Q: How do you file an Order to Show Cause pro se in family court? The clerk told me that only a lawyer can file this. The clerk also suggested I file a writ of habeas corpus but I am not sure if that would be the right petition. My ex has denied visitation for over a month now.
A: David's Answer: The Clerk is simply explaining that they are not necessarily obligated to draft an order to show cause for you. Generally they do, but otherwise you can simply file a violation petition, get a summons & have a court date in 2-4 weeks. Frankly, even if you file an order to show cause, you're not likely to get an earlier court date anyway. Also, no need to file a habeas corpus petition - that is usually only done when you're the custodial parent & the other parent kidnaps the child. A violation petition is all you need to protect your rights. That said, I'd advise you to schedule a consultation with a Westchester Family Law Attorney for a full assessment. -- 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.
Thursday, January 30, 2014
How do i request a new Law Guardian for my son?
Q: I am a single mother, and for the last 3 years it has been a battle in family court with my son's grandmother on his father's side and my son's father, niether one really bother with my child, the court petitions are a bullying tactic. Now this has been going on for 3 years and for 3 years the law guardian has treated me rudely, unprofessionally and has never had my son's best interset in mind. She has ment with my son a total of once in the past 3 years..she currently had a warrent for my arrest issued because she wants to question my 3 year old privately, and when i asked what was the line of questioning she told me it was "none of your business." she has never ment with the father or this grandmother. she has even been heard talking about her dislike for me in public. What do i do:?
A: David's Answer: You can file a motion to have the law guardian removed. That said, such motions rarely succeed. Principally, the Law Guardian, while s/he should theoretically "be nice" and professional toward you, is the child's attorney (thus owing no duty toward you). Moreover, s/he would be correct in not sharing his/her questions with you, just as it would be inappropriate for one of the attorneys to share your attorney's interview notes with you. Speak with a Family Law Attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: You can file a motion to have the law guardian removed. That said, such motions rarely succeed. Principally, the Law Guardian, while s/he should theoretically "be nice" and professional toward you, is the child's attorney (thus owing no duty toward you). Moreover, s/he would be correct in not sharing his/her questions with you, just as it would be inappropriate for one of the attorneys to share your attorney's interview notes with you. Speak with a Family Law Attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Sunday, January 26, 2014
Boys father never sees them i have sole legal physical custody of my boys. my finacee wants to adopt them
Q: My boys father has never really been in there life has never seen them in the last almost 5 years. i have sole legal physical legal custody of my boys. Can i get his rights signed off and my fiancee adopt them. if so how much an how do you do it?
A: David's Answer: You would seem to have good grounds for an adoption. Either the biological father can sign a surrender, or you can have his rights terminated by the court on the basis of abandonment. Speak to a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: You would seem to have good grounds for an adoption. Either the biological father can sign a surrender, or you can have his rights terminated by the court on the basis of abandonment. Speak to a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Do I need to be married in order for my boyfriend to adopt my daughter?
Q: My daughter is 7 years old. I have been with my boyfriend for 5 years and we have a child together. My daughters father has been very sporadic with his visits and in the last month has been emotionally abusing her. She has been in counseling (because of this situation) and when he found out he was enraged. He told me and her that she is not to speak to anyone about him and demanded that she be taken out immediately.. He has now said that he spoke to his lawyer and wants to know if he signs away his rights will my boyfriend adopt her. My bf treats my daughter like his own and she tells me quite often she wishes he was her "real" dad. Do I have to be married in order for this to happen? We plan on getting married in the near future, and If we do have to be married we will immediately.
A: David's Answer: No, you do not need to be married. The biological father can execute a surrender to allow the adoption to proceed. Speak to a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: No, you do not need to be married. The biological father can execute a surrender to allow the adoption to proceed. Speak to a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
It petitioner has legal aide and respond is going to be assigned 18b lawyer can they file a cross suit at same hearing?
Q: The Court date is scheduled, respondent seeks to file a cross suit, can it be filed prior to hearing since 18b lawyer will not be assigned until the hearing? Also can it be heard at the same hearing since it is a cross suit/summons? Or will it be a different case all together? Can the same lawyer be used for the cross suit/summons?
A: David's Answer: Generally the respondent in a Family Court matter can file a counter-petition. However, it must be filed & served more than 8 days before the court date to be heard the same day. While considered a separate case, it will generally be heard at the same day & time as the other petition. And yes, the same attorney can represent you on both cases. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Generally the respondent in a Family Court matter can file a counter-petition. However, it must be filed & served more than 8 days before the court date to be heard the same day. While considered a separate case, it will generally be heard at the same day & time as the other petition. And yes, the same attorney can represent you on both cases. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Would myself and children be able to accompany my husband whose father has filed
Q: he is at the point where a dna is requested. we got married three years ago.
A: David's Answer: Accompany them where? To the test? Or is this an immigration question? If this is an immigration question, re-post under the correct category. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: Accompany them where? To the test? Or is this an immigration question? If this is an immigration question, re-post under the correct category. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can my husband sell or tell people that my house is for sale? He moved out in October. Everything is in both names.
Q: We own a 2 family & my daughter & her family rent the 2 fl. He told them that unless I allow him to come back within a wk he was selling the house. & that they are to start paying him the rent money or else they can move. Can he do that? He has also been driving by the house anywhere between 15/20 times a day. My neighbors are starting to feel uneasy as are my kids when I'm home alone. I am on disability and I can't afford to get a lawyer. I don't know what to do.
A: David's Answer: He cannot sell the marital residence without getting approval of the divorce court. If you believe he's stalking out, consider filing a police report and/or filing for an order of protection. Consult a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: He cannot sell the marital residence without getting approval of the divorce court. If you believe he's stalking out, consider filing a police report and/or filing for an order of protection. Consult a Family Law attorney in your area. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
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