Q: before i can be incarcerated
A: David's Answer: No - your trial was that which occurred before the Magistrate. The Judge is now going to hold a "confirmation hearing" which is the equivalent of a sentencing hearing after one is found guilty in criminal court. You may certainly (via your lawyer) point out why you feel the magistrate "got it wrong" and/or update the Judge which documentary evidence of any change of your circumstance since the willfulness trial. In any event, if you're looking for a 2d opinion, schedule a consultation with a Westchester Family Law attorney. -- 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.
Saturday, June 22, 2013
HIPPA Violation
Q: Understand there are HIPPA rules and regulations for children over the age of 18. Health insurance company mailed information regarding medications (exact name of medication is named in letter) to father. (Kids do not live with their father.) Isn't this a violation of HIPPA laws?
The insurer will not talk to me (mother) regarding anything (even simple claim status) since the kids are over age 18.
A: David's Answer: I'm not quite sure of the exact provision you're addressing within HIPAA, but this is from HIPAA's official website: "A health care provider also may share information with these persons if, using professional judgment, he or she decides that the patient does not object." (http://www.hhs.gov/ocr/privacy/hipaa/faq/disclo...). As such, because your "children" are actually now adults, if they have an objection to the disclosure, they much communicate their objection to the Doctor(s) involved - and preferably confirm same in writing so it's documented in their medical file. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
The insurer will not talk to me (mother) regarding anything (even simple claim status) since the kids are over age 18.
A: David's Answer: I'm not quite sure of the exact provision you're addressing within HIPAA, but this is from HIPAA's official website: "A health care provider also may share information with these persons if, using professional judgment, he or she decides that the patient does not object." (http://www.hhs.gov/ocr/privacy/hipaa/faq/disclo...). As such, because your "children" are actually now adults, if they have an objection to the disclosure, they much communicate their objection to the Doctor(s) involved - and preferably confirm same in writing so it's documented in their medical file. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can an ex be ordered to pay for legal fees in Family Court?
Q: My ex continues to interfere with my visitation with our son. I've filed for enforcement before and recently filed enforcement and modification in court. Since filing, interference from my ex on my visitation continues. I plan on filing another enforcement and an Order to Show cause. My ex makes much more money than me and navigating through the legal process is becoming difficult since I am pro se. If I obtain counsel (I would have to borrow from family) can I petition for me ex to pay for the expenses? Do judges normally grant these requests or is it difficult?
A: David's Answer: Yes, Family Court may grant counsel fees. If based on a disparity of income, the court would need to consider the support he provides you for the child. The Court would also need to consider whether you would otherwise have the ability to have assigned counsel (for instance, if your income is below about $35-40,000). For a full assessment of your situation, I highly suggest that you schedule a free consultation with a Westchester Child Custody attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Yes, Family Court may grant counsel fees. If based on a disparity of income, the court would need to consider the support he provides you for the child. The Court would also need to consider whether you would otherwise have the ability to have assigned counsel (for instance, if your income is below about $35-40,000). For a full assessment of your situation, I highly suggest that you schedule a free consultation with a Westchester Child Custody attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Please Plain and simple..If the 66% clause is only addressed in transcripts not in final court paper and he is not complying?
Q: Do I have a leg to stand on providing I file a motion to resettle? Why would the clause not be in included in my original court papers?
A: David's Answer: No - you do not. I clearly already explained in your prior post what a "motion to resettle is." Procedurally, this will not accomplish what you want. I also do not understand what you mean by "not included in my original court papers." All the more reason to schedule an office consultation with a Westchester Divorce attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: No - you do not. I clearly already explained in your prior post what a "motion to resettle is." Procedurally, this will not accomplish what you want. I also do not understand what you mean by "not included in my original court papers." All the more reason to schedule an office consultation with a Westchester Divorce attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I am able to fie a motion to resettle prior as well as an order of contempt and a change of circumstance all at the same time?
Q: ex is not paying for 66% of extras as stated in transcript - not court order. Do I need to file three separate motions? Contempt? motion to resettle prior court papers as well as a change of circumstance to due a job promotion on his behalf?
A: David's Answer: If you are "re-settling" an order, it means there was some error in the original order which you're requesting the Judge to correct. Moreover, if there is no court order as yet, but merely a settlement placed on the record, then the best thing you can do is to submit judgment in the divorce case and then move to enforce the judgment. Finally, if the final judgment hasn't been signed yet, it appears premature to file any application for a change of circumstances. That said, I highly suggest that you schedule a follow-up consultation with a Westchester Family Law attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: If you are "re-settling" an order, it means there was some error in the original order which you're requesting the Judge to correct. Moreover, if there is no court order as yet, but merely a settlement placed on the record, then the best thing you can do is to submit judgment in the divorce case and then move to enforce the judgment. Finally, if the final judgment hasn't been signed yet, it appears premature to file any application for a change of circumstances. That said, I highly suggest that you schedule a follow-up consultation with a Westchester Family Law attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Saturday, June 15, 2013
QMCSO
Q: QMCSO states the alternate recipient is to receive reimbursements for paid medical expenses. If the health insurer refuses to do so, can (should) the employer make payments to the alternate recipient? This is a self-insured, self-funded insurance plan.
A: David's Answer: I'm not sure what you mean by "self-insured, self-funded" plan. Moreover, a QMCSO cannot be made to apply to an employer - only to an insurance company. If the insurance company is refusing to abide by the QMSCO, then 1 of 2 things: (1) contact the company to see why the are not honoring the order (and possibly file a motion to enforce it against them with the court), (2) write the insured & ask him/her to reimburse you directly - and if s/he refuses, file a violation petition. For a full assessment, I suggest that you schedule a consultation with a Westchester Family Law attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: I'm not sure what you mean by "self-insured, self-funded" plan. Moreover, a QMCSO cannot be made to apply to an employer - only to an insurance company. If the insurance company is refusing to abide by the QMSCO, then 1 of 2 things: (1) contact the company to see why the are not honoring the order (and possibly file a motion to enforce it against them with the court), (2) write the insured & ask him/her to reimburse you directly - and if s/he refuses, file a violation petition. For a full assessment, I suggest that you schedule a consultation with a Westchester Family Law attorney. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
My husband left me and my daughter two month ago and got his own apartment. I am very ill and can't work.
Q: I suffer from multiple autoimmune diseases and have not worked so I can't apply for disability. So far he has paid the bills and rent but is threatening to stop. If he does, I will be on the street. I certainly can't afford to hire a lawyer. What are my options. Please, please help me. I am desperate.
A: David's Answer: Some lawyers under these circumstances will apply to the Court to force your Husband to pay counsel fees. It laregly depends on how much he makes, as the court will need to look at his income - after factoring in that he'll be paying child support - to see whether he not only has sufficient income to pay his own attorney, but also enough to pay for yours. You may also consider filing petitions in Family Court for child & spousal support. I also suggest that you schedule a free consultation with a Dutchess/Westchester Divorce attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Some lawyers under these circumstances will apply to the Court to force your Husband to pay counsel fees. It laregly depends on how much he makes, as the court will need to look at his income - after factoring in that he'll be paying child support - to see whether he not only has sufficient income to pay his own attorney, but also enough to pay for yours. You may also consider filing petitions in Family Court for child & spousal support. I also suggest that you schedule a free consultation with a Dutchess/Westchester Divorce attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Sunday, June 9, 2013
Custodial Parent Refusing Summer Vacation Dates
Q: I have notified my ex spouse of my intent to take my children for a week in the summer on a family vacation . I am not the custodial parent in the matter , and my stipulation states " Father is allowed one consecutive week during the summer for vacation . Father must notify mother in writing no later than April 1st " . So I did just that , sent my former spouse my week via certified mail. My ex never picked up the letter so I resent the letter again. During the last week of May, my ex notifies me that I cannot take my son on vacation that week and to choose a different week. My ex has first choice this year but is it reasonable to ask two months before the vacation to reschedule? especially since she did not pick up the letter before?
A: David's Answer: The problem may stem from the inadequate prior agreement. The onus should not simply be on you to notify her of your dates - especially when she has 1st choice. Perhaps it's time to modify the agreement to require her to have a deadline to notify you in years when it her 1st choice to avoid this cropping up in the future. That said, I suggest that you schedule a free consultation with a Westchester Child Custody attorney for a full assessment. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Tuesday, June 4, 2013
Can a non-custodial parent be emancipated from their child?If so, does he still have to pay Child Support for child he doesnt se
Q: Non-custodial parent has attempted to see child over 10 yrs. Throughout the years he has recieved run around from courts & mom as to what he must do to possibly see child. He even went to therapy &social worker stated he complied. Then child was to be seen. But mom stated her schedule didnt allow it &mom stated she wants dad to seedifferent social worker& child doesn't want to see him. .Etc.This was the last set of excuses because now child is older and has been severly brainwashed by mom. Although true because he never was able to develop a relationship due to alienation. His daughter is 15 and god knows what mom has told her. So father wants to know can he emancipate child since he has not seen her? He pay CS religiously. He had enough of this that he gave up his rights 3yrs ago.
A: David's Answer: Preliminarily, I'm not sure what you mean by "he gave up his rights 3 years ago" as there's no such thing other than in the context of foster care. Perhaps you mean the father just gave up pursuing visitation. In any event, emancipation is a possibility, but the main issue here is that the refusal to visit must be proven to be no fault whatsoever of the father - i.e., the refusal must be completely unjustified. It's a relatively tough burden to meet. That said, for a full assessment, you're best advised to schedule a consultation with a Dutchess/Westchester Child Support attorney. -- David Bliven, Westchester Family Law Attorney (www.blivenlaw.net)
A: David's Answer: Preliminarily, I'm not sure what you mean by "he gave up his rights 3 years ago" as there's no such thing other than in the context of foster care. Perhaps you mean the father just gave up pursuing visitation. In any event, emancipation is a possibility, but the main issue here is that the refusal to visit must be proven to be no fault whatsoever of the father - i.e., the refusal must be completely unjustified. It's a relatively tough burden to meet. That said, for a full assessment, you're best advised to schedule a consultation with a Dutchess/Westchester Child Support attorney. -- David Bliven, Westchester Family Law Attorney (www.blivenlaw.net)
In NYS if a judge is showing clear bias toward the mother, overlooking undenialble proof of neglect & abuse, wat can be done?
Q: The mother had ensured over 11years of horiffic abuse, as did the children, the father lives in a 1BDRM, and remarried a female with a 4 yr old that knowingly beats up the children, and fathered a newborn just months ago. The kids are noticeably safe & happy with their mother, yet the father has family members in CPS, the sheriffs dept, in addition to the courts. The mother has undeniably evident proof of abuse & neglect of her 3 small children, yet the judge willingly overlooks every petition & motion, all based upon LIES spoken under oath by the father, that can all be proven untrue, however the judge bases every decision in favor of the father. The law guardian does nothing. The babies are 2 & oldest is 5 & is severely manipulated.
*PLEASE HELP SAVE THIS LOVING MOTHER & HER CHILDREN*
A: David's Answer: When you say the Judge is showing "bias toward the mother," I assume you mean the Judge is against the mother. That said, you should do what you can to get legally-admissible proof of the abuse or neglect, and then push the case towards a trial. Ultimately you can seek to appeal any interim orders which go against you. That said, I highly advise that you schedule a consultation with a Dutchess/Westchester Child Custody attorney. -- David Bliven, Westchester Family Law Attorney (www.blivenlaw.net)
*PLEASE HELP SAVE THIS LOVING MOTHER & HER CHILDREN*
A: David's Answer: When you say the Judge is showing "bias toward the mother," I assume you mean the Judge is against the mother. That said, you should do what you can to get legally-admissible proof of the abuse or neglect, and then push the case towards a trial. Ultimately you can seek to appeal any interim orders which go against you. That said, I highly advise that you schedule a consultation with a Dutchess/Westchester Child Custody attorney. -- David Bliven, Westchester Family Law Attorney (www.blivenlaw.net)
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