Saturday, July 27, 2013

Can moving around a lot be considered neglect or abuse?

Q:  My ex has moved 16 times in the past 6 years, 6 of those moves were in the past two years alone. I have physical custody of our son who is 6 years old. Each move is farther away from where I live. She currently is 65 miles away from where she was living when custody order was put in place, and is planning another move in the next few weeks. Can I do anything about it?

A:  David's Answer:  I do not feel on these facts in themselves that she's committing either child abuse or child neglect. That said, depending on the actual driving time involved, you may be able to argue that visitation should be restricted to some degree, especially if she has mid-week visits. For a full assessment, speak to a Child Custody lawyer in your area.  -- David Bliven, Westchester Child Custody attorney (

Child abuse

Q:  2 months ago I had a temp stay away order for my son against his mom due to drug abuse and her and her boyfriend fighting to the point the cops showed up. Now after the judge lifted it 3 weeks ago they called me and made threats I pressed charges then the next day when getting my son he was all marked up I went to his doctor and the police and they both reported her for child abuse. The cop said to not hand him over no matter what and he will be arresting them most likely Monday. Now if I goto family court with only a case number and no paper work is that enough to get a stay away? And with out a stay away to I have to hand the child over to his abuser cause it will be her time tonight?

A:  David's Answer:  You should file an emergency order to show cause & petition seeking a suspension of the visitation along with the modified order of protection. If for whatever reason the Judge does not grant it, then you would need to "hand the child over" to the degree same is mandated by a prior order of visitation. For a full assessment, schedule a consultation with a Child Custody lawyer in your area.  -- David Bliven, Westchester Child Custody attorney (

My friend is looking for a criminal lawyer who specializes in sexual abuse case looking for help.

Q:  My friend need help his lawyer who he has is not helping him at all she is doing more harm and he wants to fire her and get a new lawyer. He is looking for someone who is willing to work with him as far as payment is concerned . He need help very bad

A:  David's Answer: Attorneys on this forum may not solicit clients. As such, you're free to shop around on Avvo's website, as well as other trusted websites such as, or Good luck!  -- David Bliven, Westchester Family Law attorney (

Saturday, July 20, 2013

Does the family court ordered mandatory courses impact on my husband criminal court charges?

Q:  My husband now is facing both charges from criminal and family court for domestic violence (DV). And I am trying to reconcile with him by withdraw the case from family court which is the one i could control and in order not to affect his doctor career in the future, I told my lawyer to fully drop off the whole case and my lawyer said it is quite risky to do so since DV is a repeating behavior. So she suggested me to add a mandatory course court ordered him to go (batterers'). But my husband's lawyer asked him not to accept my request and he said this course is kinda like a probation which is not good for him to win the criminal case. I don't whether it is true or not. if it is true, what I can do to make sure he changed without putting records on him?

A:  David's Answer:   I don't see any direct impact on the criminal case. Indeed, the best plea he's likely to get in criminal court would be an ACD - which would almost always require him to complete a batterer's program anyway. If you're looking for a 2d opinion and/or for a full assessment, schedule a consultation with a Westchester Family Law attorney. -- David Bliven, Westchester Family Law attorney (

Non Custodial Summer Vacation and Summer Camp

Q:  My ex is entitled to a week long vacation during a time the summer break from school. I would prefer that my ex not take our kids on vacation when they are in camp. The order only states he is allowed one week during a period during the kids' summer break from school. Can I deny my ex's vacation if he chooses a week that the kids are in summer camp? If I do, is that considered a violation? Is summer camp considered day care or an extra curricular activity? Is there any way to have camp supersede his vacation? Thank you.

A:  David's Answer:  Communicate with your ex first & see if there's any reason why he can't pick another week. Ultimately I cannot advise to deviate from the order, though your remedy is to file a petition for modification & see what the Judge says about it.   -- David Bliven, Westchester Family Law attorney (

What does " Failure was not Willful" mean in a final order for enforcement mean?

Q:  I received a final order and it was found that I failed to comply with the order and that such failure was not willful. What does the "Failure was not willful" mean?

A:  David's Answer:  It means that you partially won your case, in that the Judge or Magistrate found that while you did violate the order, same was not intentional (perhaps "merely" negligent or showing a reckless disregard for same nevertheless). If it was for back child support, the Magistrate may still enter a money judgment against you even for a non-willful violation. For a full assessment, schedule a consultation with a White Plains Family Law attorney.  -- David Bliven, Westchester Family Law attorney (

Wednesday, July 17, 2013

Would custody go to the father if the forensic says children should be with mom but one child says he wants to live with dad?

Q:  I'm in the middle of a custody struggle. A forensic report was done which indicates that the fathers household was a "highly negative" environment not good for the children. It indicates the fathers lack of consideration for the children. Yet one of my sons says he wants to live with his dad. This son is a special needs child classified as "Intellectually Disabled". I am being told that regardless of the forensic, in a trial, the judge would award the father custody of that child simply because this is what the child says he wants. I need to understand if this is the precedent. What good is a forensic if this is the case? I don't believe my son really knows what he is asking for because he says "he doesn't know" why he wants to live there.

A:  David's Answer:  I'm in the middle of a custody struggle. A forensic report was done which indicates that the fathers household was a "highly negative" environment not good for the children. It indicates the fathers lack of consideration for the children. Yet one of my sons says he wants to live with his dad. This son is a special needs child classified as "Intellectually Disabled". I am being told that regardless of the forensic, in a trial, the judge would award the father custody of that child simply because this is what the child says he wants. I need to understand if this is the precedent. What good is a forensic if this is the case? I don't believe my son really knows what he is asking for because he says "he doesn't know" why he wants to live there.  -- David Bliven, Westchester Family Law attorney (

Why is the mom a custodial parent if we never went to court Florida

Q: my sons mom took my son and moved away i had no contact information she automatically became the custodial parent

A: David's Answer: If there were no prior orders of custody, then she was only the "de facto" custodial parent, she was never the "legal" custodial parent. That said, if there were no prior orders of custody or visitation, and she moved more than 6 months ago, then Florida now has jurisdiction over any custody or visitation filing. For a full assessment, schedule a consultation with an Orange/Westchester Child Custody attorney. -- David Bliven, Westchester Family Law attorney (

Saturday, July 13, 2013

My case was indicated now my caseworker is telling me to go court and get a refrain form.

Q:  iam wondering how this is going to clear my name and how this is going to help to keep my child with me cause i dont wanna to lose him. iam with my baby daddy living and iam wondering if that can caused more problems in the future.

A:  David's Answer:  Assuming the allegations are that your child's father engaged in domestic violence towards you, then CPS is advising you to file for an order of protection. As to whether there's a risk of "losing your child," or a neglect case being filed, takes more of the background being provided. I encourage you to schedule a consultation with a Westchester Family Law attorney for a full assessment.   -- David Bliven, Westchester Family Law attorney (

Do i have to pay child support if my son joins the military

Q: and how do i prove that he did?

A: Daivd's Answer: You would need to file a petition to terminate the support if he does enlist. This would generally be a basis for emancipation. You may verify enlistment here: or via Dept. of Defense's website. You should also contact an Orange/Westchester Family Law attorney to schedule a consultation for a full assessment. -- David Bliven, Westchester Family Law attorney (

Wednesday, July 10, 2013

How do I gety ex in front of the Judge who issued a restraining order ?

Q:  During my divorce the Judge in IDV (Intergrated Domestic Violence) court, where all matters pertaining to my divorce were heard issued a 5 year restraining order against my ex husband, with good reason. He had a prior restraining order that he violated, and spent one year in jail. He recently violated the 5 year restraining order, and I filed a complaint with the local police department. Today he surrendered to the police, was released ROR for a future court date. I want to make sure he goes back in front of the Supreme Court Judge who issued the restraining order. Do I also have to file a violation with the issuing court, or should the Judge who arraigned him today turn it over to the issuing judge ??

A:  David's Answer:  Yes, you'd need to file an order to show cause to enforce the order of protection in Supreme Court. You should also schedule a consultation with an Orange/Westchester Family Law attorney for a full assessment of your situation.  -- David Bliven, Westchester Family Law attorney (

I am accused of hitting a parked car and now receiving harassing text messages and voicemail

Q:  I am in a bitter custody battle with my ex and now the family is claiming i hit her brother's parked car. I did not hit the car. I am receiving text messages about it and when I went to pick up my daughter, my ex's mother refused my visitation and accused me of hitting her son's car. This was all infront of my son. Can i ask the judge for an emergency change in pick up/drop off? can I request my ex only be present? Also, can I file harassment with the cops for their continued accusations? I was able to obtain a police report about the accident and and it stated that the cop could not state if the damage was from my car. Also, the police report states only the brother saw the accident but the family is now claiming they all saw the accident including my daughter. This is affecting my child

A:  David's Answer:  You may file a motion in the custody case to request another pick-up/drop-off location. As for the "harassment," it's probably better to first send a cease-and-desist letter along with a copy of the police report. If they communicate with you further along the same lines after receipt of said letter, then file the police report. For a full assessment, schedule a consultation with a Westchester Family Law attorney.  -- David Bliven, Westchester Family Law attorney (

Can I inform he judge of violations from the custodial parent at the hearing for modification and enforcement?

Q:  I've already filed petitions for modification and enforcement and my hearing is in August. My ex continues to violate the order. Should I file another enforcement/modification or can I mention these incidents to the judge during my hearing in August? Can I also request therapy for my daugther and I? I've tried to speak to my ex about providing therapy for our child but my ex continues to state that our child is ok and that her outbursts are because of me. Do I need to file a petition for the therapy request or can I ask the judge in the August hearing? I'm not able to afford an attorney so I am doing this pro se. Thank you in advance for any help provided. 

A:  David's Answer:  You have apparently posed this question on this forum several times. The answer is still the same: yes, you should file petitions covering subsequent violations. Also, there is no specific petition to file in order to request family counseling. Moreover, if you cannot afford an attorney, you should request assignment of counsel.  -- David Bliven, Westchester Family Law attorney (

Hi, my case was indicated and iam being accused too as neglecting. i did close the case cause i thought he was going to jail

Q:  so we move in together and now we are fine, but now iam concern cause iam being acuse of being a abuser too how can i appeal this

A: David's Answer:  If you have an indicated case, you have a right to file for an Administrative Review with OCFS (the address is provided on the 2d page of the letter you received notifying you of the indication). Most of the time, OCFS sends the matter back to the County to hold a "Fair Hearing" before an Administrative Judge. You should file the request for an Administrative Review via certified mail, return receipt. In any event, for a full assessment, schedule a consultation with a Westchester Child Abuse defense attorney.  -- David Bliven, Westchester Family Law attorney (

Saturday, July 6, 2013

CPS - Indicted I was investigated by CPS on allegations of abuse by my wife that she initiated a couple of weeks after I vacated

Q: the marital residence on 9/09. After having met with the caseworker on two occasions I was told by said CW that the report was unfounded. In the interim a divorce petition was filed (judgment granted in 2011). I was never notified in writing by SS that I was subject of an invest, or the determination. I was only orally informed at my last meeting with the caseworker. this was never an issue with custody, etc., until I submitted to a background invest for a job with children, and was informed of an indicated report. The evidence in the report was inconsistent, and aside from the allegations spotty. I am facing an administrative hearing in August. Do I have a leg to stand on?

A: You should certainly schedule a consultation to review the facts of your case. I am a former child welfare attorney & am in a good position to answer your questions.  -- David Bliven, Westchester Family Law attorney (

I am in the military and have rental loss on my tax return with my husband - does the court include that when figuring income?

Q: I'm was served for Child support - and am about to go to the hearing. In military so we had to rent out our first home while we were stationed elsewhere.  I currently brings in less income than we receive house is in current husband's name but it is joint on our tax return.  husband is military spouse and does not work - I am the bread winner in our family.

A: The Court does not technically count a "loss" as income, as income is what you earn. That said, because you have a short-fall between what you receive in rent versus the mortgage, this is now an expense which the Court can factor into the overall mix.  -- David Bliven, Westchester Family Law attorney (

My Parental Rt's were term'd.The Appeal lost. Is there anyone who can assist me in appealing to a higher ct? $ r lo,i luv my son

Q: This case was deliberately prolonged by agency workers. upon their initial req's, They took their time sched’g appts. They lied to a Facility Director several times. They psychotropically medicated my son without the court's or my permission. Suspended judgement was issued directing various appt./meetings, upon which weren't scheduled in a timely manner by CPS, yet, I was blamed and deemed negligent with "non-compliance". One of the issues of non-compliance stemmed with me having resched. 1 appt., the Mgr,resched 1, the original resched appt. the mgr then took an indefinite leave of absence. The replacement for her caseload, wasn’t assigned and/or a no show for approx. 3 weeks then a motion was filed violating me of the suspended judgement. I grad'd Prnt'g classes. My rights were term'd.

A: You have a 30-day deadline to file the higher appeal from the date of the Appellate Division order. I highly suggest you contact an attorney as soon as possible to discuss your case.  --  David Bliven, Westchester Family Law attorney (

If each parent has equal custody of thec hild (50/50 parenting time), who is considered the custodial parent?

Q: My ex and I are filing for an uncontested divorce and we have one child. We have split the parenting time 50/50. Can we state that we have joint physical custody? or does one parent have to be the custodial parent?

A: You would technically have what's called "shared" custody, as distinguished from joint custody. The former speaks to access time with the child, the latter speaks to decision-making. If your settlement agreement states shared, joint custody (& it's best to define what you mean by that), then it should be acceptable.  -- David Bliven, Westchester Family Law attorney (

In Shared Custody, Who is responsible for buying school supplies and school related items? What does support generally cover?

Q: My ex and I have shared custody. Even though our child lives with us 50/50, I pay support to my ex. My ex claims that I am still responsible for buying school supplies, etc. I do buy my child clothes, hygiene items and have paid school fees.

A: David's Answer: Under such circumstances, if the support order doesn't say otherwise, such expenses should generally be shared 50-50. That said, it's probably not something worth taking to court.  This is because generally speaking the Support Magistrate would only deal with "unreimbursed educational expenses," which if not otherwise agreed to by the parties is generally taken to mean private school tuition, but NOT school supplies.  -- David Bliven, Westchester Family Law attorney (

Comment on Brazil Custody Dispute

Current in the news is an international custody dispute involving a 6-year-old American child, and American mother & a Brazilian father (

It is important to note that both sides of the story are not yet clear, and media reports I've read seem at least slightly skewed toward the American mother.  It is just as possible, for instance, that the father's allegations of the mother taking the child away from him & preventing him from seeing her are absolutely accurate.  My experience says the truth is probably somewhere in the middle.

All that said, this case points to the continuing difficulty in the area of international child custody law.  Some countries are signatories, while others have merely "ratified" or "acceded" to the Hague Convention on Child Abduction (, which is the international treaty in place theoretically governing child custody disputes.

A decent summary article on the subject is found here:

Brazil has "acceded" to the Convention, which means it, in effect, "agrees in principle" to the Convention and agrees to generally apply it.

What is lacking is clarity along the lines of the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA").

Overall, before one travels with a minor child internationally (or, for that matter, domestically), the custodial parent is well advised to have a clear court order of sole or primary custody when the parents are not living together. 

In the international case, it is also well-advised the you have the order state specifically how the other parent was served with the summons or notice of the custody case.  This is important so it's crystal clear to the foreign country how jurisdiction was established in the United States over the foreign resident parent.

Parents in such situations should consider at the least scheduling a consultation with a child custody attorney in their area, particularly one knowledgeable about international child custody laws.

Tuesday, July 2, 2013

If I get joint custody; does child support go down? I have 2 kids & I want full or joint custody

Q: We split in January and I have been paying ever since. We were never married but have been together for around 10 years. Can I get joint custody & child support goes down? I want full since living with me will give my boys a better way of life & a cleaner home.

A: David's Answer: Joint Custody in itself does not create a deviation factor on a child support calculation. Instead, the Court has discretion, depending on numerous factors (but primarily incomes of the respective parties and access time enjoyed by the non-custodial parent) to deviate from the proposed guidelines amount. If you have "full" custody, or even primary custody (meaning the children reside with you 51% or more of the time), then you would pay no child support & indeed should receive child support from the other parent.  -- David Bliven, Westchester Family Law lawyer (

My wife lied and applied for a restraining order, I have a hearing on Wednesday in Family Court - is it possible to:

Q: Obviously, they issued a TRO, I want to block or eliminate the restraining order from being issued on a temporary or permanent basis.  This is simply a ploy (she was coached by someone in law enforcement) to get me out of the house so that she will be in possession. I work in a law firm and have attorneys who would gladly go with me to court - family law is not what we do and I don't want to spend the next 2 days researching Lexis for answers - Bottom Line is that I want to vigorously defend myself against this unbelievably vicious and unfair manipulation of the legal system just to gain the upper hand in a divorce case.

A: David's Answer: This site cannot make direct referrals. That said, you'd be best advised to file an order to show cause to vacate the TRO.  -- David Bliven, Westchester Family Law lawyer (


Q: child went with father this morning for a 5 week visit. after 7 hours the child is not happy, and never is when with the father. the child is 9 years old. the father is military and rarely calls the boy. what is a custodial parent to do in this circumstance. it makes me want to cry for my son. Perhaps said this 5 weeks can be changed, which i think should be done. i believe 5 weeks is to long for a child to be away from his mother especially when the child is not happy with the father.

A: David's Answer: Here's the problem: you appear to be speculating at this point as to why the child is unhappy. Moreover, if the summer visitation is by relatively agreement or decision from a Judge, you may have a tough time modifying the prior order merely on the set of facts you have asserted. While indeed procedurally you may change a prior order by filing a modification petition, unless there are more facts it may backfire on you as it may come across that you simply don't want the child to develop a good relationship with his father.   -- David Bliven, Westchester Family Law attorney (

How to file an order to show cause in family court in NYS?

Q: My ex continues to intentionally violate the order by ignoring the parenting time scheuled and dropping off our son to me when she feels he is ready or after an event she has taken him to. It has happened 4 consecutive weekends. I've already filed two enforcement petitions and modification. The hearing is in August. My ex is also denying me my weeklong vacation in the summer. She states that he will be in camp therefore he cannot go on vacation with me. the order does not state that camp/activities supersede my summer vacation. I was advised to show an order to show cause. How do I file this pro se? Also, Will the judge get upset/annoyed if I file another enforcement petition? This past weekend, my ex dropped off our son to me 3 hours late. Should I just mention this at the court hearing?

A: David's Answer: To file an order to show cause as a pro se litigant, you'd need to go to the Clerk's Office of the courthouse. It's hard to say whether the Judge would be angry at the filing without knowing the full history of the custody case.  --  David Bliven, Westchester Family Law lawyer (

What age can child determine who they want to see

Q: In New York , what age can a child, say that they would rather not go with the non custodial parent, for visitation.

A: David's Answer: While there is n exact, bright-line rules, there are very rough informal rules (which vary not only with the facts, but the Judge & location). That said, if a child is elementary school-age or less, his/her wishes probably won't count all that much. As the child progresses into middle school, the child's preferences will assuredly count, but be one factor amongst many. However, as the child progresses into high school (14+), his/her preferences will count a great deal, to the effect that unless there's a solid allegation of abuse or neglect (or some other serious factor), the Court will probably go along with the child's preference.  -- David Bliven, Westchester Family Law attorney (