Q: I live in NY State. Had a brief extramarital affair with a single young woman 4 years ago. She said she got pregnant and its my child. Never heard from her again. She then married, settled down with another man who is the only father the boy ever knew, and he calls him Dad since birth. Some months ago she contacted me to sign and give up my parental rights so her husband can adopt the boy. I did so thinking it was the end of it. But a few weeks ago, got papers asking for paternity and child support from Family Court. She said marriage is in trouble and this guy changed his mind. I make more $$ than both of them combined. I plan to challenge this using equitable estoppel defense against paternity. There seems to be plenty of case law support mostly issued by NY Appellate Court. Any advice?
A: David's Answer: Yes, the doctrine is arguably applicable. The issue may be that some Judges feel the doctrine of equitable estoppel cannot be used as a shield to disclaim paternity. That said, you need to employ an attorney as you'd need to file a motion on the issue so as to prevent the ordering of a DNA test on the 1st court date. Schedule a consult with a Family Law attorney in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
David Bliven is a former Family Court prosecutor who handles the full range of Divorce and Family Law cases, including divorce, separation, custody/visitation, child support and paternity matters. He’s ranked in the top 5% of NYC Metro Family Law Attorneys, and has been published in numerous periodicals. He is the author of 6 Family Law books. He practices primarily in Westchester (White Plains and vicinity) and the Bronx (Riverdale and vicinity). His website is: www.blivenlaw.net.
Wednesday, March 5, 2014
What factors determine how quickly you get a cort date in family court?
Q: I am simply only asking out of curiosity. I recently filed a petition for modification for a visitation/custody order/i wrote several concerning reasons as to why i believe they need more time w me as their father. I filed 2 days ago and today got the summonds to serve my ex with a court date in 2 weeks. Not that im mad but im surprised how quickly this processed and how soon the court date is. Does anyone review these forms and look at pressing concerns over other petitions or is it just a first come first serve thing? I did write a 4 page statement of dates and many issues tht have been going on. And no lawyer no way i could even afford a cheap one.
A: David's Answer: The clerk's office will tend to prioritize emergency filings. Other than that, it's a first-come-first-serve basis. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
Comment on the Rachel Canning case
In the news today is a story about an 18-year-old suing her parents for child support in New Jersey. http://www.today.com/moms/judge-denies-teens-attempt-sue-parents-money-2D79321954.
She was suing for emergency support after claiming her parents kicked her out. The Judge denied her request for emergency support and adjourned the matter until April. According to the NJ Dept. of Human Services website (http://www.njchildsupport.org/Services-Programs/Custodial-Parents/Emancipation.aspx), a child may be emancipated at age 18 for child support purposes, but this may be extended until 21 (or apparently longer) if the child is still in college or otherwise not financially self-sufficient.
New York has a slightly different rule, in which emancipation is presumptively age 21 unless emancipated sooner. Thus, in New Jersey, it appears to place the burden more on the "child" claiming support beyond age 18, while in New York the burden of proving the case is on the parent(s) attempting to get out of paying support.
In my mind, New York has the correct approach. Parents can still claim a child has emancipated themselves by virtue of his/her conduct (such as unjustifiably moving out), but the burden is on them to prove the case.
It is all the more important to continue financial support to a child if s/he is unemployed and has looked for a job but cannot find one. According to the latest statistics (http://www.bls.gov/web/empsit/cpseea10.htm), approximately 1 out of 4 teens are completely unemployed (defined as actively seeking a job, but unable to find one). This does not even count the number of teens who are working part-time but want (or need) full-time jobs, or those who are underemployed (working a job significantly below his/her skill-set or educational level).
While it may be that Ms Canning is an undeserving brat, it may also be that her claims are true and that her parents abused her in response to school suspension. One hopes the Judge will ultimately hear both sides fairly at a trial and justice will be done.
She was suing for emergency support after claiming her parents kicked her out. The Judge denied her request for emergency support and adjourned the matter until April. According to the NJ Dept. of Human Services website (http://www.njchildsupport.org/Services-Programs/Custodial-Parents/Emancipation.aspx), a child may be emancipated at age 18 for child support purposes, but this may be extended until 21 (or apparently longer) if the child is still in college or otherwise not financially self-sufficient.
New York has a slightly different rule, in which emancipation is presumptively age 21 unless emancipated sooner. Thus, in New Jersey, it appears to place the burden more on the "child" claiming support beyond age 18, while in New York the burden of proving the case is on the parent(s) attempting to get out of paying support.
In my mind, New York has the correct approach. Parents can still claim a child has emancipated themselves by virtue of his/her conduct (such as unjustifiably moving out), but the burden is on them to prove the case.
It is all the more important to continue financial support to a child if s/he is unemployed and has looked for a job but cannot find one. According to the latest statistics (http://www.bls.gov/web/empsit/cpseea10.htm), approximately 1 out of 4 teens are completely unemployed (defined as actively seeking a job, but unable to find one). This does not even count the number of teens who are working part-time but want (or need) full-time jobs, or those who are underemployed (working a job significantly below his/her skill-set or educational level).
While it may be that Ms Canning is an undeserving brat, it may also be that her claims are true and that her parents abused her in response to school suspension. One hopes the Judge will ultimately hear both sides fairly at a trial and justice will be done.
Wednesday, February 26, 2014
Our court order states my ex and I are to split the medical premium 50/50 for my son. How do we calculate that ?
Q: My husband has $330 deducted from his pay each month pre-tax, so the actual cost to him is approx $250. Am I obligated to pay him 50% of the gross premium or $165, or 50% of the actual cost after taxes which would result in $125?
A: David's Answer: The issue is the actual cost to cover your son in addition to his other costs. It's that number you would be dividing by 2. Schedule a consult with a child support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
A: David's Answer: The issue is the actual cost to cover your son in addition to his other costs. It's that number you would be dividing by 2. Schedule a consult with a child support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
Legally divorced since 2012 but still living in the same house with my ex.. can I get child support from him ?
Q: For financial reason I am unable to find a place on my own ... I am still living in same house as my ex spouse but never ask for child support . We split all the bills ..But I would like to know if legally I can still collect child support so that my kids and I can move out move forward ..My divorced was finalize in October of 2012.
Thank you
Ligmy
A: David's Answer: The problem is that generally child support is only awarded to the custodial parent. If you are both residing in the same household, and the bills are being paid, then technically you're both the "custodial parent" of the children. What did the divorce decree say about custody & support? You're best advised to schedule a consult with a Putnum/Westchester Child Support lawyer. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
Thank you
Ligmy
A: David's Answer: The problem is that generally child support is only awarded to the custodial parent. If you are both residing in the same household, and the bills are being paid, then technically you're both the "custodial parent" of the children. What did the divorce decree say about custody & support? You're best advised to schedule a consult with a Putnum/Westchester Child Support lawyer. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
I am trying to modify my child support
Q: My ex husband pays 50.00 per month for our two children, aged 9 and 5, He has an 18 year old son from a previous relationship that gets over 200.00 per month, and the son is in the army. he has not called or seen the children for months, and changed jobs without notifying support. He earns much more than i and i don't understand why the first child gets so much more, when his mother earns more than his father, and he gets paid from the army.
A: David's Answer: It may be that the father is pulling a fraud - saying he pays support when he really doesn't. You can try to argue in your case that the military child is emancipated & therefore any payments the father makes for that child are voluntary. If successful, he would then not get to subtract that order before the court calculates support for your children. Speak to a child support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
A: David's Answer: It may be that the father is pulling a fraud - saying he pays support when he really doesn't. You can try to argue in your case that the military child is emancipated & therefore any payments the father makes for that child are voluntary. If successful, he would then not get to subtract that order before the court calculates support for your children. Speak to a child support lawyer in your area. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
Monday, February 24, 2014
How can i prove money orders were sent for child support?
Q: I have my first child support court date coming up soon. We never had any legal arrangment and were never married. I always gave her a good amount weekly that she was fine with until recently. I have several money order recipts that are from after the date she filed the petition. These recipts clearly are just small stubs with numbers on them. How can i prove to the court that they were written out to my ex and i wrote child support on them? Can the court find out by tracking the number or is that my responsibility ? I know i can request a photo copy of the original money order but then I'd have to mail in the original recipt and dont know if that would count against me in court to not have the original copy. Just want to make sure i get credit for all these.
A: David's Answer: First, you only get credit for payments dating back to her filing date anyway. Second, see if she'll agree to the amounts in court once you produce the money order receipts you have. If she doesn't, then seek an adjournment to get the receipts with the memo portion. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
A: David's Answer: First, you only get credit for payments dating back to her filing date anyway. Second, see if she'll agree to the amounts in court once you produce the money order receipts you have. If she doesn't, then seek an adjournment to get the receipts with the memo portion. -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)
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