Q: I am recently remarried. I plan to take my husband's last name. I have 2 children from first marriage. I would like them to also have my husband's last name as he is the person who supports them. Biological father not involved in their lives and is willing to agree with the name change but not to my husband adopting them. Is it possible for me to change their last name without my husband adopting my children? If so, could I change my last name change and theirs at the same time so I don't pay extra court fees?
A: David's Answer: Your can change your surname on the marriage certificate, but will need to file a separate court action to change the children's surnames. Here's some info regarding same:http://www.nycourts.gov/courthelp/namechangeinf.... Call a Westchester Family Law attorney for more info. -- David Bliven, Westchester Family Law attorney (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.
Friday, June 27, 2014
If I was a victim of domestic violence and my children were unharmed can ACS find my case indicated?
Q: Me and the father of my children were in an argument and it got physical at the end of the argument my daughter woke up and saw us arguing. ACS was called by police. We went to the hospital and were completely OK. ACS has been coming to my home and the worker told me the case was going to be indicated and it was going to remain in my record until my youngest child turns 28. I am currently in school to become a teacher and dont want this to affect my career. I have never harmed my children. I removed them from a violent situation they were unharmed and now ACS wants to give me a record for the next 25 years because my daughter saw us arguing. Please is there anything I can do to fight this off. I cant afford to have a ACS case on my record when I intend to be working with children. Thank U
A: David's Answer: If you were not at fault in the situation, but instead were a victim of domestic violence, then I don't see how the case can reasonably be "indicated." You should file for an administrative review - which usually becomes a fair hearing. Your letter from ACS indicating the report will contain instructions on how to challenge the indicated report. You'd greatly benefit from having an attorney represent you at the fair hearing. Call a Family Law attorney in your area for a consult. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: If you were not at fault in the situation, but instead were a victim of domestic violence, then I don't see how the case can reasonably be "indicated." You should file for an administrative review - which usually becomes a fair hearing. Your letter from ACS indicating the report will contain instructions on how to challenge the indicated report. You'd greatly benefit from having an attorney represent you at the fair hearing. Call a Family Law attorney in your area for a consult. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can I revoke my rights as an adoptive parent?
Q: My ex wife & I adopted our children in October. Back in August of that same year, she told our adult children she was going to leave the marriage after the adoption & the holidays. By January she did........now I am being dragged into court by CPS for something she did. She receives close to $1,000 a month per child (3). We agreed that I would not pay support (but send money for school clothes, holidays, birthdays, etc. The court is ordering me to pay back support...my argument with the court is that the adoption was under false pretenses. Do I have any recourse?
A: David's Answer: You can always try filing a motion with the Adoption Judge asking to rescind the adoption. It seems to me the odds are extremely unlikely you'd prevail, as adoptions are intended to be permanent. Schedule a consult with a Family Law attorney in your area.
A: David's Answer: You can always try filing a motion with the Adoption Judge asking to rescind the adoption. It seems to me the odds are extremely unlikely you'd prevail, as adoptions are intended to be permanent. Schedule a consult with a Family Law attorney in your area.
-- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
If I got child protective on my case can that stop me from getting transferred to another job out of state?
Q: A month n a half later Child protective close the case then for some stupid reason she said it's reopen again because the guy never got arrested.
A: David's Answer: Unless CPS has stated they're intending to file a neglect case against you, then they cannot prohibit you from moving. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Unless CPS has stated they're intending to file a neglect case against you, then they cannot prohibit you from moving. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Entering Fathers Name in Birth Certificate
Q: Hi i am sheraz from Pakistan my wife gave birth to my daughter in NY.She did not entered my name in the father's name column all i want to ask
1.What i have to do to enter my name in the birth certificate which is issued in New York.As my wife and me are now separated so need advice?
2. Can i enter my name through US Embassy in Pakistan.
3.And how to approach the US Embassy for the same.
1.What i have to do to enter my name in the birth certificate which is issued in New York.As my wife and me are now separated so need advice?
2. Can i enter my name through US Embassy in Pakistan.
3.And how to approach the US Embassy for the same.
A: David's Answer: You would need to file a paternity petition with the Family Court in the county where the mother resides with the child. Call a Family Law attorney in that county to schedule a phone consult regarding same. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Wednesday, June 18, 2014
Is it NYS law having to name a family member beneficiary on a life insurance policy
Q: mother and father never married. child born out of wed lock. Father does not have any contact with child EVER but does pay mandated child support. by law (NYS) is the father obligated to provide life insurance for the child and name the child 100% beneficiary.
A: David's Answer: Pursuant to FCA Sec. 416(a), the Court MAY order a parent to take out a life insurance policy, but same is neither automatic nor mandatory. Schedule a consult with a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Pursuant to FCA Sec. 416(a), the Court MAY order a parent to take out a life insurance policy, but same is neither automatic nor mandatory. Schedule a consult with a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Moved from buffalo to texas owes 79,000 in arrears can i still serve himin texas
Q: unable locate at last address willful violation of court order no show no recent address now found in Texas I have summons to serve him can i still serve in Texas arrested before for non support jumps from county to county evading courts and taxes collected unemployment once thought he was in state of New York but now found in Texas how can i serve him
A: David's Answer: Yes, if you still live in NY & your violation case is pending in NY, but he moved to TX, you can still serve him in TX. The reason is that personal jurisdiction on him was established via the original case, so for modification or enforcement proceedings you need only have him served with the summons (without the need to re-establish personal jurisdiction). Schedule a consult with a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Yes, if you still live in NY & your violation case is pending in NY, but he moved to TX, you can still serve him in TX. The reason is that personal jurisdiction on him was established via the original case, so for modification or enforcement proceedings you need only have him served with the summons (without the need to re-establish personal jurisdiction). Schedule a consult with a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I need some information about family law/custody/adoption, i dont know what the rules are in the USA
Q: I need to know for 2 girls that recently lost their dad, mom died 8 years ago. They're living with a friend of dad now but they wanna stay with me. The problem is that that friend doesnt allow them to have any contact with me, nore with their friends. (He hired bodyguards for them). Another problem is that i'm living in the Netherlands but wanna do everything for those girls.
Have to fill in a city and State but dont recognise my city so i fill in albany, new York
A: David's Answer: First you need to file for guardianship of them. You can only really file for adoption once the children are actually living with you. You'll need to file the guardianship petition with the Family Court in the county where the children currently reside. Call a Family Law in the Albany area to schedule a consultation. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Have to fill in a city and State but dont recognise my city so i fill in albany, new York
A: David's Answer: First you need to file for guardianship of them. You can only really file for adoption once the children are actually living with you. You'll need to file the guardianship petition with the Family Court in the county where the children currently reside. Call a Family Law in the Albany area to schedule a consultation. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I have an open child support order with my ex-husband, who has not really paid much in the past 10 years.
Q: Our children are now 21, 19 and 15 years old and have kept the lines of communication open with him throughout the years. We struggled a lot and I once resented him. Today, my life is a bit different. I'd like to cancel the $50 per month I am receiving plus the $21,414.00 in arrears. My case is in New York. Do I file the Petition for Relief From Support Payments and Commitment with the Court?
A: David's Answer: You can just file a petition to terminate the support. You can go to the Clerk's Office of the Family Court - they can assist you in drafting the petition. Call a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: You can just file a petition to terminate the support. You can go to the Clerk's Office of the Family Court - they can assist you in drafting the petition. Call a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
How can I get sole custody of my 2 children?
Q: If I been through Domestic Violence (physical, emotional, verbal abuse) and my kids father has a smoking issue and I don't trust him with our kids because he has a thing of messing around with the person who threatens to kill our kids and wishes death on our kids. How can I get sole custody? I am due to have our second child in a few days. He is either going to be held in jail or be released today from court. There is a restraining order out against him to stay away from me and our daughter because he threatened homicide suicide if I left him. Our daughter is going on 2 years old in a few months. I didn't mention to the ADA that even while he was in jail he put threats towards me if he does not get out of jail. I just want him out of our lives. How can I get him away from us for good?
I've been and with the help from my family have been the main provider for my daughter. I'm going to be the main provider for both of our children. I don't know what to do. He would take money from me to get high and it was money that was given to me that I was saving for our daughter possible needs. I don't know what I was thinking staying around for so long.I need help to get him out of my kids life. He is sick in the head. I'm tired of the threats and all. I want to move out of NY and don't want him trying to follow me. That's been one of his threats as well. That if I left him and if I took the kids away from him especially since our kids are the only one of his that has his last name he would come after me harder than any of the other baby mothers that he have. I want to get away from all the hell I been through in almost 3 years of being with him. He is a threat to me and my kids. I just tried hard to believe he would change. I was wrong.
A: David's Answer: You should file a petition for sole custody. If he's convicted of the domestic violence against you, then the odds would be very long indeed for him to successfully contest custody against you. That said, it may be advisable to mention to the ADA about his threats. Call a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Additional information
A: David's Answer: You should file a petition for sole custody. If he's convicted of the domestic violence against you, then the odds would be very long indeed for him to successfully contest custody against you. That said, it may be advisable to mention to the ADA about his threats. Call a Family Law attorney in your area for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Why would a magistrate approve a modification if the respondent has not paid in a few years?
Q: My child's father owns a real estate company. He has not paid his support in a few years, now he's petitioned for a modification after getting a notice from cse of intent to garnish wages. He then made a $100.00 payment after receiving the notice. While nearly $10,000 in arrears, and hiding his assets, why would a judge agree to a modification?
A: David's Answer: A Magistrate may still grant the modification going forward, but cannot modify prior to the date of the petition filing (thus, the arrears would stay). The father would still have an obligation to prove what his income is & thus that he's entitled to a downward modification. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: A Magistrate may still grant the modification going forward, but cannot modify prior to the date of the petition filing (thus, the arrears would stay). The father would still have an obligation to prove what his income is & thus that he's entitled to a downward modification. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Friday, June 13, 2014
How much will a Contested Custody or Divorce case cost me?
Written by David Bliven
Family Law Attorney - White Plains, NY
- Attorney Fee
- Child Custody
- Cost
- Divorce
- Family Law
I get this question a lot & of course the answer depends on how extensive the litigation gets. The more I have to do, the more the client gets billed. But some guidelines on the expected costs are provided below.
1 - Contested Custody Costs
Because Family Court custody cases in NYC & Westchester can last 1-2 years, attorney's fees may be as little as a few thousand, and as much as $25,000 or more over that period. Thus, broken down, it means an average of about $1-2,000+ per month over the life of the case. Be forwarned, however, that in some cases, there is alot more billing towards the front-end of the case (e.g., when trying to establish interim orders of access, etc.) and towards the back-end of the case (i.e., when the trial starts). Thus, while $1-2,000 per month may be an average, some cases may see billing of $5,000 or more in a month, and then other months have only a few hundred dollars billed to the account.
2 - Contested Divorce Costs
Contested divorce cases often cost even more than contested custody cases, simply because all the potential issues between the parties are handled in 1 case. Thus, issues of custody & visitation, child support, maintenance (i.e., alimony) and equitable distribution fo marital assets & debts are all done in one case. Moreover, depositions are routinely done in contested divorce cases; they are rarely done in contested Family Court custody cases. A a result, the expected fees on a contested divorce case are roughly double what one could expect to pay for a "mere" Family Court custody case. As such, one may expect to pay as little as a few thousand and as much as $50,000 or more. Indeed, I've handled contested cases with counsel fees as high as $100,000 or more. If the client gets in over their head financially, a number of options are available, including borrowing against assets or retirement (though this may take court permission), payment plans and/or legal financing. It should be noted that, while I do offer payment plans in some cases, I do not offer payment plans to all clients & in all cases. In sum, in a highly contested case, the client should be forewarned about expected costs and should raise any payment concerns with their lawyer as early in the process as possible.
Wednesday, June 11, 2014
Why would a magistrate approve a modification if the respondent has not paid in a few years?
Q: My child's father owns a real estate company. He has not paid his support in a few years, now he's petitioned for a modification after getting a notice from cse of intent to garnish wages. He then made a $100.00 payment after receiving the notice. While nearly $10,000 in arrears, and hiding his assets, why would a judge agree to a modification?
A: David's Answer: A Magistrate may still grant the modification going forward, but cannot modify prior to the date of the petition filing (thus, the arrears would stay). The father would still have an obligation to prove what his income is & thus that he's entitled to a downward modification. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: A Magistrate may still grant the modification going forward, but cannot modify prior to the date of the petition filing (thus, the arrears would stay). The father would still have an obligation to prove what his income is & thus that he's entitled to a downward modification. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I singed my rights of my youngest child and im now having another baby what are the chances of me being able to have my baby
Q: in 2011 i had lost custady my child esme and they charged me with neglact i fought for 2 yrs to get her back but in the end the court did not want to remove her from the foster family so i was given an option to either vulintary singed my rights over or have them taken from me i choose to willinly singed them over and now a year later im pregnet with a nother child i was told that i was not going to be on a list i would like to know my chances of being able to keep my child with out the stress of cps
A: David's Answer: CPS will not necessarily know of the birth of your new child, unless for some reason they are still monitoring your household. Thus, unless you neglect the new child, no reports should be called in. That said, the question then becomes whether you've solved the problems that led to the original neglect charges. If you haven't, the time is now to get treatment or help to eliminate that issue. Schedule a consult with an Orange/Westchester Family Law attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: CPS will not necessarily know of the birth of your new child, unless for some reason they are still monitoring your household. Thus, unless you neglect the new child, no reports should be called in. That said, the question then becomes whether you've solved the problems that led to the original neglect charges. If you haven't, the time is now to get treatment or help to eliminate that issue. Schedule a consult with an Orange/Westchester Family Law attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Saturday, June 7, 2014
If a 17 year old and a 25 year old have a child, does the 17 year olds mother have any custody?
Q: So as listed in the question a 17 year old "minor" and a 25 year old have a baby. Is the 17 year olds mother allowed to "take" the baby from either parents? Mind you they are both fit of raising the child. He works full time and has a decent job and provides for the mother and child just fine. The child has established medical coverage and sees the pediatrician regularly and has all scheduled vaccinations.
A: David's Answer: Assuming the 17yo is the mother of the child, then I don't understand your question regarding "taking the baby from either parents," when she IS a parent of the child. If the child is living with her, then she has de facto custody. But if either parent wishes to establish legal custody, either may file a petition for same with the Family Court. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Assuming the 17yo is the mother of the child, then I don't understand your question regarding "taking the baby from either parents," when she IS a parent of the child. If the child is living with her, then she has de facto custody. But if either parent wishes to establish legal custody, either may file a petition for same with the Family Court. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can I file a petition for custody even if I live in the same house as my estranged husband?
Q: The Court has already dismissed petition for support because my husband testified that he resides in house 4 nights a week and 3 nights with his girlfriend.
We plan on getting divorced. Other than a family court order, what can I do to keep custody of our child until a divorce order is granted?
A: David's Answer: You should just file for divorce & then file a motion in the divorce case for an order of interim primary custody. You may also include a claim for exclusive occupancy of the marital residence. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Additional information
A: David's Answer: You should just file for divorce & then file a motion in the divorce case for an order of interim primary custody. You may also include a claim for exclusive occupancy of the marital residence. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
FAMILY LAW: CIVIL. What does 'abuse of discretion' mean?
Q: I am considering appealing a Commissioner's decision on matters of Modification of Child Support and Verified Contempt of Parenting Time. I feel that I provided a preponderance of testimony (Commissioner wld not accept ANY tangible proof into evidence). The Fact of Findings either does NOT reflect my testimony or has slanted it in favor of the other party. basically, my motions mentioned above were Denied. I believe the transcripts will show that the weight of testimony given by the parties is on my side and was mostly excluded in the decision making process. The other party did NOT deny much during the hearing and also confirmed that he did do what I alleged in my motions/complaints so I feel that I met the burden of proof.
A: David's Answer: Abuse of discretion in a nutshell means you believe based on the evidence presented the Magistrate clearly reached the wrong conclusion of law. Assessments of credibility will usually be the sole province of the Magistrate. Bear in mind that you only have 30 days from the date of the order (35 days if it was mailed to you) to file an Objection appeal. Schedule a consult with a Family Law attorney in your area for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Abuse of discretion in a nutshell means you believe based on the evidence presented the Magistrate clearly reached the wrong conclusion of law. Assessments of credibility will usually be the sole province of the Magistrate. Bear in mind that you only have 30 days from the date of the order (35 days if it was mailed to you) to file an Objection appeal. Schedule a consult with a Family Law attorney in your area for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
How can i get my children back from me smoking weed
Q: Drugs in my system
A: David's Answer: If your children were taken away from you by ACS/CPS, then you have a right to a "1028 hearing," which is an immediate hearing asking for a return of your children to you from foster care. Pursuant to a 1995 Court of Appeals decision "Matter of Dante M." a positive toxicology, in itself, should neither result in a removal of your children, let alone a neglect case filed against you. You should immediately file for a 1028 hearing & call a Family Law attorney in your area for a consult. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: If your children were taken away from you by ACS/CPS, then you have a right to a "1028 hearing," which is an immediate hearing asking for a return of your children to you from foster care. Pursuant to a 1995 Court of Appeals decision "Matter of Dante M." a positive toxicology, in itself, should neither result in a removal of your children, let alone a neglect case filed against you. You should immediately file for a 1028 hearing & call a Family Law attorney in your area for a consult. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can I be kicked out of my dad's house if I do not pay rent and have not been served an eviction notice?
Q: I am 20 years old living with my dad and he has threatened to kick me out of the house in 3 days. I have not been served an eviction notice and can prove that I have lived in the house for months. Can I be forced to leave? Also, if I leave the house and the door is locked, but I enter using my keys, can I be charged with trespassing if the police are called?
A: David's Answer: I am 20 years old living with my dad and he has threatened to kick me out of the house in 3 days. I have not been served an eviction notice and can prove that I have lived in the house for months. Can I be forced to leave? Also, if I leave the house and the door is locked, but I enter using my keys, can I be charged with trespassing if the police are called? -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: I am 20 years old living with my dad and he has threatened to kick me out of the house in 3 days. I have not been served an eviction notice and can prove that I have lived in the house for months. Can I be forced to leave? Also, if I leave the house and the door is locked, but I enter using my keys, can I be charged with trespassing if the police are called? -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
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