Wednesday, July 31, 2013

Comment on Dwayne Wade custody/visitation case

A story was posted today about NBA star Dwayne Wade's custody & visitation case against his ex-wife (

The story states, in essence, that Wade lost a motion to suspend visitation for his ex-wife to see their 2 children.  The motion, filed by Wade's lawyer, alleged his ex-wife has been exhibiting bizarre behavior, dating back to the parties' divorce proceedings.

While certainly I don't know all the particulars, it would appear to me that Wade acted too late.  If he had legitimate concerns about the mother's psychological fitness, he needed to have raised them in the divorce proceedings.  Instead, it appears he waited, allowed those proceedings to conclude, and then filed this post-judgment application.

The lesson appears to be that if the custodial parent believes the non-custodial parent has psychological issues so great that s/he shouldn't visit the child(ren), the custodial parent must bring these concerns to the Court's attention immediately.

Implicitly, if the custodial parent fails to act immediately under these circumstances, s/he is saying the concern may be present, but no imminent risk appears to exist.  --  David Bliven, Bronx Child Custody attorney (

Saturday, July 27, 2013

My daughters is visiting her dad out of state and is now telling me not to pick her up because he wants her for August as well.

Q:  We made this agreement verbally to split the summer a month each, July with him, August with me. We have a court ordered visitation agreement that does not mention the summer at all.
I agreed to not let him pay child support the month of July when he had her, he also decided not to pay half of another month as well. When asked about the extra child support was when he threatened to keep her for august.

A:  David's Answer:  Assuming the prior order was done in New York, you should file an order to show cause & petition requesting an order that he return the child (a/k/a "writ of habeus corpus"). You can then accompany the police in his state with the signed order to retrieve the child. For a full assessment, schedule a consultation with a NYC Child Custody attorney.  -- David Bliven, Bronx Child Custody attorney (

My ex has custody of our child and she is currently pregnant and has been physically abused by her boyfriend.

Q:  She went back to her boyfriend, after he kicked her and our baby out in the middle of a heat wave, and physically abused her. Prior to going back to him, she said she was going to move to the Dominican Republic and give the baby to me. I feel my son is in imminent danger now that she is back with her boyfriend. Her boyfriend also called to threaten harm to me and my son before she went back to him. I went to court to get an OOP against this man on behalf of my child and was told that because she has custody and I only have visitation, I couldn't file an OOP. I called Child Services who is currently investigating, but I want my son out of a dangerous situation immediately. What can I do?

A:  David's Answer:  This is correct - you cannot file for an order of protection against the boyfriend because you lack a famlial connection. That said, you can & should file a petition for modification of custody. For a full assessment, schedule a consultation with a Bronx Child Custody attorney.    -- David Bliven, Bronx Child Custody attorney (

What paperwork do I need in family court to get my son out of an imminently dangerous environment such as his mother's house?

Q:  My son's mother and I currently have a custody case that's pending. She got kicked out of her house last Wednesday during a heat wave with child, my son, and no baby provisions. What paper work do I need to expedite an earlier court appearance? I already called ACS but my son is in a dangerous environment because his mother went back to live with her husband

A:  David's Answer:  You need to file an order to show cause. In the motion, be prepared to corroborate as best as possible the allegations regarding her husband. Schedule a consultation with a NYC Child Custody lawyer for a full assessment.   -- David Bliven, Bronx Child Custody attorney (

Can a mother file for full custody and still receive child support?

Q:  My 7 year olds father assaulted me in front of our daughter and now I'm afraid (as she is afraid) of her own well being. I want to apply for full custody but I would like to know if she is still entitled to receive her support?

A:  David's Answer:  She is absolutely entitled to receive child support if you have custody, if that's what your question is. If you're talking about another form of support, you'd need to specify. In any event, you're best advised to schedule a consultation with a Bronx Child Custody attorney for a full assessment.  -- David Bliven, Bronx Child Custody attorney (

Can he petition for his child if he does not have custody.

Q:  My friend and his wife, divorced 4 years ago he signed that she get sole custody of the children. he now wants to petition for them can he do so without having custody.

A:  David's Answer:  When you say "petition for them" do you mean petition for a change of custody or an immigration petition? If an immigration petition, you'll need to re-post this question under that category. If a change-of-custody petition, then yes, he can always petition for a change, so long as he states what change of circumstances warrant a change of custody. Your friend is best advised to schedule a consultation with a Bronx Child Custody attorney.    -- David Bliven, Bronx Child Custody attorney (

Saturday, July 20, 2013

My ex and I have a 4 year old. Can I move out of the sate without legal repercussions?

Q:  Until recently, the father has been active and present in his child's life. At present we have no legal orders in place, however, there has been emotional and domestic violence (unreported, not sure if that is valid anymore). I am the primary care taker and am being treated for depression. In order to get emotional and financial support from family, I want to move to another state. I don't want to involve the courts, can I do this without notifying the father and/or getting the father's permission before hand? Do I have to file for custody? Also, if I were to petition for child support which state should this be done in (i.e., in NY or once we move)?

A:  David's Answer:  Bottom line - I'd advise strongly against moving out-of-state without the father's signed, notarized consent allowing you to do so. Even so, it's better to have such a letter drawn up by an attorney. It's best yet to file for custody & seek an order allowing you to relocate - if the father consents, then the case is made all the easier. Speak to a NYC Child Custody attorney for a full assessment. -- David Bliven, Bronx Child Custody attorney (

Wednesday, July 17, 2013

Does this mean I can get custody of my children?

Q:  When a custodial parent commits perjury that is material to a family matter, whereas the custodial parent committed perjury by her own admission and not by any third party allegation, she so demonstrates that she is unfit and no longer capable to remain as custodial parent, as these are exceptional circumstances and the court is required, if not mandated, to change custody of the minor children to further protect the children, in their best interests, from the affects of the perjurious parent (MATTER OF HRUSOVSKY v. Benjamin, 274 AD 2d 674 - NY: Appellate Div., 3rd Dept. 2000)

A:  David's Answer:  No, merely committing perjury would not, in itself, warrant a switch of custody. It certainly is a factor to be taken into account, but should be only one factor amongst many considered. For a full assessment, you should schedule a consultation with a NYC Child Custody attorney.   -- David Bliven, Bronx Child Custody attorney (

My daughters father won sole custody of my daughter but 9 moths ago he said he can no longer take care of her so he droped her m

Q:  how do i prevent him from getting her back?

A:  David's Answer:  File for custody. Document what he did with a letter to him certified mail, return receipt stating in substance that you're confirming he dropped the child off because he can no longer care for her and wants her to reside with you. For a full assessment, schedule a consultation with a Bronx Child Custody attorney.   -- David Bliven, Bronx Child Custody attorney (

Child endangerment. Why do courts allow it?

Q:  When I picked my son up Friday he had marks all over his face back legs and butt. I took him to the doctors and the doctor said it was abuse and to goto the police and they reported to cps. The police arrested the mothers husband and I have a order of protection prior against the mother to refrain from and when I went to family court to ask for a removal they only gave me another refrain from against the mothers husband and her, the local court gave me a stay away against the mothers husband for the child but why would the judge at family court not just remove the child? There was arrest in there house for abuse. Also the child was removed from her house before for her using drugs.

A:  David's Answer:  It is speculation at this point as to why the Judge didn't "remove the child," though it's possible that the Judge wanted to have the mother served & wanted to hear the mother's side of things before taking such a drastic step. That said, I've also seen Judges under such circumstances direct an "extended visit" to the non-custodial parent rather than direct an ex parte switch of custody. In any event, for a full assessment, you should schedule a consultation with a NYC Child Custody attorney.   -- David Bliven, Bronx Child Custody attorney (

Summer visitation. In pendente lite order the judge ordered 2 weeks for the non custodial parent which are not to be consecutive

Q:  Non consecutive parent already gets every other weekend,so now the two weeks he wants is which include my weekends and other 5 days of the week, and he wants to get his previous weekend and the weekend after as usual( coz children go to him every other weekends)
I think it's unfair coz this way he gets 4 weekends in a row and I don't get to spend weekends with my kids.
So my question is how is generally these 2 weeks of summer visitation handled, should it include his weekends and the continuous rest of the weeks or the whole week has to be with my weekend and his visitation goes on as usual? Apart from this nothing else in mention in the pendente lite and it's a divorce which is based on cruelty and domestic violence, he has already gotten a warning to not use children as pawns, age 8 n 3

A:  David's Answer:  It sounds as though the pendente lite order is a bit vague. I agree you should not be deprived of 4 weekends in a row & if the order doesn't otherwise specify, then offer a compromise position. If he still does not agree, then either of you may file a motion with the Court (perhaps an alternative, if permissible by the individual Judge, is to have one of the attorney file for a "pre-motion conference" with the Judge's Law Secretary & see if s/he can resolve the issue short of a motion). For a full assessment, you're best advised to schedule a consultation with a NYC Child Custody attorney.   -- David Bliven, Bronx Child Custody attorney (

I've an outstanding support/paternity/custody case with my ex. She and her lawyer have not been straight but I need a lawyer

Q:  (Might have to write this in txt speak to get it under 800 chars)-so my ex filed for support/custody back in March and didn't warn me- got summonsed to court last month but I could not get a lawyer in time as no one got back to me. We agreed on a sum and the lawyer drew up an agreement but tried to trick me out of legal support. In court the judge threw out the case as they had not filed for paternity first. I've spoken to a lawyer who wants to screw her like she is screwing me but I just want someone to sort this for my son. I need a lawyer who can just help with the agreement and oversee and protect me. I am happy to pay support but I want to have this done fairly and no disrespect but I would rather money go to him than thousands on legal fees. Is there anyone out there who can help?

A:  David's Answer:  Yes, you should shop around. You can look for attorneys here on Avvo, with the proviso that merely because an attorney has his/her office in, say, Bronx or Brooklyn, doesn't mean s/he wouldn't also handle a case in Manhattan. You may also consult,, and/or call the NYC Bar Association.   -- David Bliven, Bronx Child Custody attorney (

Saturday, July 13, 2013

Can I go to court and get papers for my mom to sign over custody of my son back to me? she's to sick to sit in court all day

Q:  Can I go to court and get papers for my mom to sign over custody of my son back to me? she's to sick to sit in court all day

A:  David's Answer:  I assume from this that your mother is the grandmother of the child and was at one point given custody of your son via court order. Assuming this to be the case, then if there's been a change of circumstances, you may file the petition for modification yourself. If she's physically or medically unable to come to court on the return date of the petition (after you've duly had her served with the petition & have an affidavit of service), then get her to write a notarized letter to the court consenting to the change of custody. For a full assessment, you're best advised to schedule a consultation with a Bronx Child Custody attorney.  -- David Bliven, Bronx Child Custody attorney (

I live in New York and i Want to file Visitation for my children who are in NC

Q:  Spoke to NC Family Court and was informed that i would have to get an attorney because a previous order for visitation was established in New York, even though that order is no longer valid i am being told that i need to get an attorney to file the expired orders of visitation at the north carolina courthouse before the judge will even hear the case. Financially i am in dire straits because of the Child Support and can not afford an attorney, i just want to be able to see my children....havent seen them since June 2012 and i would like tonhave your advice on this matter. I know that i am going to have to appear in NC for any hearings,

A:  David's Answer:  Just so I understand the situation - the custodial parent has relocated to North Carolina with the children, you're okay with that, but merely wish to establish (or re-establish) your visitation rights. Moreover, I'm assuming that despite you having a right to continue the proceedings in New York if you choose, for whatever reason you wish to consent to a transfer of the case to North Carolina. Correct? If that's the case, then you do NOT need a New York attorney - you'll need a North Carolina attorney to register the order in North Carolina, then move to modify same down there. That said, for a full assessment of the situation, you're encouraged to schedule a consultation with a Bronx Child Custody attorney.   -- David Bliven, Bronx Child Custody attorney (

Wednesday, July 10, 2013

My childs mother relocated to Florida from Delaware against a court order. And NY state vacated her child support. what can I do

Q:  I have joint custody and i live in NY. I have had regular visits with my son and have been supporting him all his life. My sons mother relocated from Delaware to Florida against the courts order that she couldnt unless I or the court gave her permission which she did not get. 4 months later she relocated , pulled my son out school all without warning or permission. i have visited my son in Florida. Days after I found out she was gone I filed an order show cause and a ex parte petition. While at the court i also learned that she nor her lawyer did not file a petition to allow her to leave. In new york the child support magistrate vacated her child support order she termed it failure to prosecute. But the real reason was that the magistrate did not like what was being done to my son. age12

A:  David's Answer:  You would need to file an order to show cause & violation petition on the custody case. I'm also assuming that the custody order was originally issued by a New York court. If so, they would have continuing jurisdiction to enforce the order. You should also schedule a consultation with a Bronx Child Custody lawyer for a full assessment.  -- David Bliven, Bronx Child Custody attorney (

New York/CT family law; MOving from CA to NY Custody law changes.

Q:  We are moving from CA to NY. What are the changes we should expect in terms of Custody/Child Support/OTher. Now we have both joint custodies and a stipulated visitation plan until the baby is 3 y.o. She is 1.3 y.o now. Does jurisdiction go over to NY once we live there 6 months? Can my ex file for more time once he is there? HOw is child support calculated?

A:  David's Answer:  Merely moving from one state to another would not necessarily, in itself, create a basis for modification of either visitation or child support. If there is already an agreement regarding visitation, then unless (once you move) he'll be significantly closer or farther away, there seems to me no basis to change the visitation. And regarding the child support, unless expenses are anticipated to greatly increase, there also seems to be little basis for modification. That said, here's an online calculator to figure out the approximate amount: As an aside, jurisdicition for modification goes to NY immediately if both of you move to NY - the 6-month jurisdicition analysis applies only to INITIAL applications, not modification or enforcement petitions (and even then, only applies to custody/visitation cases). In any event, feel free to schedule a consultation with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (

Forensic evaluation

Q:  I have a full custody. After nasty accusations from the other party the referee found no change in circumstances and child's lawyer was also ok with current arrangements. Still forensic evaluation was ordered and I have to pay for it??? Why I have to put my kid thru this? What can I do and what to expect?

A:  David's Answer:  Generally if there is a contested custody case requesting a switch of custody, forensics & a home study are ordered. If forensics are ordered, then the Court usually directs payment on a pro rata basis. That said, if the Referee indicated there does not seem to be a change of circumstances, then a formal motion to dismiss should be (or rather should have been) filed. For a full assessment, contact a NYC Child Custody attorney to schedule a consultation.  -- David Bliven, Bronx Child Custody attorney (

My husband & I Would like to get custody of my 10 month old niece, of whom we believe the mother unfit. How would we do that ?

Q:  The mother (my younger sister) does not work, uses very foul language around the children, carts the children around at all times of the evening to different peoples homes, one of which the baby was bitten -from head to toe by bugs. From what I have been told by my other siblings, she is not even up to date with the child's doctors appointments. Before the baby was born, she asked us to adopt her, and we declined. On the grounds that we did not think it right, and that we believed she would try to do her best in regards to the child. Which to date, she has not. My husband and I have tried to do what we can for the child, i.e: buying her clothes, food, formula on occasion, and feeding her (since her mother was trying to keep her on formula only, until the baby was 6 1/12 months old).

A:  You should file a petition for custody. Be aware that this is a tough case to prove if she contests, as you have to prove with admissible evidence (not hearsay) that she has "persistently neglected" the child. For a full assessment of the situation, I advise you to schedule a consultation with a Bronx Child Custody attorney.  -- David Bliven, Bronx Child Custody attorney (

My daughter's mother and family members refused court appointed visitation!

Q: I have court appointed weekly visitation with my daughter. Her mother along with family members refused to follow order. I have filed a petition in court and have been twice (no show by mom), each time the case have been postponed by clerk. I am now filing for physical custody and visitation. My daughter is now being taking care of by maternal grandmother who my daughter's mother left her with. They have created an unstable environment and I am very concern. I have not seen my daughter in several months. My daughter have lived in several different residence including mine and she is now 2.5 years. What rights do I have? How long does process take? What are my next steps? I cannot afford a lawyer!

A:  David's Answer:  You certainly have a right to petition for custody. How successful you'll be is the more important - and more complex - question. One cannot adequately assess that without knowing more of the background. Generally a custody case in the Bronx will take 1-2 years if a trial is necessitated. Moreover, if you cannot afford an attorney the Court has the ability to assign you a free attorney. In any event, if you would like a free consultation, call a Bronx Child Custody lawyer.  -- David Bliven, Bronx Child Custody attorney (

Saturday, July 6, 2013

Can i block my son real father from seeing him. he has not been in his life and my husband gave hin his name he 5 years old now

Q: my son father knew was having him and he never came to see him. my husband claimed him AS HIS OWN AND BEEN SUPPORTING HIM FOR 5 YEARS. MY SON IS 5 NOW.

A: David's Answer: This would be a paternity case and your defense would be one of both the "presumption of legitimacy" as well as equitable estoppel, in that you would be attempting to have your husband declared the legal father of the child (regardless of biology). He cannot get visitation through the courts without establishing paternity first.  -- David Bliven, Bronx Child Custody attorney (

Does having a temporary order of custody, have any weight in determining the outcome of my custody trial?

Q: Does having a temporary order of custody, have any weight in determining the outcome of my custody trial? Do judges tend to favor the custodial parent even if it’s only temporary?

A: David's Answer: Yes - having temporary custody is indeed a factor the Judge will consider at the ultimate custody trial. This is because stability in the child's life is a specific factor which must be weighed. That said, there are numerous other factors which must be considered as well.  -- David Bliven, Bronx Child Custody lawyer (

Comment on Brazil Custody Dispute

Current in the news is an international custody dispute involving a 6-year-old American child, and American mother & a Brazilian father (

It is important to note that both sides of the story are not yet clear, and media reports I've read seem at least slightly skewed toward the American mother.  It is just as possible, for instance, that the father's allegations of the mother taking the child away from him & preventing him from seeing her are absolutely accurate.  My experience says the truth is probably somewhere in the middle.

All that said, this case points to the continuing difficulty in the area of international child custody law.  Some countries are signatories, while others have merely "ratified" or "acceded" to the Hague Convention on Child Abduction (, which is the international treaty in place theoretically governing child custody disputes.

A decent summary article on the subject is found here:

Brazil has "acceded" to the Convention, which means it, in effect, "agrees in principle" to the Convention and agrees to generally apply it.

What is lacking is clarity along the lines of the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA").

Overall, before one travels with a minor child internationally (or, for that matter, domestically), the custodial parent is well advised to have a clear court order of sole or primary custody when the parents are not living together. 

In the international case, it is also well-advised the you have the order state specifically how the other parent was served with the summons or notice of the custody case.  This is important so it's crystal clear to the foreign country how jurisdiction was established in the United States over the foreign resident parent.

Parents in such situations should consider at the least scheduling a consultation with a child custody attorney in their area, particularly one knowledgeable about international child custody laws.

Tuesday, July 2, 2013

My god son mother would like to give me custody of him. How do we go start the process?

Q: At the moment She is financially and mentally unfit to care for her special needs child.

A: David's Answer:  File a petition with the Family Court in your county. By going to the Petition window in the courthouse, a clerk will be assigned who will assist you in filing out the application and explain the procedures for serving her. Then on the court date (usually about 4-6 weeks later) the Judge can generally give you a custody order if the mother is consenting.  -- David Bliven, Bronx Child Custody attorney (

Can I get legal guardianship of my 14 year old grandson if the mother agrees and the father doesn't?

Q: My daughter is willing to sign over guardianship of my grandson to me, but the father will not. The father's green card was taken from him and resides in the US under a work permit. The father is mentally and abusive to his son and did not start paying child support until the court ordered him to, about 4 years ago. He has lied on his documents that his son lives with him, which he does not. It is a matter of record he pays child support to the court. The father is looking to have his son live with him in order to obtain a green card and remain in the US. When his son visits him there is no supervision, he is poorly fed and left to fend for himself while the father works and leaves his son with his sister who is illegally in the US. I can provide a better life for my grandson.

A: David's Answer: More details are needed to adequately assess your situation - for instance whether the child already resides with you and if so, for how long. You ultimately would need to prove that the father has either legally abandoned the child or persistently neglected him. I'd also advise the carrot-and-stick approach - advise the mother to file a violation case against him and look to cut a deal on that case if he agrees to custody/guardianship to you.  -- David Bliven, Bronx Child Custody lawyer (

What are the laws in NYC regarding splitting siblings, when one child is violent and aggressive towards mom and siblings?

Q: I have sole, legal and physical custody awarded to me. Their father has no visitation. My oldest son (6) is very violent and aggressive and is physically hurting me and my other son, who is 4. I want whats best for him and my other son, so was wondering if courts would allow them to be separated for everyone's best interest.

A: David's Answer: There is no specific "law" regarding the splitting of siblings. The questions which will arise are: did you do EVERYTHING in your power to get help for the child as well as for your family? This would seem to include individual counseling for the child as well as family counseling for all of you. Then the next question is: where are you intending on placing the child? If his father isn't willing to take him (and this can't be forced), then the alternative is placing him with a relative or in foster care (the latter only as an absolute last resort).  -- David Bliven, Bronx Child Custody attorney (

Determining Sole legal Custody

Q: My son’s mother and I cannot come to an agreement with anything having to deal with my son . We have an open custody case and I know for a fact things won’t get better. I want to request sole legal custody. Is simply not being able to agree on major things, like which school he attends enough to grant one parent sole legal? How is Sole legal custody determined in court? I already have Temporary Residential Custody.

A: David's Answer: The Court considers many different factors, and if the child is already with you at the beginning of the case, that's also a factor the court will consider. But because this is a complicated analysis, you're best advised to schedule a sit-down consultation with a NYC Child Custody attorney for a full assessment of your case.  --  David Bliven, Bronx Child Custody attorney (