Should I go today for the cheek swab test called by the police? what is the best I can say to the police and my wife?

Q:  me and my wife married for ten years with two kids. my wife recently had an affair with a male co-worker. she wants a divorce, running into little unhappy argument, nothing physical. she call the police and probably told them she had unwilling sex with me. which I deny. police took bed sheet last night, and want me to return to station today for a cheek swab test. my wife told me she did not go to the hospital for her dna test. she like me continue to be a good father to the kids and use this case to hold me sign the divorce paper and do not want to have me in any trouble.

Additional information

 

police did not call me again, I did not went for sample. my wife says did not go for medical or dna sample test. she will not want to see me in trouble, it will not be good for the kids. she just want to get a divorce. today, my wife just told me she got an order of protection for her only, not for this kids, she want me to remain in home and look after kids. the police is now ready to serve my paper. not received yet.
it just prove I am a great dad for kids, what would the cop think about the sex case?
appearantly, would any mom likely choose to leave the house and leave the kids for dad to take care. Does it prove the "rape" thing is not credible? This is just an easy reason for her to find in order to free herself. Would you give your kids to be looked after by someone mom accuse him to be a crimial of sexual assualt.
Does she still have a criminal case possibility?


A:  David's Answer: If the police are contacting you, you're best advised to re-post this query in the Practice Area of "Criminal." You should also call a criminal defense attorney immediately. That said, as a divorce case is imminent, you should call a Westchester Divorce attorney to schedule a consultation for a full assessment.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

What happens if a non-custodial father has no income and can prove this to a judge

Q:  What happens if a non-custodial father has no income and can prove this to a judge when paternity is established for a child? He shows up in a the legal time frame. He lives with his wife a different woman that earns a lot of money.


A:  David's Answer:  The Magistrate can impute income to the father based on work experience and/or education, or may impute the portion of the support his wife is providing for him. Either way, he's probably better off just getting a job. --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Can a US court establish paternity by default

Q:  Can a US court establish paternity by default and order a United States citizen man to pay child support and suspend his US passport for not paying child support? The courts cannot locate this person, because he does not have a US mailing address and cannot garnish his wages, because they cannot locate any assets in the United States. He had sex with this woman in the United States but the mother suspects that he moved to Japan, before her child is born.


A:  David's Answer:  Yes, but I would wonder how the father was served with the petition if his whereabouts are unknown. More facts would be necessary in order to definitively answer this post.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

What happens if a father files a paternity suit in the United States against a pregnant women

Q:  What happens if a father files a paternity suit in the United States against a pregnant women, before her child is born? The man can prove to the court he got this woman pregnant but cannot prove that she gave birth to a child or got abortion. A medical doctor is willing to testify that she was pregnant but does not know if she gave birth or got an abortion.


A:  David's Answer:  The Court would be extremely unlikely to order a DNA test on a fetus. Thus, such a petition would generally need to await the child's birth.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

I have a question about Parental Alienation. I recently received an e-mail from my 15 year old child.

Q: That e-mail states that two therapists have told him its unhealthy for him to have a relationship with me. Followed by an e-mail from his father that basically stated the same thing. The last transcript from when we were in court a year ago, the therapist told his father that is was extremely important that our son have a relationship with me and that the father was to encourage one. That also supported by the child's attorney. As far as I know, the child is not seeing any therapists because the one that was in the court case says he hasn't seen our son since our last session. I had also asked 9 months ago the father and his atty if the child was seeing one, no response. The father is unilaterally going against the court, the child's atty and the therapist on record. Is there a case?

Additional information

 

We had evals done, and I would assume if there was an issue, the courts would have taken away my rights and his atty would have certainly demanded that, not do the opposite and try and get a reconciliation. His own atty stated in court that 'they hoped for a reconciliation'. Clearly there is no way to do that when the child is being told I am unhealthy for him. I did file violation papers, but these e-mails came after. I waiting to see if the court orders or not. Knowing that I may have lost my son until he is older, are there any repercussions I can ask the court for? There is a visitation order, but I was asked to give our son time to come around. Which I did, though periodically trying to maintain relevance and a connection with e-mails and gifts. My son rarely responds to my e-mails and when he does, they are very hostile. I haven't seen him in about two years now. No, I am not incarcerated in any way. I have a great job, engaged and stepmom to two teens.


A:  David's Answer:  Let's put it this way - you will either need to choose to enforce your visitation rights - or not. If you allow the father to co-op the child into refusing visitation, then the Court will be all the less sympathetic toward you if you allow the situation to persist & then file a case a year (or later) from now. Your should additionally consider filing a petition to terminate child support based on an unjustified refusal to visit. For a full assessment, schedule a consultation with a Westchester Child Custody attorney.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

I want to evict my 22-year old son from my home. Do I have any legal standing?

Q:  We recently filed an order of protection against him. He cannot say or act violent toward anyone in the home. He is disrespectful, does not work and does not follow the household rules. We are in the process of having him served with a 30 day Notice to Terminate.


A:  David's Answer:  If there is no basis to have him removed on the family offense case (though this would need to be assessed), then you would need to re-post this question in the "Landlord-Tenant" practice area.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Is there any way for a 17 year old to move out without having to go through the emancipation process?

Q:  I want to move in with a family that I know but I wasn't sure if there were any way to do it without a big legal fuss from my parents. I just don't want to be in this house anymore because of tension and it's very stressful to me.


A:  David's Answer:  Under New York law, you are still a minor until age 18. If you move out without your parent's consent beforehand, you risk having them file a PINS petition. --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

What do i right in a report to amended a cps report from being indicated to unfounded

Q:  Cps was called on me by the school stating I get drink and get out of control because i do not take my medicine.,lithium. I do take medicine,the report was false. Also I have been accused of giving my daughter a black eye when i was trying to take her electronic devices away. I never hit my daughter. I have a police report stating I was the victim.


A:  David's Answer:  You should get a letter from your therapist confirming you're taking your medicine. Furthermore, the letter you were provided by CPS stating the report was indicated also provides the address you need to write to (within 90 days of the date of the letter) to request an administrative review. You should also schedule a consultation with a Family Law attorney in your area, particularly one with experience in CPS matters. --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Looking for a pro bono lawyer for my family court case. Can someone please help?

Q:  I have court on October 4, 2013. It was for modification. But now it is for modification and violation. The mother of my child keeps lying in court and the judge does not listen to my side of the story. Can someone please help me as I can't not afford lawyer and don't want to wait for the last minute for the courts to appoint one for me because I have been screw that way also.


A:  David's Answer:  There are extremely few lawyers who accept pro bono cases - most of them work for law school clinics or similar non-profit organizations. You can either ask the court to assign you a free lawyer, or shop around & see if you can retain an attorney on a sliding scale.  --  David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

I was served with papers.to appear in family court in 5 days, I cannot attend on short notice, what can I do?

Q:  I have been out of work and have no income I receive Medicaid, SNAP AND HEAP and am in deep on child support I have a great relationship with my sons who are 22 and 20 How do I get the appearance rescheduled?

Additional information

 

My wife works and I care for our kids 2 year old twins and a 3 year old she cannot get day off

A:  David's Answer:  The question becomes: if you're out of work, why can't you attend court? Generally the "press of other business" is not a legal reason for not showing up to court. You can try writing the court a letter & while sometimes that works, if it doesn't then the court may proceed in your absence. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Is there any legal recourse I can take against an ex that is harassing me and my family by phone and text?

Q:  My ex keeps coming up with new things she believes I owe her and I receive threatening texts almost every day. She even goes as far as calling my parents. When does this become against the law?


A:  David's Answer:  File for an order of protection in the Family Court.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Want custody of my grandchild

Q:  Child protective services took my granddaughter from hospital when we petitioned child protective services they showed to my home with themselves n six police officto telle they don't no where my granddaughter is n then sent two detectives two hours later to confirm they don't no where as she is n insinuate my daughter has her they lost my grandchild and court is the end of this month


A:  David's Answer:  You should file a petition for custody. You will need to serve CPS as well as the mother & father with the summons & petition. For a full assessment, schedule a consultation with a Westchester Family Law attorney.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

I requested a court appointed attorney for my upcoming visitation and custody modification hearing.

Q:  I was appointed an attorney a few years ago when I initially filed. Now that a couple of years of have passed, the judge requested I fill out a financial affidavit. (my income has only change a few thousand) Do i need to provide my ex and the child attorney a copy of my financial affidavit or can I send them only a copy of the letter to judge without my financial affidavit? Thank you in advance.


A:  David's Answer:  Unless you have something to hide, you should provide all correspondence (& attachments) submitted to the Judge to the other side.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

If someone had a restraining order put on them in family court and they are found guilty of DV can the charge be dropped?

Q: After being found guilty in a family court hearing of DV and a restraining order is finalized is it possible to have any charges on your record dropped oif the victim wanted them dropped or do those charges stay on the person's record forever? The person was never arrested for this incident.


A:  David's Answer:  There is no such thing that I'm aware of. I suppose one could file a motion to vacate the finding, but it may also subject the other party to sanctions and/or a perjury charge. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Have an order of protection from Family Court against my husband, I recently received a letter from him. Will he be charged?

Q:  This order is from a domestic violence act which refrains him from much much more. This said I recently received a letter from him asking me for some documents he needs to resolve another case in Canada. He also stated that he would proceed with our divorce which has been pending since November '2012 otherwise he will not take any action. This in my eyes is a violation of the order I have, will he be charged? If not, I might be aggravating him and then he might not follow through with signing the divorce documents. Looking for some guidance on how severe his punishment would be if any? Thanks


A:  David's Answer:  The question is whether the order of protection includes a "no contact" provision. If yes, and he was personally served with a copy of the order, then this would appear to be a technical violation of the order. That said, because the substance of the letter was not intended t harass you, the Judge would likely let him off with a warning (perhaps after spending a day in jail if a warrant needs to be issued).   -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

NY-Child Support question

Q: Divorced since '04. 17 y.o. twins. Modification of child support possibly, if I agree. Support by ex (who has moved to CA and remarried) is supposed to be moved up from $1200/mo. to $1700/mo. as per agmt drawn up 10/09 and I am supposed to give ex half of apt where children and I reside. He is self-employed , I am admin asst. Tough times for me with money and increased credit card balances. He offers to let me stay and I let him keep payments at $1200. He credits me (as he has in past) toward sale of apt. It stands I give him $50K as past agmts. He will now allow me a credit of another $12,000 or so. It seems fair, but I struggle day to day. He is in child support enforcement. Can he and I write up agmt ourselves and have it notarized? Is this legal or do I need a lawyer to do?


A: There is particular language you would need included to have the agreement be enforceable. Thus, it is best that you have an attorney do the modification agreement. Moreover, assuming it was incorporated into your divorce judgment, you would also need the judgment modified as well.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

How does one ensure that the attorney for the children does their due diligence in representing the children?

Q:  I feel that the attorney for my children is not representing them with due diligence. I do not believe this person can represent best interest without investigating the children’s complete circumstance and knowing what is true or untrue in the case that will decide their futures. To my knowledge this attorney has made no effort to verify any allegations including illegal activity, forgery, & perjury, manipulation, fear mongering & parental alienation.  I feel that this attorney is biased to the children remaining in their current location overlooking the fact that my spouse does not reside there as claimed. This means that the children are being raised by a third party instead of their parents. This attorney seems perfectly comfortable relying on affidavits and evaluations, making court appearances & collecting fees rather then exhorting any effort to truly determine what is in the children’s best interest and how best to represent them.  I have read Adopting Law Guardian Standards and The Chief Judge Clarifies the Role of Attorneys for Children NYSBA Family Law Review… but they all seem vague. Any advice would be greatly appreciated!


A: Part of your confusion stems from a misunderstanding of the role of the Attorney for the Children. The Attorney is NOT an investigator, and thus has no duty to "investigate the facts." The Attorney is there to represent his/her clients, and thus as best as s/he is able to s/he should ascertain their position on the particular issues before the Court. Your attorney - in collaboration with you - should be gathering evidence and attempting to persuade both the Judge & the Attorney for the Child to come around to your perspective.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Can I sue my ex-spouse for lying under oath (perjury) re: abuse in our child custody trial?

Q: The statements are completely false and were intentional, can be proven, and has caused damage in our case.. My son has been taken from me temporarily and we are in a heated trial that is bankrupting me!.. if so, is there a statute of limitation.. I was told that this is not defamation or slander but perjury..


A: First, you should concentrate on winning the custody trial by using the evidence you've obtained. There are generally civil tort claims you can pursue, including abuse of process. You are best advised to consult a civil litigation lawyer on such a claim.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

How do I obtain a copy of my forensic evaluation reports?

Q: The judge ordered that a report be submitted to the court. The court sent copies to the attorneys. My attorney has quickly read it to me but says that they are not allowed to give me a copy. Nowhere in the order does it state that I am not allowed a copy and I have found no law that disallows me from having the report. The order did state that neither attorney shall have contact with the evaluator except for payment issues. it did not state that I may not request a copy although I believe he would not give it. I did go to the court to see if it was in my records and was told that it is in the judges records and they would not give me a copy. What should I do to obtain these reports? Thanks very much for any advice!


A: To my knowledge, It is the current policy of the Westchester courts not to allow the parties to have a copy of the report. That said, unless there is a specific order to the contrary, your attorney should allow you to read the report in his/her office.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

How do I get emancipated at 17 in New York

Q:  How do I go about getting emancipated at 17 in order to be declared a legal adult and get out of my parents house?


A:  David's Answer:  There is no specific application or petition to "emancipate" yourself. Until you are 18, you are still (legally-speaking) a child who must be governed by your parents. Understand that if you leave the house against your parents wishes, you forfeit your ability to request any financial support from them.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)