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 (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, July 6, 2013
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (http://worldnews.nbcnews.com/_news/2013/07/05/19311803-american-mom-daughter-6-stuck-in-brazil-in-child-custody-battle?lite).
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 (http://www.hcch.net/index_en.php?act=conventions.status&cid=24), which is the international treaty in place theoretically governing child custody disputes.
A decent summary article on the subject is found here: http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/oct99cro.html
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.
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 (http://www.hcch.net/index_en.php?act=conventions.status&cid=24), which is the international treaty in place theoretically governing child custody disputes.
A decent summary article on the subject is found here: http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/oct99cro.html
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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 (www.blivenlaw.net)
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