Q: I have physical custody of my kids the live with me, the father has visitation,he's trying to register my kids in the school in his neighborhood does he have a right to do that? Thanks I live in nyc
A: David's Answer: No - generally the DOE will require some proof of where the children are residing. That said, the best way to rectify the dispute is to file a petition in Family Court for an order of custody. Schedule a consult with a Bronx Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
David Bliven is a former Family Court prosecutor who handles the full range of Divorce and Family Law cases, including child custody and visitation matters. He practices primarily in Westchester (White Plains and vicinity) and the Bronx (Riverdale and vicinity). His website can be found at www.blivenlaw.net.
Saturday, March 29, 2014
Monday, March 24, 2014
Can I file a restraining order against a grandma for lying in an affidavit and saying bad things about me to my 5 yr old?
Q: My daughter's paternal grandma spent many years being very kind to me and bad mouthing her son when he was less than a good father to our child. The dad (her son) is now stepping up to the plate and wants custody of our child, and she turned against me and lied in an affidavit (made things up that I did and said.) I believe now that her son wants custody she thinks she will have a more secured grandparent role so has turned against me and buddied with him. I know she will go to our custody hearing as a witness and lie and slander me to assist in making me look like a bad parent so her son gets custody. I'm concerned she is saying bad things to my daughter about me and generally I feel she is a liar and not a good influence in the mean time. What can I do?
A: David's Answer: To receive an order of protection, you must allege & be prepared to prove a domestic violence crime as been committed. Lying is not good, and may even constitute perjury, but does not constitute domestic violence. The best way to handle a liar is to hire a good lawyer & prepare to challenge her lies with evidence to the contrary. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: To receive an order of protection, you must allege & be prepared to prove a domestic violence crime as been committed. Lying is not good, and may even constitute perjury, but does not constitute domestic violence. The best way to handle a liar is to hire a good lawyer & prepare to challenge her lies with evidence to the contrary. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Wednesday, March 19, 2014
My mediator is also favoring the fathers side can she dismiss charges against my childs father for abuse ?
Q: My daughter is physically abused by her father amd asc was involved with proof the mediator told him just dont hit the child anymore
A: David's Answer: Are your sure the case was referred to mediation - as opposed to the case having been assigned to a Referee? There's a big difference, as a Referee is the equivalent of a junior Judge. A mediator, on the other hand, cannot issue binding orders. Schedule a consult with a Bronx Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: Are your sure the case was referred to mediation - as opposed to the case having been assigned to a Referee? There's a big difference, as a Referee is the equivalent of a junior Judge. A mediator, on the other hand, cannot issue binding orders. Schedule a consult with a Bronx Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Is it really difficult to modify a custody order?
Q: I was being refused when trying to see my kids, so I filed and went to mediation. The mediator bullied me into accepting a custody arrangement that I am not happy with, but he made it seem like it was that or nothing. I have already had to go to court to enforce the order. The order has been in place for 2 years. I get the kids 2 days a week (most are manipulated), but I would like to have more in the summer. I would also like to add a few things regarding holidays, Spring break and extra curricular activities. I am receiving no help from cp in reaching an agreement. The order is also vague for the most part, allowing for doubts. I need and want more time with them.
A: David's Answer: To judge how difficult it would be to modify the prior order, one would need to know why those things were not in the original order - was it intentional or just an inadvertent omission? One would also want to know the ages of the children - & if they are adolescent or close to it, what their position is on the expanded access. Finally, to what degree are you looking to participate in "extracurricular activities" - is it just to, say, attend your son's baseball game, or something more extensive? Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: To judge how difficult it would be to modify the prior order, one would need to know why those things were not in the original order - was it intentional or just an inadvertent omission? One would also want to know the ages of the children - & if they are adolescent or close to it, what their position is on the expanded access. Finally, to what degree are you looking to participate in "extracurricular activities" - is it just to, say, attend your son's baseball game, or something more extensive? Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
I am in midst of a custody battle with my ex. She is trying to get physical custody and legal custody
Q: In midst of our case. I just found out today from a friend that she has 16 year olds come to her house and smoke marijuana there and that she had my Children also smoke it. Moreover when my 8 year old was visiting with me she also mentioned this and that she took a puff from a bong. I am pro se and have no money for lawyers. How do i bring this up in court without having her lawyer throw it out? How do i save.my childen from this unstable crazy woman?
A: David's Answer: I wouldn't sit on this information - you need to report it asap as this may be a form of child neglect. You should strongly consider filing an order to show cause with the Judge and/or reporting it to the Attorney for the Children. Get an affidavit from the friend. Also strongly consider asking the Judge to appoint you assigned counsel. Schedule a free consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: I wouldn't sit on this information - you need to report it asap as this may be a form of child neglect. You should strongly consider filing an order to show cause with the Judge and/or reporting it to the Attorney for the Children. Get an affidavit from the friend. Also strongly consider asking the Judge to appoint you assigned counsel. Schedule a free consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Can the father of an unborn child voluntarily relinquish his parental rights?
Q: I am the mother of a 23 year old daughter who has had problems and is now pregnant by a 32 year old man. The father wants nothing to do with the child. He says he is willing to sign a waiver of all this parental rights, a relinquishment of any rights to the child. This is perfectly fine with us; in fact, this is what we want. This is in New York. Is this possible? If so, how? Or do we have to wait until the baby is born? Does it have to be approved by the Court? Or can we simply make a written agreement? I know I will eventually need a lawyer, but I want to get as much background as possible first.
A: David's Answer: New York public policy forbids the bastardization of children. As such, unless she's wanting someone else to adopt the child, then he cannot surrender his parental rights. That said, if he ever tries to petition for visitation, she can counter-sue for support. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: New York public policy forbids the bastardization of children. As such, unless she's wanting someone else to adopt the child, then he cannot surrender his parental rights. That said, if he ever tries to petition for visitation, she can counter-sue for support. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Who decides when there is conflict over visitation dates when none are specifically indicated in court order?
Q: Court order exists to allow visitation w/international travel for elementary-school aged child 3x a year. Parents alternate chaperoning child. NCP gets "up to 10 days" with child over school holidays (no specific dates or times indicated), and a mechanism is included in the order for days less than 10 to be made up over the summer. CP, who is scheduled to chaperone child, offered travel dates that would accommodate child attending regularly-scheduled activities and results in no loss of visitation time (per summer mechanism). NCP insisted on departure a day earlier; CP said no. All in writing. NCP booked flights for CP and child anyway on "wrong" date and is insisting those tickets must be used. Nothing in order about who chooses. CP has sole custody. What to do?
Extremely hostile situation.
Additional information
Extremely hostile situation.
A: David's Answer: Especially in a hostile situation, the language in the agreement/order must be exactly followed. Thus, if the NCP asked for a departure date "a day earlier" than was provided for in the agreement/order, then it appears to me NCP loses. That said, a definitive opinion can only be rendered after a review of the actual agreement/order. Thus, schedule a consult with a NYC Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
How difficult is it for a father to win child custody in NY?
Q: I understand that 87% of mothers have custody of their children only 13% of fathers do. This father is fighting because the child is not and will not thrive under unemployed alienating mother. The forensic psychologist recommends father have sole custody. Pro-Mother guardian suggested 50-50 physical custody with father having sole legal; rejected by other side as they are not paying for all these lawyers. Father unemployed, good home, primary caretaker; mother unemployed, neglectful. Father has said stupid politically charged comments on the internet many years ago and they hope to use that against him. So at trial, realistically how much of a challenge does this father have? He loves his child and she needs him to take care of her. She is only a meal ticket to the mother.
Correction; the father is employed; mother willfully unemployed
Additional information
Correction; the father is employed; mother willfully unemployed
A: David's Answer: If the forensics are on the father's side, that is clearly an advantage. I would also want to know other factors which affect the analysis: (a) age of child, (b) child preferences (if 10yo+), (c) where child's been primarily residing since the parties physically separated, (d) the extent & ability to prove the alienation, (e) basis & ability to prove statement that M's "neglectful." You should definitely have an attorney representing you if the case is going to trial. Schedule a consult with a NYC Child Custody lawyer for a full assessment.-- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Saturday, March 15, 2014
My child has special needs can that trump a jurisdiction decision ? Ny offers programs for special needs that FL does not.
Q: My son attended preK in Florida for over 6 months. He is 5 & doesn't quality for kindergarten in FL for another year due to age cut off. He has been in NYC kindergarten for 5 months now & has a disability classification as SPEECH AND LANGUAGE IMPAIRED and is in INDIVIDUAL EDUCATION PROGRAM receiving 5 special services a week Physical therapy 2 x's a week & speech therapy 3 x's a week cause he was determined to be "severely behind" Fl does not offer these services. If I go back to FI i have to pay for all these services out of pocket which I can't afford. NY dept of ed pays for all of these services & even assigned a TEAM of teachers to address his needs.
Can these special services trump jurisdiction that his father in FL is winning? Can special needs keep my son in NY?
A: David's Answer: I'm not sure I understand your question: are you saying you have a pending child custody case in Florida & a decision has already been made that Florida has jurisdiction? Or that the Florida court is merely considering whether to retain jurisdiction or not? In any event, the relative merits of your case - or "best interests of the child" - would not affect the "home state jurisdiction" analysis. If there is no home state of the child, then the Judge may consider such facts - I stress may because if the case is pending in FL, same is dependent on FL law. Schedule a consult with a Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Can these special services trump jurisdiction that his father in FL is winning? Can special needs keep my son in NY?
A: David's Answer: I'm not sure I understand your question: are you saying you have a pending child custody case in Florida & a decision has already been made that Florida has jurisdiction? Or that the Florida court is merely considering whether to retain jurisdiction or not? In any event, the relative merits of your case - or "best interests of the child" - would not affect the "home state jurisdiction" analysis. If there is no home state of the child, then the Judge may consider such facts - I stress may because if the case is pending in FL, same is dependent on FL law. Schedule a consult with a Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Is it illegal to let children watch movies with a 15 certificate?
Q: I'm getting a divorce, and my husband has reported me to child cervices for letting my children watch movies with 15 certificate. There is nothing sexual. I'm very worried about this, can someone please tell me if it is illegal?
The movie was brought on vacation. I'm not sure how they deal with things like this here? -- as stated, I am originally from UK, and have live here for 3 years, thus am not sure of the law here.
A: David's Answer: First, it appears a "15 certificate" is something used in Britain, not the U.S. Second, it appears akin to a PG-13 rating, which I don't see, in itself, as harmful. This may backfire on your husband as calling in a false report of child neglect may be used against him in the custody case. Schedule a consult with a NYC Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Additional information
A: David's Answer: First, it appears a "15 certificate" is something used in Britain, not the U.S. Second, it appears akin to a PG-13 rating, which I don't see, in itself, as harmful. This may backfire on your husband as calling in a false report of child neglect may be used against him in the custody case. Schedule a consult with a NYC Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Vistation/order of protection
Q: My sons father have vistation thursday-sunday afternoon . On social media he stating he is somewhere else but I have no clue who os with my son is staying with I am concern theres a i took out a order of protection aganist my sons father.partial order of protection we can only dicuss the welfare of my son..I want to call and verify where is my child?
A: David's Answer: I don't see any harm in calling to check-up on your child. That said, just as he doesn't necessarily have a right to know where you take the child at all times the child is with you, neither do you necessarily. If there is a need for a visitation restriction, then you'll need to file an application with the court & justify your request. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: I don't see any harm in calling to check-up on your child. That said, just as he doesn't necessarily have a right to know where you take the child at all times the child is with you, neither do you necessarily. If there is a need for a visitation restriction, then you'll need to file an application with the court & justify your request. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Saturday, March 8, 2014
Temporary custody order and child support
Q: If I get temporary custody of my son do I still have to pay child support.
A: David's Answer: No - if the temporary order is phrased as you having primary residential custody (as opposed to shared custody) then you do not pay child support. You may, however, still need to pay your share of unreimbursed medical, educational and/or child care expenses. Schedule a consult with a NYC Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: No - if the temporary order is phrased as you having primary residential custody (as opposed to shared custody) then you do not pay child support. You may, however, still need to pay your share of unreimbursed medical, educational and/or child care expenses. Schedule a consult with a NYC Child Custody lawyer. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
I want custody of my daughter back
Q: Five years ago I had a baby girl. I was only eighteen and not in a great place at all and nowhere near ready to be a mom. So I gave my daughter to my sister to look after because I felt it was for the best. Now ,five years later I'm in a much better place. I've gotten myself together and I feel like I'm ready to be a mom. But my sister is refusing to let me take my daughter back. Can she do this ? Will I have to go to court ? What are my chances ?
A: David's Answer: You would need to file a petition for custody. Generally, your sister would need to prove you either legally abandoned the child or persistently neglected the child. If she's able to satisfy this initial burden, then the Judge may leave custody with her if the Judge perceives same to be within the child's best interests. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: You would need to file a petition for custody. Generally, your sister would need to prove you either legally abandoned the child or persistently neglected the child. If she's able to satisfy this initial burden, then the Judge may leave custody with her if the Judge perceives same to be within the child's best interests. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Does a father need the mothers permission to travel out of state during 2 week long summer visitation when mom has sole custody?
Q: We made our own custody/visitation schedule in which a judge signed. It is numbered. #2 is during school and addresses whereabouts and restricts visitation to fathers residence. #3 is summer visitation and does not address whereabouts. It simply states 2 weeks with father. What are the laws in New York as to what the fathers obligations are in traveling during long visitations? If I disagree with the travel plans or distance of travel, can I deny visitation until we agree with a plan? Is he only required to notify me? Since I have sole custody, any deviation from the understanding of his visitation, would I petition with the courts? What are the laws ? Again, this was not an order dictated by a judge.
As much of an answer as I can receive would be appreciated. Thanks.
A: David's Answer: A definitive answer can only be given after a review of the order. That said, assuming your representation is accurate, I would say the father is not restricted during his summer travel. It would seem to me, however, that the 2 provisions are inconsistent & need to be clarified. Thus, you're best advised to file a modification petition. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
As much of an answer as I can receive would be appreciated. Thanks.
A: David's Answer: A definitive answer can only be given after a review of the order. That said, assuming your representation is accurate, I would say the father is not restricted during his summer travel. It would seem to me, however, that the 2 provisions are inconsistent & need to be clarified. Thus, you're best advised to file a modification petition. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Should I continue the vistation
Q: Theres a court order for vistation for my son father. In feb 27. My son father was very verbally abusing me causing my son to cry and get upset. He was aaggressive and I wanted to protect my son so I stated in public you are not taking my son like this. There is a order of protection partial. But my question is should I continue the vistation for this week march 6 the vistation is thursday-sunday afternoon. Police report was file the day it happen... I will like to appeal n get the order protection modify to where he has to meet me in the precinct
A: David's Answer: If there is a court order of visitation, then you must continue to do the visits unless the order of protection says otherwise (for instance, it includes the children & is a full stay away). Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: If there is a court order of visitation, then you must continue to do the visits unless the order of protection says otherwise (for instance, it includes the children & is a full stay away). Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Vistation
Q: On feb 27 I did not allow my son to see his father because he caused a scene by cursing and harassing me. our son was terrfied and crying because of this. This was not a positive image for our son to witness especially from his father. I called the police and filed a report on my sons father. Theres a partial order protection in effect. Did I violate vistation from the court to allow over nights for my son by not allowing him to see our son to see his father?
A: David's Answer: If he was otherwise to get a visit & you withheld the visit, then technically yes. The only question left is, in the discretion of the Judge, whether such violation was "willful" or not. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: If he was otherwise to get a visit & you withheld the visit, then technically yes. The only question left is, in the discretion of the Judge, whether such violation was "willful" or not. Schedule a consult with a NYC Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Can i get my daughter back?
Q: hello my name is Carmen i am not to familiar with the custody law and need help my 14 year old daughter currently lives with her dad without my permission since the last week of December 2013 she wants to come home now and he wont let her he lives in NYC. i live in reading pa what can i do to get my daughter back i nor him have custody of her we have never had to go to court because he was an absent parent in her life for 13 years now he does not want to let her come home please help.
A: David's Answer: You would need to file a custody petition. You may arguably have jurisdiction to file in PA, if the child was previously residing there for more than 6 months prior to her temporary move to NY. You'd be best advised to schedule a consultation appointment with both a PA & NYC Child Custody lawyer for a full assessment of the situation. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: You would need to file a custody petition. You may arguably have jurisdiction to file in PA, if the child was previously residing there for more than 6 months prior to her temporary move to NY. You'd be best advised to schedule a consultation appointment with both a PA & NYC Child Custody lawyer for a full assessment of the situation. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Can I use 'character reference' letters in a Custody Hearing in NYC?
Q: My ex will most likely look to discredit my good character in an upcoming Custody Hearing, as she is petitioning for sole custody. I want joint custody Instead of bashing my ex's character in court, I'd prefer to have the judge read character reference letters from neighbors, coworkers, and long time friends written on my behalf. Will the family court judge consider these references in her final ruling? Can she be given them during the hearing, or should I supply them to her before the hearing? Must they be notarized letters? thanks you for your help! I just want equal time with my son, so any advice you have will be appreciated.
A: David's Answer: You cannot present character reference letters at trial. You must call the persons as witnesses as only their testimony would be (potentially) admissible. Schedule a consult with a NYC Family Law attorney for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: You cannot present character reference letters at trial. You must call the persons as witnesses as only their testimony would be (potentially) admissible. Schedule a consult with a NYC Family Law attorney for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Wednesday, March 5, 2014
Can I terminate Parental Rights?
Q: I recently moved back to NY from FL. I have an 8 year old daughter who has not seen her bio father since she was about 1.5 yr old. & does not know him. After her birth, he became an abusive drug dealer, in and out of jail on drug charges, warrants and more recently, domestic battery by strangulation and assault with a deadly weapon on his current wife. I personally never filed a report on the abuse I endured due to the death threats he made. So I know I wont have much leverage in court on that. However he does have the other charges along with him barely making child support payments. My husband wants to legally adopt my child since he he's been here for her since she was 2. I spoke with my ex on this. He stated he would fight me in court just to make me suffer. Can I terminate his rights?
He is on birth certificate.
No custody order.
There is a support order.
A: David's Answer: Yes - you can terminate his parental rights in the context of an adoption case so long as you satisfy grounds of legal abandonment. This basically means that for at least a 6-month period prior to the filing of the adoption case, the biological father has not had significant contact with the child. If the answer is yes, then I say proceed with the step-parent adoption case. Schedule a consult with a Bronx Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Additional information
No custody order.
There is a support order.
A: David's Answer: Yes - you can terminate his parental rights in the context of an adoption case so long as you satisfy grounds of legal abandonment. This basically means that for at least a 6-month period prior to the filing of the adoption case, the biological father has not had significant contact with the child. If the answer is yes, then I say proceed with the step-parent adoption case. Schedule a consult with a Bronx Child Custody lawyer for a full assessment. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
Are there any legal presumptions in a court of law?
Q: Court
A: David's Answer: Yes - in the area of child custody & visitation, courts in NY have held that visitation by the NCP is presumed to be in the best interests of the child. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
A: David's Answer: Yes - in the area of child custody & visitation, courts in NY have held that visitation by the NCP is presumed to be in the best interests of the child. -- David Bliven, Bronx Child Custody attorney (www.blivenlaw.net)
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