Can a downward modification petition adjust support that is owed and not paid? Or only when a violation petition is heard?

Q:  Three weeks ago, my son's father filed a downward modification support petition in an adjoining county where I live temporarily. My petition predates it, for a violation since he was not paying at all before I moved. Will he be able to get what he hasn't paid "downward modified" with his petition or will he have to wait until the violation petition is heard to get the "arrears" modified?


A:  David's Answer:  He can potentially get the arrears adjusted going back to the date of his petition. Any prior arrears cannot be reduced or vacated except in egregious circumstances (which is a standard very rarely applied). Schedule a consult with a Child Support lawyer in your area.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

I initially filed petition for child support in 2003. The NCP could not be served because he moved and I did not know his addre

Q:  I did not know his address. The case remained opened until child services located him in July 2008. the NCP was served and court date was in March 2009. The magistrate's child support order for $65 was ordered from July 2008. Now my question is . Did the magistrate's child support order commenced as of July 2008 because that's when the NCP was served? What about the previous five years? Is the NCP not liable because he was not served until 2008? Is there anything I can do now for 2003 to 2008. He was not served simply be cause I did not have an address . I could not locate the NCP but that was not my fault.


A:  David's Answer:  At this point, it depends on what the order states. If you had wanted retro back to the original filing date, you would've needed to have requested same at the time of the '09 hearing. If you did not do so & the order does not provide for same, you are most likely precluded from re-litigating the issue 5 years after-the-fact. That said, you can always try filing a motion to renew/reargue the original order - it is discretionary with the Magistrate to either accept it for filing or not (usually such applications must be filed within 30 days of the original order). Schedule a consult with a Child Support lawyer in your area.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

My sons dad retired end of 2013 and says he no longer has to pay his support. His 2 boys get SS (autism). Is this true?

Q:  They were receiving SS benefits plus child support weekly. They received an increase in SS and their dad says this makes up for his child support payments. He receives SS and a pension from NY state and has the boys on his lifetime health insurance.


A:  David's Answer:  It is well-established law in NY that social security benefits for the children do NOT take the place of child support. Moreover, voluntary retirement in the face of an ongoing support order does not generally entitle that person to a reduction in the payments. Schedule a consult with a Dutchess/Westchester Child Support lawyer for a full assessment.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net) 

Going through court for child support, please help

Q:  My child gets medicaid and the father has his own personal health insurance. He is trying to get the amount it would cost him a month taken off of the amount hes supposed to be paying based on income. I refused the proposal they set a temp order in the mean time. Doesnt he have to put him on his insurance because hes on medicaid? And can he really pay a lower amount then what the guidelines say? ??


A:  David's Answer:  Usually an additional cost to cover the child on medical insurance is split on a pro-rata basis. As such, it's not that the entire amount would be taken off the basic order - instead, only the portion you would otherwise need to pay would be subtracted. In other words, if the comparison between your income & his is 80%-20%, then only 20% of the additional premium would be subtracted off the order. Regardless, he need to prove what that additional amount is. Schedule a consult with a child support lawyer in your area.   -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

I am acting pro se in family court. what format do i use with a cplr 3122 objection? responding to new petition

Q:  I won judgment for ex to pay 1/2 college. presently in court for enforcement. his new lawyer's new petition demands discovery on items already ruled upon. I am writing an objection CPLR 3122 and questioning format on how to write this to new attorney. New Attorney has filed downward mod petition and asking for financial papers. Last downward mod was ruled on 8-9-12. Believe it is stall tactic and taking advantage of my pro se status. any info greatly appreciated. ty


A:  David's Answer:  The format could be as simple as a letter in which you specify your objections. That said, I think the new attorney would be able to ask for some disclosure pre-dating the last modification ruling, unless the Magistrate made a "findings of fact" setting forth what your income & expenses were on the last case. Schedule a consult with a Westchester Family Law attorney for a full assessment.  -- David Bliven, Westchester Child Support attorney (www.blivenlaw.net)

Paternity and child support motion filed against me from a brief affair 4 years ago.

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)

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)