Saturday, April 26, 2014

Where can I get a "certificat de coutume et de célibat"?

Q:  I'm marrying a French Citizen in France, and the Mairie calls for "certificat de coutume et de célibat". I need to mail these to my fiancee to get married. Where can I obtain these legal documents?

A:  David's Answer:  I'd say . . . . France (?). Surely extremely few NY lawyers would be equipped to answer this question - you're best advised to contact a Family Law attorney in France.  -- David Bliven, Westchester Family Law attorney (

How far do arrest warrants work?

Q:  I have a custody paper that says I can't leave outside 50 miles of my city I have not seen or heard from him in three years I have had an order of protection against him once he is dangerous and I don't want to risk going back to court and making him mad he warned me if I tried to move or dated anyone else there would be consequences can I just leave? If he finds out what happens? Would it be like a giant amber alert for "kidnapping" or just an arrest warrant in that state and as long as I don't go there again me and my son are safe?

A:  David's Answer:  If you move without his permission or court permission, not only will this likely make him more angry than if you just take him back to court, you'd also violate a court order. And yes, the Court could issue an arrest warrant, which is enforceable in all 50 states (as it would come up on the NCIS computers). He could also hire a P.I. to track you down. If you're brought back to court, you'd face 6 months in jail, sanctions (which could include the full costs of his P.I. & his lawyer) as well as the prospect of losing custody. Strongly consider filing a relocation petition. Speak with a Family Law attorney in your area.  -- David Bliven, Westchester Family Law attorney (

I want to know if i can file some kind of order against my evil stepmother she lives in the same house i do.

Q:  Hi! i rent a room in my brothers house 2nd floor,in this same house my father brother and the EVIL STEPMOTHER who is obsessed with me,she for some reason will not leave me alone,she talks about me online,she will listen to my phone calls,she knows when i have some place to go and call that place and tell them some kind of lie about me,she calls my doctor and tells them i am taking drugs,my father is disabled and his mind is that of a child,she will get mad at him until he agrees to support a bad lie about me.I cant move at this time,i was forced out of my house by my abusive wife,i am disabled,can i file some kind order against the EVIL STEPMOTHER.

A:  David's Answer:  You can only file for a restraining order (i.e., order of protection) if you're prepared to allege & prove she's committed some form of domestic violence. On the facts you've presented thus far, it doesn't appear you have a case. Speak to a Family Law attorney in your area for more info  -- David Bliven, Westchester Family Law attorney (

What are my rights to a house that I jointly own but am barred from due to an Order of Protection ?

Q:  I currently have an order of protection against me for 2 years barring me from contact with my current spouse or homestead and have recently found out through my sons that she is putting our house up for sale. I am not against it being sold, but when I asked them to ask her for detailed information on what the plans were, the response that came back was that I have no involvement and will "Absolutely" not be receiving any of the equity upon the sale. Also, I did not need sign the sale papers if/when it is closed. Joint names are on the title and deed. To top it off, I am due a lump sum pension distribution in August which requires her signature on the pension papers and she states that she is owed 50/60 % of that as well. Can she legally get away with this ? Thanks

Additional information
She Also sold my truck that had only my name on it ??? how is that possible ?

A:  David's Answer:  Your should strongly consider filing for divorce as soon as possible. Upon filing & serving her with the summons, automatic orders go into place barring her from selling any real estate without your express written consent or court permission. That said, just as you're generally entitled to half of the equity of the house was bought during the marriage, she's generally entitled to 1/2 of the marital component of your pension. Schedule a consult with a Dutchess/Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (

Can custodial parent serve me with uncovered medical bills at my work place?

Q:  I have child support order from California court and I live in upstate NY. I pay my child support on time. The custodial parent of my kid has been serving the uncovered medical bills and day care bills at my work place using some private process server. She can easily mail me the receipts at my mailing address but she is not doing that . Is there a way to stop being served with papers on a regular basis at work? Frankly its embarrassing to be called by HR and front desk every time this guy shows up in my company. Is there a way I can stop this process server from showing up at work? I mean after all it's not court ordered.

A:  David's Answer:  It's certainly not nice, but whether it's a violation would depend on an interpretation of CA law. You should consult a CA Family Law attorney on the question.   -- David Bliven, Westchester Family Law attorney (

Maintenance and cohabitation

Q:  is there a specified amount of time that constitutes cohabitation. In other words, does N.Y.S. designate the amount of time that a cohabitant can be with the supported spouse without spousal reduction or elimination?

A:  David's Answer:  No - indeed if your divorce agreement does not state otherwise, mere cohabitation is not a basis to terminate maintenance. Generally only actual remarriage results in such a termination. Schedule a consult with an Orange/Westchester Family Law attorney. -- David Bliven, Westchester Family Law attorney (

Is there a "selective prosecution" or something like it in family court cases?

Q:  My ex has two children. One with myself and one she had prior to our relationship. She has NEVER brought the other childs father to court although he does not support the child in any way nor does he have a relationship with this child. There have been allegation of violating a court order made against me, and i have counterfiled them against her. My question is this.. Can i use the fact that she HAS NEVER even tried to bring the other father in although he is in arrears as much as 6000$ support because i feel like she is targeting me. I want to spend as much time with my child as possible.. But she is trying to run and control my every move while im having visits with my child and i feel if she can leave the other man in peace.. Y cant ahe leave me alone as well. Atleast i pay my support

A:  David's Answer:  The short answer is no - it's her choice who she sues. What you can do is get a good visitation order which makes clear she cannot otherwise dictate the terms of your visits when you have the child. Speak to a Family Law attorney in your area for more info.   -- David Bliven, Westchester Family Law attorney (



A:  David's Answer:   If you believe SCU took more than you owe, file an application with them immediately to request that the overpayment be refunded to you. Once it's dispersed to the mother, SCU cannot get it back from her. Here's the form: Speak to a Family Law lawyer in your area.  -- David Bliven, Westchester Family Law attorney (

If you smoked marijuana while pregnant in new york state will cps take your baby away?

Q:  If you smoked marijuana a few times throughout your pregnancy but have stopped completely before you give birth will cps take your baby away?

A:  David's Answer:  You are certainly risking having CPS filing a case against you, at the least. If the baby is born with a "pos tox," this in & of itself is not a basis to take the baby away from you, let alone filing a child neglect case. That said, if there is literally any other aggravating circumstance, CPS can theoretically use the aggravating factor as a basis to proceed with the neglect finding (if the baby is indeed born "pos tox"). Speak with a Family Law attorney in your area for more info.  -- David Bliven, Westchester Family Law attorney (

While living with my MIL, her landlord ordered her to get a restraining order to get my husband and myself out of the apartment.

Q:  She was renting to us illegally, as her rent was frozen based upon a lie that she lived alone and was protected by a govt. agency due to that falsehood. Can we sue her or her landlord for issuing a false restraining order?

A:  David's Answer:  Did she file for the restraining order in criminal court or family court? The best way to defend against the order is to hire a good lawyer & get the case dismissed. If the case was filed in criminal court, consult a criminal defense lawyer. If it's in family court, call a Family Law attorney in your area for a consult.   -- David Bliven, Westchester Family Law attorney (

Wednesday, April 23, 2014

In NYS how can we make amendments to a pre-nuptial agreement that my wife entered into before we got married in 2011?

Q:  My wife and I entered into a pre-nuptial agreement before we got married in 2011. We live in NYS. We have agreed upon certain changes that we would like to make to the agreement. My wife's attorney says that we would need to enter into a post-nuptial agreement. She also says that a problem is "lack of consideration." My questions:

1. Can we make an amendment to the original pre-nup and not have to enter into a post-nup?
2. The consideration was specified in the original pre-nuptial agreement, so can the amendment can simply refer to that consideration?

A:  David's Answer:  Unless your original prenup has language to the contrary, you should be able to modify the original prenup. Additionally, NYS General Obligations Law specifically excludes documents like prenups or separation agreements from the requirement of consideration for contracts. Schedule a consult with a Divorce attorney in your area. -- David Bliven, Westchester Family Law attorney (

My husband wants to adopt my oldest son as his biological father has not seen him since was an infant(my son is 16 years old).

Q:  My ex-boyfriend abandoned my child when he was an infant. He never has tried to visit him, although he lives 3 hours away in Boston. He pays child support now, but still owes $25,000 in arrears. I have been married for 11 years now and my husband wants to adopt my son and so does my son. I asked my son if he wants to have a relationship with his biological 'father', but he has no interest, not even on FB. I was just awarded full custody by family court. My question is: Do I still need consent from the biological 'father' for my husband to adopt in N.Y.S.? Can a local family attorney help me win this case, so I can be done with any connection to this man?

A:  David's Answer:  If the father has not had significant contact for at least 6 months, then the Court may dispense with the need for his consent. On the facts you've presented, this seems highly likely. Call a Family Law attorney in your area - with the proviso that not all Family Law attorneys do adoptions, so be sure the attorney you hire has done at least several in the past.  -- David Bliven, Westchester Family Law attorney (

NYS Law Regarding 6yr old being enrolled in Kingergarten or 1st Grade

Q:  Is there a law in new York State that requires a 5/6 yr old to be enrolled in Kindergarten assuming that child will not be home schooled?

A:  David's Answer:  To my knowledge, Kindergarten is not mandatory in areas outside of NYC (though I believe a couple of upstate cities, maybe Rochester and/or Albany, have just recently made it mandatory). You may double-check by calling the school district.  -- David Bliven, Westchester Family Law attorney (

How can I change my minor children's last name?

Q:  I recently got remarried and changed my last name to my husband's last name. We have a newborn daughter. I have 2 minor children from a previous marriage. My children have expressed their desire to have their last name changed to that of my husband ( one of my children would also like to have his middle name removed). They tell me that they "love him and don't want to be the only ones in the family with a different last name". I have discussed this with my 2 children's biological father and he agrees with the change, as he is not involved in their lives. My husband provides for all 3 children and myself. Can I make this change? If so, how do I go about doing so? Thank you!

A:  David's Answer:  Your options are to either have your husband adopt the children, or file a change-of-name proceeding. Instructions for the change-of-name proceeding are here: David Bliven, Westchester Family Law attorney (

Were is the law drawn when it comes to punishing your child. Is there a web site will tell me what I can/ cant do for punishment

Q:  Just got pulled in to school child didn't like the punishment ( I grabbed her hand to pull her out of the chair) she then went to school and complained it hurt, when she reported it she also complained now she is scared of me along with her other two sisters. I'm now being investigated by DSS. Am I allowed to spank them not beat them I know the difference. The DSS worker is telling me to let them walk all over me and just call the cops. I need to know the rights I have as a parent how to control my children along with reasonable punishments.

A:  David's Answer:  The issue will ultimately be whether you caused an injury or left a mark (i.e., a bruise). Even if you did not, but a medical professional opines that the manner in which you disciplined the child was substantially likely to cause an injury, the report may at the least be "indicated." One resource you may consult is here: You're also best advised to consult a Family Law attorney in your area.  -- David Bliven, Westchester Family Law attorney (

When do i have to mail affidavit?

Q:  My first court was a few days ago. A temporary order was made and we are going back in 8 weeks. The judge told me to mail a copy of my affidavit to my exs lawyer- thats after i asked him what to do with it. Is there a time period i should send it? I honestly dont want to send it all early and give her lawyer time to find something wrong w it and screw me. Is there a time limit to which when i have to mail it?

A:  David's Answer:  The answer to your question depends on exactly what you're mailing. If it's not a petition or a cross-petition, then generally "interlocutory" documents may be mailed to the attorney of record. In terms of the time frame, one would need to know whether its responsive to a motion, when your court date is and/or whether the Judge gave you any deadlines. Speak further with a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (

May I call my ex-wife's employer and verify employment?

Q:  I was ordered to pay 61% of our daycare expenses when they are in her care.
She has a history of lying in regards to financial matters.
I asked her to provide me with proof of employment and a notarized contract stating the daycare arrangement that she has with her babysitter as proof. Our divorce decree states that she only has to provide me with receipts and I have 30 days to pay the amount.

A:  David's Answer:  Sure you can - but in absence of a pending court proceeding (and especially without a subpoena), the employer has no obligation to furnish the info to you. Speak to a Family Law attorney in your area for more info.   -- David Bliven, Westchester Family Law attorney (

I filed a child support petition and now I need to reschedule my court date what do I have to do it last minute because its tom

Q:  I need to reschedule my court date Im the petitioner

A:  David's Answer:   Last minute adjournments are problematic - generally it should be for a bona fide emergency. Send a fax to the Magistrate, copy it to the other side & document the emergency. Your risk is that the Court finds it not to be an emergency & proceeds in your absence. Speak to a Family Law attorney in your area for more info.  -- David Bliven, Westchester Family Law attorney (

I am looking to file a motion in supreme ex would runn out the first week of jan and file her taxes claiming both of

Q:  I am looking to file a motion in supreme ex would runn out the first week of jan and file her taxes claiming both of our children for deductions, our separation agreement states we both get one child as a deduction, so when I filed my return would be rejected.
It also states that if we could not agree one or the other could file and let the court decide...she nor I have ever filed for that ruling...that is what I need to file
Had she followed the agreement I would have no arrears and I would not be in the financial straights I am currently in....I need help

A:  David's Answer:  If the agreement allows you to take a deduction, then you should be allowed to do so. My question is whether you've attempted to communicate with your ex about the issue. Most such agreements have default provisions requiring such communication to be in writing (& usually via certified mail) as a pre-condition to filing an enforcement application. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (

Owe ex wife 3200 fom 10 k...she filed an order...she has no atty...she not answer my phone calls

Q:  im out work 9 months, filed bankruptcy in 2011, house is in short sale...i cant pay right now...court is 4/14 my first job in 9 months starts 4/1/14 out of state...i have to go to job...what happens i no show up, cant afford atty go for me...can i call court and delay date? what should i do?

A:  David's Answer:  You should fill you & submit an application for electronic testimony, Form 4-24 (, which means authorization to call-in. You'll need to follow-up with the Clerk's Office prior to the hearing to confirm it's been granted. Speak to a Family Law lawyer in your area for more info.   -- David Bliven, Westchester Family Law attorney (

Thursday, April 17, 2014

What happens if a report come back as "indicated" in the state of NY, for suspected child abuse/ neglect?

Q:  What happens if a suspected child abuse/ neglect report comes back as indicated in the state of NY? Is the other parent going to go to jail for leaving a bruise on the child? The other parent did not mean to leave a bruises.

A:  David's Answer:  You generally cannot "go to jail" unless a criminal proceeding is filed against you. An "indicated" report is a mere administrative finding which does not, in itself, carry a risk of incarceration. While you may not have intended to cause an injury, if you nevertheless intended to hit the child & an injury resulted, there is a good basis for the report to have been indicated. Otherwise, you may wish to consider filing for an Administrative Review with OCFS to challenge the indicated finding. You must do so within 90 days of the indicated finding report.  -- David Bliven, Westchester Family Law attorney (

Are domestic violence reports and incidents available to the public?

Q:  Seeking to get a domestic violence and incident report (I know they exist) on someone for my case of parenting visits, not against child or ex. Can I do that myself or does a lawyer have to request it?

A:  David's Answer:  If the records are relevant to the case, then they have to be subpoenaed. While you're best advised to have a lawyer representing you, you can always draft the subpoena yourself and submit it to the Judge for signature. Speak to a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (

Do I have to comnunicate via text or online?

Q:  My daughters father has been non existent for the last two months. He never asked about her that entire time when he texted he would just start a fight. He had always used his girlfriends phone or facebook to contact me. Do I have to respond to the texts and messages from her phone or facebook or can I tell him the only way I will talk to him about her is via a phone call. If we went back to court would I get in trouble for not responding and telling him ill only communicate via phone calls?

A:  David's Answer:  If he cannot conduct himself civilly via text, then I don't think it would pose a problem to tell him to either communicate with you over the phone or e-mail from now on (though e-mail is preferable in such a volatile situation). Speak with a Family Law attorney in your area for more info.  -- David Bliven, Westchester Family Law attorney (

My name is chandra i had a case with cps it is now close the judge rule permanent neglect, mental retardation and mental illness

Q: i want to sue cps and bring my children home

A:  David's Answer:  If a Judge entered a finding that you permanently neglected your child by reason of mental illness, then your only remedy is to appeal - you cannot generally sue under such circumstances. You would need to file a notice of appeal within 30 days of receipt of the final order with notice of entry. Schedule a consult with a Family Law attorney in your area.  -- David Bliven, Westchester Family Law attorney (

Saturday, April 12, 2014

Can husband ban me from taking my twin 16 year olds to visit family in Canada?

Q:  After more than 16 years in a controlling marriage I am just trying to make it to the boys graduation before they go to college and I find my separate place to live. But my husband has now banned me from taking the boys to visit our family in Nova Scotia. I have done this trip every other year on a regular basis but now he says I can go nowhere without him. I do not want to travel with him! I desperately want to have time away Does he have the right to stop me from traveling with our sons?

A:  David's Answer:  Do you have passports for the children? If yes, then in what way is he "banning" you from going? If you have passports & de facto custody of the children, then you're free to travel with them with our without his consent. That said, you're best advised to file a petition for an order of sole custody from the Family Court. Speak to a Family Law attorney in your area for more info.   -- David Bliven, Westchester Family Law attorney (

Violating a order of protection

Q:  If a petitioner get a three way call from the respondant stating they is sorry and don't want to get in trouble they just want to see they child and the petitioner brings their child in common to a correctional facility to visit the respondent, continued communication with the respondent through mail telphone calls and other family members. What will be the out come now that the petitioner is being harrassed by respondent family members and significant other?

A:  David's Answer:  You should communicate with the relatives in writing that their continued communications at least in the manner they're conducting them - is considered harassment by you & they should cease-and-desist. Copy the letter to the respondent. If they persist, file a violation petition (assuming the order prevents third-party contact). Schedule a consult with a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (



A:  David's Answer:  Yes - the support recipient may simply start a Registration proceeding in Family Court. Once the order is registered, one can get NY SCU involved. Speak to a Family Law attorney in the area where you wish to register the order for more info.   -- David Bliven, Westchester Family Law attorney (

Can I change my sons to his step dads?

Q:  His biological father has not seen him since he was 9 months old and now he is 4. I have sole custody of him. I get no child support from his father either!

A:  David's Answer:  Yes - you can start an adoption proceeding. The biological father's consent may be dispensed with so long as the court finds that he legally abandoned the child - which means no substantial contact for longer than 6 months. Also, the child's last name can be changed within an adoption proceeding. Speak to a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (

What kind of recording and survailence is legal for a custody case in nys?

Q:  I want to hire a pi but they are too expensive

A: David's Answer:  The basic rule is that if you make a recording, you must be a party to the conversation you are recording - otherwise it is illegal wiretapping. Consult a Child Custody lawyer in your area for more info.   -- David Bliven, Westchester Family Law attorney (

How do I evict 18 yo child with extreme disrespectful behavior that has evolved over the years into physical damage to house?

Q:  Started at 14-15 y.o. Even the slightest request to "clean up" or "help around the house" results in cursing, yelling to the point that neighbors will call police, and now she is breaking things and hitting us when we try to restrain her. We have sought counseling which only lasts temporarily despite many meetings and several counselors. Each explosive episode is worse than the last with this morning's climactic episode resulting in my seeking legal advice for eviction. All my wife asked her to do was help carry clothes to the car when on their way to the gym. She has dropped out of college with only 1 semester half completed and no job (and not trying too hard to find one). Has way too much time on her hands but God forbid you try and approach her on that subject and all hell breaks loose

A:  David's Answer:  She is an adult for custody purposes, but still a minor until age 21 for support purposes. Thus, you can kick her out, but if she's financially-needy & goes on public assistance, DSS can sue you for child support until she's 21. As such, if she's violent then you can file for an order of protection in Family Court & ask that she be excluded from the house. Just be prepared to send her financial support so she can afford a place to live as the Family Court won't want to create a situation where she's homeless or destitute. Consult a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (

Abandonment and Adoption Questions

Q:  I have sole custody of my 5 year old daughter. My fiancée has been in her life since day 1. My daughters father has never seen my daughter but has filed papers for custody and visitation. He has a history of filing papers and showing up for the initial appearance but then stops appearing. I am curious as to what is considered abandonment, and what is the time frame for abandonment? Also my fiancée wants to adopt my daughter, but now that papers have been filed I understand that is not an option unless the father complies. Is there such a thing as revoking parental rights in NYS? Or does the father have to give the ok for her to be adopted by my fiancée?

A:  David's Answer:  6 months is the standard for legal abandonment in order to file for a step-parent adoption. If the father has not had "substantial contact" with the child for the 6 months prior to the filing of your adoption case, then it's likely you be able to have the adoption approved. Speak to an adoption lawyer in your area.  -- David Bliven, Westchester Family Law attorney (

An unmarried couple with a child in common living together in a family relationship in Westchester County, NY.. The child's

Q:  father is the legal homeowner and will seek custody of the child because the mother is a chronic alcoholic. The relationship cannot be saved. Rehab and therapy have not worked. Can the mother be ordered or evicted from the home if she is not willing to leave voluntarily?

A:  David's Answer:  Yes - the homeowner would need to give due notice of the eviction and then start a summary eviction proceeding in civil court. Simultaneous to same he should file for custody. The father should schedule a consult with a Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (

Can I adopt an 18 year old in NYC?????

Q:  I want to adopt an eighteen year old. I'm in a same sex relationship with the 18 yr olds mom for 17 years. I've been a second parent to my partners child for seventeen years without any legal documents. We've never had any issues with doctors or schools concerning my parental rights. I want to insure he will receive his inheritance from myself.

A:  David's Answer:  Yes you can, but it's considered an adult adoption as the child's over 18. As such, the adoption gets filed in Surrogate's Court. Speak to a Surrogate's Court lawyer in your area for more info.   -- David Bliven, Westchester Family Law attorney (

I live in Oswego County. I am heavily in debt from a divorce. My 'spousal support' obligations expire or are fulfilled

Q:  as of October 16th, 2014. These payments are automatically deducted from my paycheck. Does this payment to my exspouse automatically cease when this date occurs as per cour order, or do I have to file in court to have it stopped? NY Child Support Division has no answers. Also, my ex claims she is going to convert her support to child support...can she co this? She and her live in boyfriend refuse to work. He "provides no income to the household" Can someone help me?

A  David's Answer:  Is the child the mother wants you to support yours? If yes, then she can file a child support petition against you until the child is 21. If no, then you do no have an obligation to support the child. If you do not see the garnishment stop when it should, you may file a petition in Family Court to obtain a court order terminating the garnishment.   -- David Bliven, Westchester Family Law attorney (

As of right now, myself and my girlfriend are still together. she is due in june. would there be any steps that i should be

Q:  considering for if something were to happen between us and we had seperated? we are not married yet as well.

A:  David's Answer:  If you think you're gearing up for a custody fight, then simply be as involved as possible in every aspect of the baby's life - i.e., be a great Dad. And keep a daily journal as to what tasks you perform versus the mother.  -- David Bliven, Westchester Family Law attorney (

The custodial parent will not provide the Social Security numbers to the non-custodial parent. How do I compel her to?

Q:  I need these to file a NYS Non Custodial parent income credit.

A:  David's Answer:  Unless there is an agreement or order to the contrary, then the custodial parent always gets the tax deduction for the child per IRS regulations. If the CP does not agree to same, you'll need to file a petition & ask for an order allowing you to claim the deduction. Speak to a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (

Confused about jurisdiction for CPS

Q:  My ex-wife called CPS in NY for some bruises left after a spanking (which I feel horrible about), but then when they talked to the child he said he was beat by his step mom with a belt the night before. I even called my ex after I spanked him to let he know, but did not know it would bruise. Pictures were taken and report filed in NY. Anyways CPS from NY put the referal into PA, and since then I was interviewed. I just recieved a letter today that (PA) is closing the case after the having the interview and nothing was found. Just bad jugdement on my part. I still feel bad about the situation. However, can NY still come after me and my wife for abuse? Eventhough PA has decided to close the case...The spanking happened in PA, and the mother filed a report in NY, who has jurisdiction on this

A:  David's Answer:  If the child resides in NY, then NY could have jurisdiction even if the abuse actually occurred in PA. Speak to a Family Law attorney in the Ithaca area.   -- David Bliven, Westchester Family Law attorney (

Wednesday, April 2, 2014

When is it considered abandonment?

Q:  my ex is telling me she is going on vacation and wont be around and will not give me any other details. but the way she is talking to me makes it seem like she will not be around for a long time. we have shared custody but I have primary placement. Parenting time is about 58% me 42% her. but I just don't want her in and out my child s life. she makes it sound like she will be away for years and told me not to tell anyone she is gone or that I even talked to her. I just don't understand. I just don't want her to come back in 1 year or longer and expect the visitation to be the same. I mean I am all for her being a part of her life but I just don't want my daughter use to just having me and then all of a sudden she comes back and I have to tell my daughter oh by the way this is your mom.

A:  David's Answer:  Adoption law considers more than 6 months to be legal abandonment. That said, visitation law does not have such a "bright-line" rule. You should ask her when she's returning & ask her to provide the itinerary. If she refuses to do so, move to modify the custody order & ask for sole custody. Speak to a Family Law attorney in your area.  -- David Bliven, Westchester Family Law attorney (

I was ordered to pay 61% of daycare costs to my ex wife. What about when they are with me? Does she pay the 39% to me?

Q:  I live in CA and she lives in NY. I relocated for a job. Verbatim from my divorce decree Order, adjudged and decreed that the Plaintiff shall parenting time with the parties’ children as the parties may mutually agree upon with the Plaintiff/Husband paying the cost of any transportation and lodging associated with the travel of the children with respect to issues of parenting time. Order, adjudged and decreed that the Plaintiff shall reimburse the Defendant for 61% of any work related child care expenses, which shall include the cost of pre-school expenses. The Defendant shall send the Plaintiff copies of bills and receipts for those expenses and the Plaintiff shall have thirty(30) days to reimburse the Defendant of those expenses.

A:  David's Answer:  The key is that the judgment of divorce does not say the opposite - that Defendant shall reimburse Plaintiff for 39% of child care expenses while the children are in his care. If you believe this should've been made a part of the judgment, then you'll need to file a motion to modify the judgment. Be prepared to explain why, as a noncustodial parent, the children would by in daycare while visiting you. Consult a Family Law attorney in your area.   -- David Bliven, Westchester Family Law attorney (         

What is the best way to prove your whereabouts if you live alone? I had a warrant issued for breaking Order of Protection?

Q:  So I have been accused of going to the house of a person who has an order of protection against me. However, I never went to the house or do I even drive close to it because I don't want to get accused of getting close. My ex girlfriends new boyfriend completed a witness statement saying I was walking up the driveway and said words to him. I did not leave my house that day at all but live by myself. How do I prove that I was at home? The whole story is a fabrication and even my Public Defender does not believe me. Please help.

A:  David's Answer:  If you had a cell phone, consider a subpoena to the cell phone company for the GPS records for your phone (all such phones have internal GPS mechanisms). If there is one common route between your house & the other house, consider a subpoena for traffic cameras or security cameras which may be positioned along the route. Speak to an attorney in your area.   -- David Bliven, Westchester Family Law attorney (