Tuesday, February 26, 2013

How can i get my children back form foster care with a family member?

Q:  my two beautiful children have been in foster care for the pass two years . i feel that my court apportioned lawyer is not doing enough . in terms of pushing for me to get my children back . please help me.

A:  David's Answer:  You should shop around & set-up consultations with Westchester Co. attorney who handle child protective matters. There are listings of such attorneys on the Avvo website as well as other attorneyclient matching websites.  -- David Bliven, Westchester Child Neglect attorney

Saturday, February 23, 2013

My children 13, 16 and 18 have refused to come with me (their father) for any visitation since my ex and I separated and Divorce

Q:  My 13 ,16,18 year old kids refuse to come with me when I go to pick them up for my scheduled visitation. They say they are not ready to see me or are not comfortable etc. their mother says she encourages them to come but can't make them.

They email me the day of visitation saying they won't go and not to even come by or they tell me they aren't coming when I arrive.

Do they have a legal right to refuse? There is no history of abuse, drugs , alcohol etc. is the mother in contempt? I want to email them back to let them m ow the legal ramifications of their refusal but wa t to be sure of the law In NY.

The mother will shut the door on me and tell me there is nothin g she can do and that she 'encourages them to go'. I have filed police in scent reports and have set a court date in family.

A:  David's Answer:  First, you should keep a paper-trail of your efforts to visit with them. Second, you should do some soul-searching as to whether your prior actions were at all to blame for their refusal. If their refusal to visit is completely unjustified, then you can file a separate petition to terminate or reduce child support. Finally, the Court loses jurisdiction to rule on visitation matters at age 18, so he Court would only have authority to address issues with the 16 & 13 yrea old.   -- David Bliven, Westchester Child Custody attorney (www.blivenlaw.net)

Wednesday, February 20, 2013

Is there an agreement my wife and I can sign before we have children that we will not raise our children a particular religion?

Q:  My wife and I are thinking of having children. She states to me that if we do we will not raise them her religion but I do not believe her because she always tells me what I want to hear and when the rubber hits the road just does what she wants anyways. Is there an agreement we can sign beforehand that is legally binding, stating she cannot raise them this religion?

A:  David's Answer:  Yes, you can draft a post-nuptial agreement. I would be more comfortable, however, if you do so after the children are actually born, so that a later court doesn't read the provision as a hypothetical.   -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Saturday, February 16, 2013

Is it possible to be legally separated and live under the same roof

Q:  Been married for almost 30 years . It's not working . Don't want a divorce because I have a per - existing medical condition and I need my spouse's medical coverage

A:  David's Answer:  Yes, you can do a separation agreement and specify you will live upstairs & he downstairs, or in particular rooms, etc. You may also wish to check with various insurance carriers as they are supposed to be phasing-in coverage regardless of pre-existing conditions per the so-called "Obamacare" amendments. -- David Bliven, Westcester Divorce lawyer (www.blivenlaw.net)

I need advices

Q:  Is using a belt and leaving bruises on a child back consider an assault on the second degree in new york?

A:  David's Answer:  Probably not, but it depends on the extent. A Judge/Jury would need to determine the belt is a "dangerous instrument" capable of causing a "serious physical injury," and it's unlikely a normal belt would have that capability. That said, your scenario may be considered assault in the third or endangering the welfare of a child. Either way, it's a serious offense such that you (if it's you being charged) should consult an experienced criminal defense lawyer. You would probably also face Family Court neglect charges - and if so you should call a White Plains Child Abuse attorney.  -- David Bliven, Westchester Child Abuse lawyer (www.blivenlaw.net)

Friday, February 15, 2013

Marriage annulment

Q:  I am a legal resident here in NY currently applying for my American citizenship. About almost 3 months ago I married a man from Accra, Ghana. I want to end this marriage since I believe it is not going anywhere and also because I have been taking advantage financially by him. Could you please tell me what the procedures to follow?
I do not wish to travel back to Ghana so I wonder I can get this done here in the US.

A:  David's Answer:  Divorce/Annulment forms are available on the court's website if you wish to do it yourself: http://www.courts.state.ny.us/divorce/forms.shtml. The basic step would be to file the case & assuming he's living in Ghana, but is consenting to the divorce, you can send a consent affidavit over to him to execute.  -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)

How is support determined from a 1099

Q:  my husband earns a 1099 and makes over $ 150 thousand , but has so many " deductions " that he ends up paying taxes on only $ 20 - $ 25k . From which number is child support calculated - the $ 150 thousand or the $ 25k ?

A:  David's Answer:  It is arguable that neither will ultimately determine child support. Merely because he claims such a high amount of deductions doesn't mean they're all legitimate business expenses. Among other things, he'll need to produce all the receipts & invoices proving that the expenses are indeed business expenses.  -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Thursday, February 14, 2013

My x boyfriend is taking me to court for a paternity proceeding for my newborn son. What is the procedure from beg. To end

Q:  I had a baby 7 weeks ago and my xboyfriend is taking me to court for paternity proceeding. He has not been involved with me since aug. baby born in dec. I'm not sure if he is the dad. I have no one on birth cert. I would Like to no what to expect now I go for DNA test right there? If he is the dad does he automatically get visitation or does he have to petition again? I left him cux he abused me I don't trust him with the baby for safety reasons. He also has done drugs. Also i am living with my parents who are supporting me and we are all moving in about a year. I can't afford it on my own will I have a prob moving away with them. We are moving 175 miles upstate in same state. Help!

A:  David's Answer:  On the first court date, either of you have the right to request a DNA test. The court will then adjourn the case & await the results of the test. If the test comes back positive, it will automatically trigger a child support hearing (assuming you want him to pay). As for visitation, he would indeed need to file his own petition.  -- David Bliven, Westchester Child Custody/Support lawyer (www.blivenlaw.net)

Wednesday, February 13, 2013

What form/affidavit should be signed if a stepfather wants his stepchild to use his last name?

Q:  I am petitioning a name change for my minor so he can use my husband's (stepfather) last name before we register him to kindergarten. I called the county clerk's office and they gave me the procedures. They had mentioned that I need to have my husband sign and affidavit saying that he is aware of the name change and he is acknowledging it and that he is taking full responsibility. What is the appropriate form that should be used? Thanks in advance.

A:  David's Answer: You need to commence a name change proceeding. The link to the instructions/forms is as follows: http://www.courts.state.ny.us/forms/namechange..... You should note that the biological father will need to be served with a court summons.   -- David Bliven, Westchester Family law attorney (www.blivenlaw.net)

Stay at home mom, primary caretaker of child, now a student. How do courts determine child custody and spousal support?

Q:  I've been a stay at home mom since pregnancy, the primary person of care and contact for our young daughter(not of school age yet). Since marriage has been falling apart, I've decided to go back to school. I have no money. I rely on his "allowance". He does not support me having a babysitter while I am in school. He works all sorts of hours and travels often out of state on business. Domestic abuse in house such as verbal, emotional, physical in front of our child coming from him. I need to get my daughter and myself out. What am I looking at in terms of support and custody of child? What about spousal support until I pick myself up financially? Any ideas are greatly appreciated.

A: David's Answer: You would clearly be entitled to child support, which is set at 17% of his adjusted gross income for 1 child. As to whether & how much spousal support (i.e., maintenance) you would receive, a good starting point is to consult NYS's maintenance calculator: http://www.nycourts.gov/divorce/calculator.pdf. Ultimately maintenance involves analyzing a host of factors, such as length of marriage, the disparity of income (taking into account payment of child support) as distribution of other assets. As for custody, the courts tend to award custody (all else being equal) to the parent who has been the "primary psychological parent" for the child. But as the maintenance & custody issues involve complex analysis, I highly encourage you to call a Westchester Co. Divorce lawyer to schedule a consultation.  -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)

How do i protest recently signed divorce paperwork in NY. I Recently found out circumstances are serverely not in my favor.

Q:  When i signed the divorce paper work with my wife, she stated she did not want ancillary relief. I originally agreed to this knowing she racked up $15,000 in credit card debt. I recently found out the debt was at $27,000 and payments are coming up quick. Can i change my stance and file a counter claim? Also technically we are still married yet i found out she is having a baby with another man. I was away in afghanistan for the past year and came home to this headache. Is there anything I can do or is it too late since i signed the paper work in late december? I live in NY. Most of the debt was spent on trivial items such as clothes, massages, jewelry and cosmetic surgery. Am i still responsible for her medical bills for the new baby even though I know for a fact it is not mine?

A:  David's Answer: First, though you live in New York, is the case pending in New York? Also, what is it that you signed - a defendant's affidavit or a settlement agreement? Are the credit cards in her name alone or in both of your names? If you signed a defendant's affidavit & it doesn't address the credit card issues & you wish to make it an issue, you'd probably be best advised to hire a lawyer at this point, as you may need to file a motion to vacate the consent contained within the affidavit.  -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)

How do I go about filing a contempt motion against my father?

Q:  My parents were divorced 14 years ago. One of the conditions of the divorce decree was that my father was to pay 50% of my college tuition. I've been asking for months, trying to keep things out of the courts, but to no avail. The divorce took place in another county- do I need to file something to have the case moved to where I currently live? What type of documentation do I need for a hearing about this?

A:  David's Answer:  I would agree that the first person who should be filing the contempt motion would be your mother, as she was a formal party to the divorce case along with the agreement. However, if there is a valid reason why your mother cannot or will not file, I believe you can self-petition. And while children self-petitioning on child support matters is quire rare, I disagree with the other poster's implication that it is impossible.   -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

I do not believe in divorce for religious reasons, however I do not want to contest it. What are my options?

Q:  My wife is filing an uncontested divorce. Our case is simple since there is no conflict regarding assets, money or children. While I do not want to contest it, I would like to do something for my conscience that shows that this is her doing and not mine. Does my signing the defendant pwork mean that I approve of the divorce or merely the arrangements put in place for it? I was thinking of writing on the form ud-7 under point 2 regarding my consent 'Although I do not oppose or contest this divorce, let it be known that I do not agree with this divorce.' If I wrote that, would the judge interpret that as meaning that I am contesting?

A:  David's Answer:  Regarding your proposed language, the answer is "yes, there is a chance the Judge would interpret that language as at least unclear that you are not contesting." Thus, if you wish to signify that you are not consenting, but do not oppose the divorce, then just write that very language in, without the additional phrase of "not agreeing with the divorce." That said, before you do so, I strongly advise you to consult a Westchester Co. Divorce lawyer to know your rights and what you are entitled to (& thus what you may be waiving) in the case.  -- David Bliven, Westchester Divorce attorney (www.blivenlaw.net)

Monday, February 11, 2013

Am I responsible for camp fees that are billed to the grandmother and not my ex?

Q:  I am responsible for half of my daughter's camp fees but the bill presented by my ex is not addressed to her but her mother. Am I responsible for the bill even though it is not addressed to my ex? Couldn't this be seen as a bill for her mother?

A: David's Answer:  One needs to analyze the agreement - assuming this was done pursuant to an agreement versus mere order. In addition to you, does it specifically require the mother to pay her portion? That said, I doubt it will actually have consequence as to who's paying the bill on her end.  -- David Bliven, Westchester Child Support lawyer (www.blivenlaw.net)

Help with criminal case and family court case.

Q:  I am being accuse with 2nd degree assault on criminal court from hitting my child with a belt as well as child abuse and neglect on family court. I am a single mother and going to school to become a nurse. I am afraid to have criminal record and lose custody of my child. I never had any criminal records.

A: David's Answer:  The thing to do is to consult both an experienced criminal law & Family Court attorney. Do not trust that someone can "handle both cases." Often times those attorneys are just try to "make a buck" & don't actually have adequate experience in both areas of law. Thus, I encourage you to call a White Plains Criminal Defense attorney & a White Plains Child Welfare defense attorney (some of whom can be found on the Avvo website).  -- David Bliven, Westchester Child Abuse/Neglect lawyer (www.blivenlaw.net)

Saturday, February 9, 2013

The Attorney I consulted has over 30 years experience - he MUST be good, right?

Don't be fooled by the mere fact that the attorney you consult has gray hair on his/her head.  Experience is but one factor you should consider in choosing an attorney.

Please consider the following example.  I took over a case in which a client hired a Manhattan attorney with over 40 years experience to handle his divorce case.  I certainly admit to not having knowledge of the back-and-forth negotiations, but I can only assess the end result - the settlement agreement.

In the settlement agreement, my client was required to pay 2/3 of the cost of unreimbursed health care, child care & educational costs.  Pro rata division of these costs is relatively standard.

But here's where the problems came in.  First, there was no termination clause for the child care.  Conceivably, he could be required to pay for a babysitter for a 14, 15, or 16-year old.  Ouch!

Second, the agreement went on to provide that, in addition to paying basic support, as well as the aforementioned "add-on" expenses, he was also required to pay 2/3 of the cost of all extracurricular activities and "expenses" of the child.

The mother could conceivably argue that items such as food, clothing & related expenses are now an "add-on" to the basic child support.  Either the attorney didn't know what he was doing, feel asleep at the switch, or screwed his own client.

Either way, the lesson here is that one needs to be careful in merely assuming gray hair means "that's the attorney for me!"

Friday, February 8, 2013

Child passport

Q:  my friend has her grandson since he was one years old, he was born in the USA but lived in Jamaica with his mom until she died when he was a year old. His expired passport was given to his dad while they were in Jamaica to renew but his dads name was not on his birth certificate so he was told to go and get a DNA test done, he has not done so and my friend has now lost contact with him and he did not return the passport or the birth certificate. She and her grandson both now live in the USA and she want to take a trip to Jamaica with him, but cant because he will need a passport to return.

A: David's Answer:  If the grandmother does not have legal custody of the child, she should file a petition in Family Court requesting same. Once she has an order of custody, she can generally apply for a passport.  -- David Bliven, Westchester Child Custody lawyer (www.blivenlaw.net)

Thursday, February 7, 2013

I want to drop my order of protection, but the judge renewed the order of protection without my permission, can she do that?

Q:  I got a temporary order of protection out of anger on my ex-boyfriend back in January 2012, due to fighting. The order of protection ended up being not just for me, but for my whole family (they never wanted it). And I've been trying to drop the charges since February 2012, by calling the DA but she hasn't done anything, and was told that it was out of my hand. I made frequent trips to the police station trying my best, but no success. I just had a baby for him (12/17/12), but the police doesnt know, wouldnt want to make matters worst for him. I really do miss my ex-boyfriend, and I really regret everything that I did, it wasn't even that serious. I would like him to be a part of his son's life, and my older son misses him as well. Please, someone? Help me! What can I do?

A: David's Answer:  I would advise him to file a visitation petition. He can also have his criminal defense attorney file a formal motion to vacate the order of protection.  -- David Bliven, Westchester Custody/Visitation lawyer (www.blivenlaw.net)

Tuesday, February 5, 2013

I got married in 2001 to an illegal Mexican national. Filed first set of paper work for divorce in 2005. Can i continue this div

Q:  Can i continue this divorce? he got in trouble and was deported shortly after never signing the second set of papers. How do i divorce now? Do i have to go to Mexico and serve him? There is a legal trail since he was deported. I havent heard from him in almost 8 years. How do i get a divorce?

A: David's Answer:  Assuming he was not yet served, you generally have to serve him within 120 days of filing. However, I disagree with the other poster you opined this automatically results in your case being dismissed if he's not served. This is certainly a general rule, but is often overlooked. As such, you need to check with the Clerk's Office as to whether your case is still "active." Then there's the issue of serving him - is he consenting? If so, he can sign the papers. If not, you may need to serve him via the Hague Convention. It's a complicated process.  -- David Bliven, Westchester Divorce lawyer (www.blivenlaw.net)