Saturday, February 28, 2015

Is there any legal precedent/case law whereby a child of 14 or older was placed (even 50%) with a protective parent

Q:  when the child didn’t request that change in custody? Particularly when it’s proven that the primary residential parent has been physically, emotionally and/or verbally abusing the teenager? If you have any familiarity with abuse, this would not be confusing – in this case, the abusive father threatens many things if the daughter leaves, like she’ll no longer get his assets when he passes and will have to struggle her whole life, etc. (the same type of financial blackmail that makes grown women stay with abusive husbands even when videotapes show that he’s beating her up.) Or fear that a beloved pet will mysteriously be hit by a car or disappear like that of a sibling who left him. I’m providing these examples because some people like to oversimplify & say the child should just leave.


A:  David's Answer:  Are you saying the Judge switched custody after the child turned 14 - and against the child's stated preferences? If yes, there's plenty of caselaw supporting the "strong factor" a child preference would play at this age. That said, if the Judge already made a determination, your remedy may be an appeal - and even that assuming the decision/order was done 30 days ago (& thus you'd still be able to file a notice of appeal). Schedule a consult with a Westchester Family Law attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Saturday, February 21, 2015

Do Supreme Court judges allow family and friends to provide support by sitting in the back of the courtroom?

Q:  This relates to a matrimonial / family-related case.


A:  David's Answer:  The courtroom is presumptively open to the public - which thus includes friends or relatives. That said, if those friends or relatives may be called as a witness, the Judge has discretion to exclude them during pre-trial hearings. Call a Westchester Family law attorney to schedule a consult for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

For a post-divorce custody case in Supreme Court, I read that the opening statement should be no more than 4 minutes. How long

Q:  …..should it be for the preliminary hearing as opposed to the full hearing?


A:  David's Answer:  There is no pre-set limit whether you're talking about a preliminary proceeding or a trial. The term "opening statement" really only applies to a trial proceeding, however. That said, then length of how long the Judge will permit you to make a statement (either way) is in the discretion of the individual Judge. Schedule a consult with a Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

My daughter had an extremely bad law guardian during my divorce, which ended four years ago. He didn't believe her which caused

Q: her much anguish and caused her younger sister to be abused as well. She's now 22 and just decided she wants to go to law school. Can she graduate in three years and sue her law guardian?


A:  David's Answer:  The statute of limitations on legal malpractice is 3 years. While it's tolled until she turns 18, it starts running at that point. Thus, if she's already 22, it's too late. She can always try filing a complaint with the local Bar Association, however (and/or file a complaint with the Attorneys for Children office at the Appellate Division, 2d Department). Call a White Plains Family Law attorney for more info. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Friday, February 20, 2015

Will I be able to move?

Q:  Right now I live in a small town where everyone knows my ex. We are going through a 3 year divorce. I want to move 20 miles away. My daughters school district would change. Also where I want to move is several minutes from my job and would cut back on my 40 minute during rush hour commute. Is it possible in NY to move 20 miles away. I have primary custody and we share legal custody. There is no moving clause in my custody agreement.


A:  David's Answer:  If there's no radius clause, then the issue will be the potential impact on your ex's visitation as well as involvement in the child's activities. Because you have joint custody (which is what I assume you mean by "legal custody"), you're required to have a meaningful discussion with your ex about your plans. Thus, have that discussion & take things from there. Schedule a consult with an Orange/Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Saturday, February 14, 2015

My father agreed to pay 75% of my student loans in the divorce agreement he signed with my mother. He has not paid.

Q:  My father agreed to pay 75% of my outstanding student loans from college and he has not paid. The agreement stated that I remain in college as a full time student and graduate within four years. all of which I did. He agreed to this in his divorce against my mother back in 2007. How do I sue him for the money he owes as he is stating that his circumstances were different back then. Is he not responsible for the 75%?


A:  David's Answer:  If he never moved to modify the agreement, and assuming it was incorporated into a judgment of divorce, then he most likely won't be able to "get out of it" now. That said, your mother would be the proper party to bring the enforcement action. Schedule a consult with a Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Wednesday, February 11, 2015

HIppa and parental rights? I am the primary, residential parent w/ final decision making power. What rights were violated at ER

Q:  the non custodial allowed my 7 year old to not only eat junk food and soda all day- but he is a holistic child who lives on organic food- non-gmo and has a holistic pediatrician, never gets sick and ended up in the ER while in the fathers care, the ER Dr. treated me like dirt and didn't allow me to speak from walking in after I drove close to an hour upon a text message- the Dr. without a medial record or my sons pediatricians consent or mine- gave my child a drug that would have side effects if my child was allergic, when I asked what he gave my child he called cps on me for "denying medical attention" I had no opportunity to deny or agree as I was treated l like dirt and ignored. the dr also said he had the medical records but later we found out it was a lie

Additional information

also; my sons fathers present girl friend (whom he has beat up & lives with) works at this hospital & was very friendly with the Dr and staff who all treated me with disdain- felt like I walked into the lions den. She was welcome with my child the whole time while I with NO bad background had 10 minute visits and had to keep my mouth shut. The dr told me I was out of line for asking my child what he ate all day. Can someone help -


A:  David's Answer:  If you have joint custody with final decision-making (as is implied in your narrative), then the father arguably violated the terms of the joint custody decree. And unless the Hospital deemed it to be an emergency situation & couldn't wait for your consent, then you may have a medical malpractice case against the hospital (& should contact an attorney who handles such cases). Nevertheless, you may wish to consider filing a petition to modify the joint custody decree to make it more specific regarding medical decisions. Schedule a consult with an Orange/Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

I submitted an Order to Show Cause to the sheriff's office on Friday, Jan 30, asking them to serve the papers by today, Feb 6...

Q:  But I could tell that my ex did not receive the Order yet, so I called the sheriff's office and they said someone had tried to serve the papers yesterday, Thursday. If the sheriff's office isn't successful in serving the papers today, what will happen? The Court said the papers had to be served by today, Fri, Feb 6. Will I be in violation of a Supreme Court order? 
Here's the timeline. I brought the papers to the Supreme Court on Fri, Jan 23. I received an email from the Court with instructions late on Mon, Jan 26. Tuesday was the epic blizzard, so everything was shut down. I didn't go to the sheriff on Tue or Wed, because I didn't want the papers to arrive on my daughter's 16th birthday. So I brought them to the sheriff last Friday, thinking a week was OK.


A:  David's Answer:  If the papers are served late, but your wife still shows up in court, it likely won't be an issue. If she doesn't show up, however, most likely the Court will adjourn the matter & give you additional time to serve. That said, no offense to the Sherriff's Office, you're better off going with a licensed process server. Schedule a consult with a White Plains Family Law attorney for a full assessment.   -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

I took my ex to court to receive daily phone calls with our child. The order was signed but the 30 days are not up yet. The orde

Q:  Order include frequent telephone contact and my ex has already not allowed it. Can I take her back for a violation now or should I wait til the order is final


A:  David's Answer:  If the order was signed by the Judge, then it is final. I believe the "30 days" you're talking about is the time to appeal. That said, I'd advise to first send a default notice letter to the offending parent, stating the alleged violation & asking that they follow the order henceforth. If there's then another violation, file your petition. Schedule a consult with a Rockland/Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Custody visitation violation

Q:  I sent my ex an email letting her know that I am going to take our daughter out of town on a weekend my ex is scheduled to be with her. My ex never replied and I am still going to take my daughter. If my ex does not reply and I still take her, will this be considered a violation even though I informed her?


A:  David's Answer:  Yes, assuming there's a court order in place giving her that weekend. If you alter what's in the order, it must be upon express agreement - not you merely dictating what you're going to do whether she likes it or not. For a full assessment, schedule a consult with a Westchester Child Custody lawyer.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net

Wednesday, February 4, 2015

What help or advice can I get

Q:  My husband has neglected me and I have be struggling finacially to even buy food for the pass two years. He doesn't do anything to help me I even of to put gas in his car if I ask for a ride to go any where.


A:  David's Answer:  It seems like the thing for you to do is file for divorce. You can then ask for asset distribution as well as possibly alimony (i.e., maintenance). Call a Westchester Family Law attorney to schedule a consult for a full assessment.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net