC. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: "name-change" proceedings in NYC are brought in Supreme Court - they are not. They are brought in Civil Court & the fee is only $65. I'd strongly advise to consult an attorney who handles name-change proceedings in NYC. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Are there alternative ways to serve a family court summons to people that are issued by a NYS county court?
Q: I am trying to see if a summons can be mailed or left at someone's residence. I have a family offense petition being served OUT OF NYS. I do not want to put my friends or family in that position if I do not have to - can it be sent by mail or are there any other ways to serve the summons? If it was in NYS, a sheriff could do it, but I don't seem to have that luxury.
A: David's Answer: You must first attempt to serve it personally. Thus, you may hire a process server - I suggest you consult the website www.napps.com to find a server in that area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: You must first attempt to serve it personally. Thus, you may hire a process server - I suggest you consult the website www.napps.com to find a server in that area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
What recourse do you have when the noncustodial parent does NOT take the children to their activities?
Q: Hi, this is a follow up to my previous question. My children are 8 and 6. Their father has them every other weekend and two nights during the week. It is down between the lawyers that he needs to take them to their activities, birthday parties, etc and so when it is his time. What can you do about this? It is not fair to my children to miss their activities and birthday parties. I am trying to keep their lives as normal as possible. I cant begin to count how many times my son has missed karate because his father did not take him. Or my daughter missing out on dance!. How fair is that to them? Also, how many birthday parties they didn't attend because they were with their father and he couldn't be bothered to take them . He didn't want to spend time with the mothers! Please advise.
A: David's Answer: You should file a petition to hold him in violation of the order, if by "down between the lawyers" you mean a court order. If there's no court order requiring him to take the kids to the activities, you'll have to file a modification petition & ask for the order to be that specific. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: You should file a petition to hold him in violation of the order, if by "down between the lawyers" you mean a court order. If there's no court order requiring him to take the kids to the activities, you'll have to file a modification petition & ask for the order to be that specific. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
What happens if an illegal alien does not pay court-mandated child support?
Q: My son's father has never paid any child support. He was mandated to pay $40/week and he refuses to pay it. We still only have a temporary order of support, but on Thursday we go back for the second time. When the judge sees that he is in contempt of court, what will she do? Is there a possibility he will be arrested even though this is only our second court appearance? I am supposed to receive child support payments through Child Support Enforcement and they told me that once the arrears hit $1,500, they can take away his driver's license, tax returns, bank account assets, etc., but he has none of these things. So, what is the consequence for an illegal alien not paying child support? Will he just continue to get away with it? Can't a judge put him in jail for violating the court order?
A: David's Answer: If support has not been finalized, the Magistrate can't put him in jail (yet). You'll need to finalize the case first, then if he doesn't pay on the final order, the consequences are the same for an "illegal" immigrant as they are for anyone else - ultimately if he refuses to pay and there is no other method to enforce the order, he will be incarcerated. -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
A: David's Answer: If support has not been finalized, the Magistrate can't put him in jail (yet). You'll need to finalize the case first, then if he doesn't pay on the final order, the consequences are the same for an "illegal" immigrant as they are for anyone else - ultimately if he refuses to pay and there is no other method to enforce the order, he will be incarcerated. -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
How do I get out of false accusations of domestic assault against me? I live in canada, hamilton, ontario
Q: - 8 month old son involved
- the father of our son got me arrested, on false charges
- been going to womens shelters since I was pregnant
- he is extremely emotionally/ physically abusive
- I was hospitalized and given a wrong diagnosis 3 weeks after giving birth, because I didn't understand what he was doing to me and took blame for it
- I do not no how to prove he is an extreme narcassist, and very emotionally/ physically abusive to me
- The prosecutor was going to do a peacebond but now wants to see more about my medical records
- I was already refused further help from outpatient services becuause I did not apply to the program for the diagnosis
A: David's Answer: You would need to specify whether (a) your case is pending in New York or Canada, and (b) whether your case is pending in criminal court or Family Court. Providing this additional information will be essential in hooking you up with the right lawyer to answer your questions. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
- the father of our son got me arrested, on false charges
- been going to womens shelters since I was pregnant
- he is extremely emotionally/ physically abusive
- I was hospitalized and given a wrong diagnosis 3 weeks after giving birth, because I didn't understand what he was doing to me and took blame for it
- I do not no how to prove he is an extreme narcassist, and very emotionally/ physically abusive to me
- The prosecutor was going to do a peacebond but now wants to see more about my medical records
- I was already refused further help from outpatient services becuause I did not apply to the program for the diagnosis
A: David's Answer: You would need to specify whether (a) your case is pending in New York or Canada, and (b) whether your case is pending in criminal court or Family Court. Providing this additional information will be essential in hooking you up with the right lawyer to answer your questions. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Do I have to give my baby his fathers last name?
Q: My boyfriend and I are moving in together after 5 years. We are having a son in March. He is convinced that the only option for my son is to have his last name. He says that if I give the baby my last name it would alert social services that he is either not involved or that we have problems. My reasoning is that we are not married and likely won't so why should I call my son by a different last name to mine? Can you please advise?
A: David's Answer: You may give the child your last name if you desire. Merely listing your last name as opposed to the fatehr's will not trigger any report to DSS. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: You may give the child your last name if you desire. Merely listing your last name as opposed to the fatehr's will not trigger any report to DSS. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
Can I modify when one kid lives with me? NYS
Q: I have two kids, 18 and 20, for whom I have paid support for 12 years under a NYS decree. I have never missed a payment and for many years spent thousands extra to fly the kids for visits (mom moved to another state without permission.) Now my 20 year old son lives with me, in an apartment I built for him at his request. Once he moved in, I tried to work out a new agreement with my ex, but then filed for a support modification based on change of circumstances, thinking it was better to let the courts decide, especially since a new order will be necessary for the 18yo once the 20yo emancipates. Now my ex plans to counter sue for private college expenses of the 18yo. I earns 40K and have been paying $800/month. Should I withdraw the petition and just keep paying? I also have a 4yo.
A: David's Answer: First, yes you can file for modification, but if the prior support order was based on a written agreement which settled a divorce case, then the standard for modification is "unanticipated change of circumstance." Second, your ex can certainly counter-sue you for a portion of college tuition. Third, and more importantly, whether you should pursue your case or withdraw will depend on an analysis of the respective incomes as well as what the exact college expense you will likely be assessed with. -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
A: David's Answer: First, yes you can file for modification, but if the prior support order was based on a written agreement which settled a divorce case, then the standard for modification is "unanticipated change of circumstance." Second, your ex can certainly counter-sue you for a portion of college tuition. Third, and more importantly, whether you should pursue your case or withdraw will depend on an analysis of the respective incomes as well as what the exact college expense you will likely be assessed with. -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
If a noncustodial parents income doesn't increase can a judge increase child support?
Q: Noncustodial parent is on public assistance married and has two dependents.
A: David's Answer: If the non-custodial parent is on public assistance, it means s/he isn't working. However, just as they must make a diligent search for a job and/or participate in workfare or jobs training programs as a condition of their continued receipt of benefits, they can be required to submit the same proof to the Support Magistrate. Indeed, the Magistrate is entitled to make an independent determination as to whether his/her job search is "diligent" and if it is not, can consider making a "needs-based" order. -- David Bliven, Weschester Child Support lawyer (www.blivenlaw.net)
A: David's Answer: If the non-custodial parent is on public assistance, it means s/he isn't working. However, just as they must make a diligent search for a job and/or participate in workfare or jobs training programs as a condition of their continued receipt of benefits, they can be required to submit the same proof to the Support Magistrate. Indeed, the Magistrate is entitled to make an independent determination as to whether his/her job search is "diligent" and if it is not, can consider making a "needs-based" order. -- David Bliven, Weschester Child Support lawyer (www.blivenlaw.net)
Family court electronic testimony for child support
what is considered audio visual? would that be skype or cam. Also i dont live in the same state, can i send copies of my documents for disclosure or do they need originals the reason i ask is because it states that it has to be signed by a notary public
David’s answer: "Audio-Visual" technically means both hearing you & seeing you. However, in most instances, giving "electronic" testimony means testifying over the phone. Usually in a child support proceeding, you must designate where you will give the testimony, which in most instances is the SCU in your state, or a notary public or lawyer's office. Additionally, you should strive to send them the originals - I suggest to send them to the Clerk's Office via certified mail, return receipt. -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
I am the petitioner and have my first hearing for child support coming up Do i have to fill out all question?
on my financial disclosure sheet there is a section where it asks me income of other members in my house hold.. If I leave that section blank, will it be an issue ? Am i obligated to fill this part out
Asked about 20 hours ago in Child Support
David’s answer: The real question would be: is there a good reason not to disclose it? If not, you should put it down. While some people do not initially disclose it, if there's an attorney on the other side, s/he will probably catch the non-disclosure & ask that it be disclosed anyway. It really only becomes relevant on issues such as that other person contributing more than 50% of household expenses and/or if combined parental income exceeds the statutory cap (as of this writing, $136,000) -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)
My ex Girl is having our baby, We are good friends but the relationship is just that. What is the best legal advice?
Q: for the present and the future. I will and want to the best my kid . What is legal position. Since we are not married.
David’s answer: Other than to say that you will be responsible for the support of the child, as well as have a right to visit with the child (and the child will in turn have a right to inherit from you), I am otherwise unclear on what "legal position" you're inquiring about. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Saturday, January 12, 2013
What to do if I don't have a lawyer for a court case? I don't have money to pay for an attorney because I am not working.
Q: My sons father was granted custody back in 2010 because my son had walked out of the apartment the judge felt like he(my babydaddy) and I can come to a mutual agreemenr on how the visitation will go about but once he obtained custody he dissapear and reappeared whenever he wanted to. I last saw my son on july of 2012, my sons father passed away on Nov 17, 2012 in Virginia. The paternal grandmother didn't want to return my child back to me so I went an petiton for a Writ of Habeas Corpus,she had went to the Virginia courts and petition for a custody order where the court granted her a temporary order of custody, her ciunsel also petitioned a motion for jurisdiction just right before the court date scheduled for Dec 20,2012 in which it was adjourned for Jan 31,2013 because the judge was ill.
A: David's Answer: Generally if you earn below about $35,000/year, you would qualify for free, court-assigned counsel. You would simply bring in proof of how you support yourself on the next court date & ask the Judge to appoint you counsel. If for whatever reason you do not qualify, or wish to explore hiring a private attorney, there are many (especially in the Bronx) who have sliding scales on their fees. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: Generally if you earn below about $35,000/year, you would qualify for free, court-assigned counsel. You would simply bring in proof of how you support yourself on the next court date & ask the Judge to appoint you counsel. If for whatever reason you do not qualify, or wish to explore hiring a private attorney, there are many (especially in the Bronx) who have sliding scales on their fees. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
Can an illegal alien be deported for admitting under oath in family court that he is saving money to commit marriage fraud?
Q: My son's father has not paid a dime of child support. He currently owes lots of money in arrears. During our last court date he said in court that he couldn't pay child support because ge was saving $15,000 to marry someone to give him a green card. My question is two-fold: 1) if INS is contacted, would they possibly go to our next court hearing? 2) what is a likely consequence for an alligal immigrant not paying child support? He obviously doesn't have a driver's license, professional license, tax returns, lottery winnings, bank accounts, etc. Will I ever get child support from him?
A: David's Answer: First, very unlikely INS will appear in court. You always have the option of mailing a copy of the decision to them, but if he's illegal that's an independent basis to deport him (i.e., they won't need to added evidence of him not paying child support). In terms of collecting child support from him, if that's your aim, you may actually do yourself a disservice if he's deported, as then it will be even harder to track him down & get him to pay. There are a variety of methods of getting someone to pay, such as freezing bank accounts & entering a garnishment on contractor wages (if he's a 1099). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
A: David's Answer: First, very unlikely INS will appear in court. You always have the option of mailing a copy of the decision to them, but if he's illegal that's an independent basis to deport him (i.e., they won't need to added evidence of him not paying child support). In terms of collecting child support from him, if that's your aim, you may actually do yourself a disservice if he's deported, as then it will be even harder to track him down & get him to pay. There are a variety of methods of getting someone to pay, such as freezing bank accounts & entering a garnishment on contractor wages (if he's a 1099). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
How can I become emancipated in the state of new York?
Q: I'm 17,I have a job and am getting my drivers license soon and want to move out but I heard first I must become emancipated first. how can I go about this situation?
A: David's Answer: There are several considerations to doing this before you take action. First, you may forfeit you ability to receive support from either parent if you move out without their consent. Second, you would then potentially lose their support if you wish to attend college. -- David Bliven, Westchester Family Law lawyer (www.blivenlaw.net)
A: David's Answer: There are several considerations to doing this before you take action. First, you may forfeit you ability to receive support from either parent if you move out without their consent. Second, you would then potentially lose their support if you wish to attend college. -- David Bliven, Westchester Family Law lawyer (www.blivenlaw.net)
I was naive and underage at a Cathollic college and my teacher took advantage of me. I was young and idealistic. I had a child.
Q: Is the colllege liable for hiring this amoral man? To what extent does he have responsibiliy for a child if I was unable to locate him at the time. Does his liabiliity expire if the child becomes of age? Not surprisingly the marriage was very short term once I understood what he was about. He never paid child support.
A: David's Answer: If you married your teacher, it would then be extremely difficult to hold either the school or the teacher legally liable on that basis. Nevertheless, you certainly have the remedy of divorcing him and suing him for child support. I therefore encourage you to follow-up with a Divorce lawyer in your area. -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)
A: David's Answer: If you married your teacher, it would then be extremely difficult to hold either the school or the teacher legally liable on that basis. Nevertheless, you certainly have the remedy of divorcing him and suing him for child support. I therefore encourage you to follow-up with a Divorce lawyer in your area. -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)
Can a 16 year old female and 20 year old male legally date in New York state?
I know a girl who is 16 years old and will be 17 in June and wants a relationship with a 20 year old male who has mutual feelings can he or she get into any legal trouble?
David’s answer: Merely dating isn't a crime. Having sexual relations before she turns 17 would be. -- David Bliven, Westchester Juvenile Delinquency attorney (www.blivenlaw.net)
Prosecutor want her to press charges
Q: My neighbors grandson was attacked on his way from school by a young man while his two friends watched her grandson fought back and was basically not hurt however the police was near by and saw the incident and arrested the three boys. A social worker called my neighbor and asked if she wanted to press charges, my neighbor told her no, she then told my neighbor of other option by which the boys can be punished. The prosecutor for the case called her too, she repeatably told the prosecutor she does not which to press charges as this would mean her grandson missing school (9th grade) to go to court etc. The prosecutor is insisting that she press charges and has sent her a subpoena for them to appear at family court. She does not want to press charges. WHAT CAN SHE DO?
David’s answer: I cannot necessarily advise to disobey the subpoena, assuming it was properly served. But she does have the option of hiring an attorney to represent her and her son on the subpoena issue. -- David Bliven, Bronx Juvenile Deliquency lawyer (www.blivenlaw.net)
After 5 days can i make police report:
Q: two kids fight both autism 14 years bulling for the past 4 month ,, to 18 years , 18 years hit 14 years kid.
David’s answer: Yes, you may still file a police report of the incident. If the incident happened at school or on the bus, you may wish to notify the school and/or bus company as well. -- David Bliven, Bronx Juvenile Delinquency lawyer (www.blivenlaw.net)
Thursday, January 10, 2013
Ex-husband gave Social Security subpoenaed finical records to falsely make me lose it. What can I do?
Q: Records were subpoenaed for my divorce husband claimed I was running a home business as I was on SSD. This is not true nor did he ever claim it prior to me filing for divorce. He also took all my finical records and gave them to the Dad of a child from a previous marriage to use against me to lower his support. I lost SS and have been battling for years with them back and forth. I want to know what is the law in NYS regarding private documents subpoenaed for a particular case and what recourse do I have? (not with SS) I am only trying to understand 1. Is it against the law being that a matrimonial is not public record in the state of NY? 2. What can I do about it if anything?
A: David's Answer: Depending on his income, if you have lost yours through his wrongful conduct, then you MAY be able to go back to the divorce court & ask for a modification of maintenance (or ask for maintenance if you didn't in the initial case). I also agree if he turned over your financial records to a third party without your consent, the Divorce Court MAY consider sanctioning him. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
A: David's Answer: Depending on his income, if you have lost yours through his wrongful conduct, then you MAY be able to go back to the divorce court & ask for a modification of maintenance (or ask for maintenance if you didn't in the initial case). I also agree if he turned over your financial records to a third party without your consent, the Divorce Court MAY consider sanctioning him. -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)
Can I get alimony based on supporting his career during marriage?
Q: My ex and I was married for 10 year. During that time he went to medical school and became a doctor. I am a social worker. We have two children together. He left me and got someone else pregnant. I supported him during his time during medical school, residency and fellowship program. If it possible to get spousial support based on this?
David’s answer: First, it must be said to make sure not to mix-up two concepts: maintenance (i.e., alimony) & your claim for a share of his degree (1 poster appears to have done so). Your contributions as a spouse to the attainment of his degree is absolutely a factor in considering whether to award you maintenance. Nevertheless, the Court will also consider your respective incomes as well as your receipt of assets among a host of other factors in assessing the maintenance issue. The cited "O'Brien" case relates to the enhanced earnings of an asset (i.e., the degree), NOT to the maintenance issue. You absolutely have a claim to a share of his medical degree & license. The next question would be whether he'd get an off-set if your social worker degree and/or license was earned during the marriage. -- David Bliven, Bronx Co. Divorce lawyer (www.blivenlaw.net)
Can I legally force ex to be more involved?
Q: My ex and I have been seperated for almost two years now. We are not divorce, however he resides with his new girlfriend and their two children. We where married for 10 years before he moved out and lived in a state we came to for his schooling. Now I am here alone with no family support. I work full time and our two children live with me. He gets the kids every other weekend however offers no additional support anytime throughout the week. He does not want to give me sole custody. Can I legally force him to pickup up the kids from school sometimes during the week? Also his girlfriend is of different religion and now he is trying to teach our kids that, is there anyway i can prevent that? He does not practice his girlfriend's religion.
David’s answer: I agree your move should be to file a petition for child support as well as for custody. If he refuses to pick-up the children from school & you need to incur an expense for either an after-school program or a babysitter, then child care expenses are generally a mandatory add-on to the bsic level of support. -- David Bliven, Bronx Co. Child Support lawyer (www.blivenlaw.net)
How do I prepare for my death and for my family to take legal custody of my child?:
Q: My client has cancer which has spread to her liver. She wants her family and husband to have legal custody of her 10 year old child. What are the legal steps that she must take?
David’s answer: First, she should have a will done. Second, if she is currently married & her husband lives with her, there is no court filing required for him to have custody of the child. If she & the husband are separated and/or she wants some arrangement whereby a family member of hers will have joint custody, then she would need to file a custody petition in court. -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)
Tuesday, January 8, 2013
Do I have a right to refuse weekend visit after other children in house were removed by CPS? Filing modification papers Monday.
Q: My ex and I have a 5 year old son, I have primary custody and we share joint legal custody. Friday evening CPS called to let me know that the other children in my Ex's custody(not my kids) were removed and made a recommendation that my son NOT go to his mothers house for visits and I file for an emergency stop visitation pending a court date. I'm going Monday to file the paperwork. She wants to take our son tomorrow for the day after she cancelled the weekend visit. Do I have a right to refuse the visit because of whats happened? CPS said physical abuse was involved and was reported by the older child's school. Can I refuse her to take him??
A: David's Answer: It would be best before you take such an action (assuming there is an outstanding court order stating that this weekend is her weekend) that you get CPS to confirm their recommendation in writing (at this late time, either via e-mail or fax). At the least, this serves to go a long way towards protecting you from a charge that you willfully violated the court order. As an aside, I think it's ludicrous that CPS doesn't file their own application if they fell so strongly about it - as opposed to passing the buck onto you. -- David Bliven, Westchester Child Custody attorney (www.blivenlaw.net)
A: David's Answer: It would be best before you take such an action (assuming there is an outstanding court order stating that this weekend is her weekend) that you get CPS to confirm their recommendation in writing (at this late time, either via e-mail or fax). At the least, this serves to go a long way towards protecting you from a charge that you willfully violated the court order. As an aside, I think it's ludicrous that CPS doesn't file their own application if they fell so strongly about it - as opposed to passing the buck onto you. -- David Bliven, Westchester Child Custody attorney (www.blivenlaw.net)
Is it illegal for a 19 yearold to date a 14 In New York?
Q: My boyfriend is 19 and I am 14 . We haven't done any sexual activity or had sexual intercourse. We kiss and hold hands. But he turn 20 in June and I don't want him to go to jail
A: David's Answer: The short answer is yes because you are underage. Depending on the exact sexual act performed, it is either a misdemeanor or felony. Your "agreement" to the relationship will not be a defense to his prosecution. As such, you are best advised to hold off on sexual relations until you are of the age of consent (17). -- David Bliven, Westchester Child Custody attorney (www.blivenlaw.net)
A: David's Answer: The short answer is yes because you are underage. Depending on the exact sexual act performed, it is either a misdemeanor or felony. Your "agreement" to the relationship will not be a defense to his prosecution. As such, you are best advised to hold off on sexual relations until you are of the age of consent (17). -- David Bliven, Westchester Child Custody attorney (www.blivenlaw.net)
How can I prove the is not in school or living home with her mom?
Q: I have been paying child support for 19 years. I know the child does not live home or is in school but I don't know how to prove it to the court house. I would like some direction with proving this to the court whom is requesting more money from me. I only know the child's mother for three months which she left me, when the child was born she requested support which I have been paying for nineteen years now. The child have never bought a card on any giving occasion which I feel it's not fair to continue to support someone that does not care.
A: David's Answer: There are a variety of ways to prove that. One way would be to subpoena the child & put him under oath. Another would be to hire a private investigator. Still another way would be to have an attorney or investigator run his credit report (to see if the credit report itself lists a different address). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
A: David's Answer: There are a variety of ways to prove that. One way would be to subpoena the child & put him under oath. Another would be to hire a private investigator. Still another way would be to have an attorney or investigator run his credit report (to see if the credit report itself lists a different address). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
Question re: jurisdiction of child support case per UIFSA
Q: I live in ny my child mother who live in phila,Pa took me to family court by way of Pa . wiil i b guide Pa laws or NY for suppor: and cand she collect welfare and child support
David’s answer: I disagree with the opinion that PA would have jurisdiction if the child lived in PA for more than 6 months. That is generally the standard used for custody/visitation cases. The standard used in support cases is pursuant to the Uniform Interstate Family Support Act (UIFSA), which does NOT use "home state jurisdiction" utilized in custody/visitation cases. Instead, they must establish valid jurisdiction over you, meaning for instance the child resides there at your direction, they served you in PA, the child was conceived by you in that state, etc. If PA does NOT establish jurisdiction, then the case would need to be sent by the PA court to be heard in New York via the statute's "two-state proceeding" provisions. I highly encourage that you schedule a consultation with BOTH a PA Child Support lawyer AND a Bronx Co. Child Support lawyer. -- David Bliven, Bronx Co. Child Support lawyer (www.blivenlaw.net)
What to do regarding Child Custody
Q: my husband was having an affair changrd locks in house that we were renting took my 14 year old abonded the house and moved and would not give me the address the state of connecticut had faled me and my child he left me penniless...now he dropped off my daughter saying he didn t want her but wont let the school send records saying he has got custody and also divorced me without my knowledge how does and did he pull all this off he threw my clothes out destroyed everything i owned and left me with nothing and we are divorced without my knoeledge he resides in connecticut i reside in ny
David’s answer: First, you need to get ahold of that CT divorce decree. You may indeed need to move to vacate that decree for want of jurisdiction (i.e., failing to properly serve you). Before you bring anything in New York, the Court will want to see a copy of that prior order. Indeed, if it addresses custody (and it probably does), then you MAY need to move to modify as part of the CT divorce case. You may have an argument, however, that New York take jurisdiction on an emergency basis. -- David Bliven, Westchester Co. Child Custody attorney (www.blivenlaw.net)
Being indicated in maltreatment of a child, would that sway being able to get a pistol permit:
Q: I have been indicated in maltreatment of a child but was in the process of the paperwork for a pistol permit, will this affect the permit? Will I be able to get one?
David’s answer: It may be a factor, so your best move is to request an Administrative Review of the indicated report, and if you don't prevail there, request a fair hearing. -- David Bliven, Westchester Co. Child Abuse/Neglect Defense Attorney (www.blivenlaw.net)
Friday, January 4, 2013
My ex never discusses anything with me. He just demands or tells me how he wants things to happen
Q: My ex never discusses anything with me. He just demands or tells me how he wants it to happen. As far as I am concerned he is not entitled to do so. He has to discuss matters with me. The courtorder states that I have the final decision. In this case as an example our child needs a phone. He decides that he will buy the phone and that I am responsable for the rest. Is this correct. This is part of the multitute of run ins we are having. I am presently speaking to him as little as possible. I do not like the fact that he "lays down the law", so to say. We have shared custody of our 11 year old child who is living with me. In how far can he demand what the childsupport he pays is used for? Can you specify and list what commonly child support is used for? I have always kept the additional expenses such as summer camp and sports etc to a minimum. In fact I do a lot of research and have found the least expensive sulutions. I have saved him hundreds and hundreds of dollars. Also he is suppose to pay me reembursements within a month but makes me wait months and months. It is now december and he still owes me from August. It is exhausting and time consuming not to mention costing money to take him to cours and is it evenworth it to take him to court over this?. He pays the child support on time as he knows this is mandated by law, but he is basically doing whatever he feels like doing with total disregard of me as far as paying me back the additonal expenses in a timely manner.
Please advice me on this.
A: David's Answer: Basic child support is usually intended to cover basic living expenses of the child, such as housing, utilities and clothing. It is important to note, however, that the order will almost never specify which expenses it is intended to cover - it will only specify an amount based upon a % of his income. There are also mandatory add-ons to the basic level of support: unreimbursed child care, unreimbursed health care & unreimbursed educational expenses. That said, you did not specify whether you have a child support order - do you? If not, I'd highly suggest to file a petition to resolve the matter. If you do, perhaps its time to revisit the issue of support (especially if its been more than 3 years since the last order was set). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
Please advice me on this.
A: David's Answer: Basic child support is usually intended to cover basic living expenses of the child, such as housing, utilities and clothing. It is important to note, however, that the order will almost never specify which expenses it is intended to cover - it will only specify an amount based upon a % of his income. There are also mandatory add-ons to the basic level of support: unreimbursed child care, unreimbursed health care & unreimbursed educational expenses. That said, you did not specify whether you have a child support order - do you? If not, I'd highly suggest to file a petition to resolve the matter. If you do, perhaps its time to revisit the issue of support (especially if its been more than 3 years since the last order was set). -- David Bliven, Bronx Child Support lawyer (www.blivenlaw.net)
MY SONS FATHER WAS ARRESTED FOR SEXUAL ABUSE TWICE WITHIN A YEAR HES BEEN IN PRISON FOR SEVEN YEARS WHAT RIGHTS DOES HE HAVE?
Q: THE FIRST ARREST WAS FOR HAVING SEX WITH A 13 YEAR OLD IT WAS SETTLE A MONTH LATER HE WAS ARRESTED AGAIN FOR THE SAME THING DIFFERENT GIRL (16) HES BEEN IN JAIL FOR SEVEN YEARS GETS OUT IN A FEW MONTHS I HAD TO BLOCK HIS MAIL FROM JAIL CAUSE HE WOULD THREATEN ME WITH CALLING ACS ON ME AN TAKING HIM AWAY FROM ME FOR NO REASON I HAVE SAVED ALL THE LETTER HE FILED FOR A DNA TEST BUT IT WAS DISMISSED CAUSE I COULD NOT SHOW DUE TO THE WEATHER I LIVE IN NY AN WOULD LIKE TO KNOW HIS RIGHTS I DO NOT TRUST HIM WHEN HE DOESNT GET HIS WAY HE GETS ANGRY AN SPITEFUL HE MIGHT KNOW WHERE I LIVE AND IM AFRAID OF HIM SHOWING UP HIS FAMILY BARELY SEES THE CHILD OR CALLS FOR HIM I WORK AN PROVIDE EVERYTHING FOR MY CHILD
A: David's Answer: First, the Court would certainly take into consideration any conviction for sex abuse he may have. I thus suggest you get a copy of the certificate of conviction (especially if it occurred in another state). Second, there mere fact that he has such a conviction would not necessarily deny him visitation rights. Indeed, there was a very recent Court of Appeals decision stating the same thing. Thus, I would suggest that you counter any visitation filing he makes with a petition for child support, as with (theoretical) rights come responsibilities. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
A: David's Answer: First, the Court would certainly take into consideration any conviction for sex abuse he may have. I thus suggest you get a copy of the certificate of conviction (especially if it occurred in another state). Second, there mere fact that he has such a conviction would not necessarily deny him visitation rights. Indeed, there was a very recent Court of Appeals decision stating the same thing. Thus, I would suggest that you counter any visitation filing he makes with a petition for child support, as with (theoretical) rights come responsibilities. -- David Bliven, Bronx Child Custody lawyer (www.blivenlaw.net)
If one is given legal custody of a mentally healthy minor; would one be able to transfer the temporary legal custody?
Q: I don't know if her mother is going to give me custody if I tell her that her grandmother wants to rise her; and put her in school where she lives. The child lives in Pennsylvanian at the moment; I live in New York and her grandmother lives in North Carolina.
A: David's Answer: If you have an order of custody of the child, then the grandmother would not be able to enroll the child in school (among other things) because she would then not have an order in her favor. You could, however, have an order crafted which gives both you & the grandmother "joint custody," while specifying that the child will live primarily with the grandmother. -- David Bliven, Bronx Co. Child Custody Attorney (www.blivenlaw.net)
A: David's Answer: If you have an order of custody of the child, then the grandmother would not be able to enroll the child in school (among other things) because she would then not have an order in her favor. You could, however, have an order crafted which gives both you & the grandmother "joint custody," while specifying that the child will live primarily with the grandmother. -- David Bliven, Bronx Co. Child Custody Attorney (www.blivenlaw.net)
Hi, My daughter is living with me for a year can I stop my child support for that year?
Q: she is 10 and Im working a getting custody from my home state of North Carolina
A: David's Answer: Yes, but if there was a prior court order, you will need to file a petition in court to stop the support. You can also file your own petition seeking support from the other parent. There may also be jurisdictional issues (i.e., where you're allowed to file the applications), so I highly suggest you make a follow-up appointment to consult a Bronx Co. Child Support lawyer. -- David Bliven, Bronx Child Support Attorney (www.blivenlaw.net)
A: David's Answer: Yes, but if there was a prior court order, you will need to file a petition in court to stop the support. You can also file your own petition seeking support from the other parent. There may also be jurisdictional issues (i.e., where you're allowed to file the applications), so I highly suggest you make a follow-up appointment to consult a Bronx Co. Child Support lawyer. -- David Bliven, Bronx Child Support Attorney (www.blivenlaw.net)
Up to what age is a parent financially responsible for their child in NY if he is a part time student taking only 1 class?
Q: My child will be 23 on April 1st. He is working part time. He is under the impression that we have a legal obligation to support him until he is 24 since he is taking 1 course in college. He is currently failing the class which is a basic English course.
A: David's Answer: Child support statutorily cuts off at age 21, unless there is a valid, written agreement to the contrary (which in turn was incorporated into an order/judgment). As such, I suggest that if there was such an agreement, you take the time to have it reviewed by a Westchester Co. Child Support lawyer. -- David Bliven, Westchester Child Support Attorney (www.blivenlaw.net)
A: David's Answer: Child support statutorily cuts off at age 21, unless there is a valid, written agreement to the contrary (which in turn was incorporated into an order/judgment). As such, I suggest that if there was such an agreement, you take the time to have it reviewed by a Westchester Co. Child Support lawyer. -- David Bliven, Westchester Child Support Attorney (www.blivenlaw.net)
My ex- wife is taken me to court 4 support but she has my so and i have my daughter
Q: i got custody off my daughter in oct 2012 and a suspended order of custody as well ,will i have to pay her support
David’s answer: Generally when there is a split custody situation the court calculates child support you would pay to her for the child in her care, and then the court would calculate support she would pay to you for the child in your care. However, you must have your own cross-petition requesting support for the Court to do this. If you do not, then the Court will only calculate support you owe to her. -- David Bliven, Westchester Child Support Attorney (www.blivenlaw.net)
Is spouse entitled to share property?
Q: If I bought a house when I was separated from my spouse will my spouse be entitled to a share of that property during the divorce. It was purchased when separated and only my name is on the title. Also if he gets sick during separation can I be held responsible for his medical bills.
David’s answer: Generally all property bought before the divorce is actually filed is considered "marital property." That said, the Court can absolutely consider whether the house was bought during a period of physical separation as impacting the percentage she would receive of the equity value. Furthermore, a similar analysis is done for debts. If he incurred debts during a period of physical separation, by statute they are still characterized as marital debt until the divorce is actually filed. However, the Court is no obligated to assess you with 50% of the debt - instead the Court will determine what is "fair" pursuant to the laws of Equitable Distribution. -- David Bliven, Bronx Divorce Attorney (www.blivenlaw.net)
I am the non-custodial parent and my daughter will turn 21 on 9/16/13. How do I terminate my support, which is $1,100 a month
Q: Does the state of NY automatically close my child support case on my daughter's 21 st birthday?
David’s answer: They should, assuming there was no valid, written agreement (which was then incorporated into an order) extending the emancipation time. If the order is garnished from your pay, then you want to monitor it closely to verify whether it stops. If it doesn't, then you should immediately do 2 things: (1) file a protest with SCU, which may serve to halt the dispersal of the funds they collected, and (2) file a petition to terminate the order. -- David Bliven, Westchester Child Support Attorney (www.blivenlaw.net)
I have been legally separated from my spouse for 10 years on and off am I still entitled to his retirement in New York
Q: Am I entitled to my spouses retirement even though legally seperated
David’s answer: The answer to your question depends laregly on what you mean by "legally separated." If you mean via a "Separation Agreement," then I agree with the other postings that such Agreement would usually address division of assets. If you mean simply living apart, but no formal Separation Agreement was done, then the answer is yes, all property which accrues during a marriage & up to the filing of a divorce case is generally "marital property." That said, the Court will still determine what percentage you receive is fair. -- David Bliven, Westchester Divorce Attorney (www.blivenlaw.net)
Wednesday, January 2, 2013
Up to what age is a parent financially responsible for their child in NY if he is a part time student taking only 1 class?
Q: My child will be 23 on April 1st. He is working part time. He is under the impression that we have a legal obligation to support him until he is 24 since he is taking 1 course in college. He is currently failing the class which is a basic English course.
David’s answer: I also agree. Child support statutorily cuts off at age 21, unless there is a valid, written agreement to the contrary (which in turn was incorporated into an order/judgment). As such, I suggest that if there was such an agreement, you take the time to have it reviewed by an Orange/Westchester Co. Child Support lawyer. -- David Bliven, Westchester Co. Child Support lawyer (www.blivenlaw.net)
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