Q: After being found guilty in a family court hearing of DV and a restraining order is finalized is it possible to have any charges on your record dropped oif the victim wanted them dropped or do those charges stay on the person's record forever? The person was never arrested for this incident.
A: David's Answer: There is no such thing that I'm aware of. I suppose one could file a motion to vacate the finding, but it may also subject the other party to sanctions and/or a perjury charge. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
I am a former Family Court prosecutor and handle all divorce and family law matters, including contested and uncontested divorces, child custody/visitation, child support/paternity, adoptions, family offense (orders of protection), child abuse/neglect and juvenile delinquency. I practice primarily in Westchester (White Plains and vicinity) and the Bronx (Riverdale and vicinity). My website can be found at www.blivenlaw.net.
Wednesday, September 11, 2013
Saturday, September 7, 2013
Have an order of protection from Family Court against my husband, I recently received a letter from him. Will he be charged?
Q: This order is from a domestic violence act which refrains him from much much more. This said I recently received a letter from him asking me for some documents he needs to resolve another case in Canada. He also stated that he would proceed with our divorce which has been pending since November '2012 otherwise he will not take any action. This in my eyes is a violation of the order I have, will he be charged? If not, I might be aggravating him and then he might not follow through with signing the divorce documents. Looking for some guidance on how severe his punishment would be if any? Thanks
A: David's Answer: The question is whether the order of protection includes a "no contact" provision. If yes, and he was personally served with a copy of the order, then this would appear to be a technical violation of the order. That said, because the substance of the letter was not intended t harass you, the Judge would likely let him off with a warning (perhaps after spending a day in jail if a warrant needs to be issued). -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: The question is whether the order of protection includes a "no contact" provision. If yes, and he was personally served with a copy of the order, then this would appear to be a technical violation of the order. That said, because the substance of the letter was not intended t harass you, the Judge would likely let him off with a warning (perhaps after spending a day in jail if a warrant needs to be issued). -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Friday, September 6, 2013
NY-Child Support question
Q: Divorced since '04. 17 y.o. twins. Modification of child support possibly, if I agree. Support by ex (who has moved to CA and remarried) is supposed to be moved up from $1200/mo. to $1700/mo. as per agmt drawn up 10/09 and I am supposed to give ex half of apt where children and I reside. He is self-employed , I am admin asst. Tough times for me with money and increased credit card balances. He offers to let me stay and I let him keep payments at $1200. He credits me (as he has in past) toward sale of apt. It stands I give him $50K as past agmts. He will now allow me a credit of another $12,000 or so. It seems fair, but I struggle day to day. He is in child support enforcement. Can he and I write up agmt ourselves and have it notarized? Is this legal or do I need a lawyer to do?
A: There is particular language you would need included to have the agreement be enforceable. Thus, it is best that you have an attorney do the modification agreement. Moreover, assuming it was incorporated into your divorce judgment, you would also need the judgment modified as well. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: There is particular language you would need included to have the agreement be enforceable. Thus, it is best that you have an attorney do the modification agreement. Moreover, assuming it was incorporated into your divorce judgment, you would also need the judgment modified as well. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
How does one ensure that the attorney for the children does their due diligence in representing the children?
Q: I feel that the attorney for my children is not representing them with due diligence. I do not believe this person can represent best interest without investigating the children’s complete circumstance and knowing what is true or untrue in the case that will decide their futures. To my knowledge this attorney has made no effort to verify any allegations including illegal activity, forgery, & perjury, manipulation, fear mongering & parental alienation. I feel that this attorney is biased to the children remaining in their current location overlooking the fact that my spouse does not reside there as claimed. This means that the children are being raised by a third party instead of their parents. This attorney seems perfectly comfortable relying on affidavits and evaluations, making court appearances & collecting fees rather then exhorting any effort to truly determine what is in the children’s best interest and how best to represent them. I have read Adopting Law Guardian Standards and The Chief Judge Clarifies the Role of Attorneys for Children NYSBA Family Law Review… but they all seem vague. Any advice would be greatly appreciated!
A: Part of your confusion stems from a misunderstanding of the role of the Attorney for the Children. The Attorney is NOT an investigator, and thus has no duty to "investigate the facts." The Attorney is there to represent his/her clients, and thus as best as s/he is able to s/he should ascertain their position on the particular issues before the Court. Your attorney - in collaboration with you - should be gathering evidence and attempting to persuade both the Judge & the Attorney for the Child to come around to your perspective. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: Part of your confusion stems from a misunderstanding of the role of the Attorney for the Children. The Attorney is NOT an investigator, and thus has no duty to "investigate the facts." The Attorney is there to represent his/her clients, and thus as best as s/he is able to s/he should ascertain their position on the particular issues before the Court. Your attorney - in collaboration with you - should be gathering evidence and attempting to persuade both the Judge & the Attorney for the Child to come around to your perspective. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Can I sue my ex-spouse for lying under oath (perjury) re: abuse in our child custody trial?
Q: The statements are completely false and were intentional, can be proven, and has caused damage in our case.. My son has been taken from me temporarily and we are in a heated trial that is bankrupting me!.. if so, is there a statute of limitation.. I was told that this is not defamation or slander but perjury..
A: First, you should concentrate on winning the custody trial by using the evidence you've obtained. There are generally civil tort claims you can pursue, including abuse of process. You are best advised to consult a civil litigation lawyer on such a claim. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: First, you should concentrate on winning the custody trial by using the evidence you've obtained. There are generally civil tort claims you can pursue, including abuse of process. You are best advised to consult a civil litigation lawyer on such a claim. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
How do I obtain a copy of my forensic evaluation reports?
Q: The judge ordered that a report be submitted to the court. The court sent copies to the attorneys. My attorney has quickly read it to me but says that they are not allowed to give me a copy. Nowhere in the order does it state that I am not allowed a copy and I have found no law that disallows me from having the report. The order did state that neither attorney shall have contact with the evaluator except for payment issues. it did not state that I may not request a copy although I believe he would not give it. I did go to the court to see if it was in my records and was told that it is in the judges records and they would not give me a copy. What should I do to obtain these reports? Thanks very much for any advice!
A: To my knowledge, It is the current policy of the Westchester courts not to allow the parties to have a copy of the report. That said, unless there is a specific order to the contrary, your attorney should allow you to read the report in his/her office. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: To my knowledge, It is the current policy of the Westchester courts not to allow the parties to have a copy of the report. That said, unless there is a specific order to the contrary, your attorney should allow you to read the report in his/her office. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
Wednesday, September 4, 2013
How do I get emancipated at 17 in New York
Q: How do I go about getting emancipated at 17 in order to be declared a legal adult and get out of my parents house?
A: David's Answer: There is no specific application or petition to "emancipate" yourself. Until you are 18, you are still (legally-speaking) a child who must be governed by your parents. Understand that if you leave the house against your parents wishes, you forfeit your ability to request any financial support from them. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
A: David's Answer: There is no specific application or petition to "emancipate" yourself. Until you are 18, you are still (legally-speaking) a child who must be governed by your parents. Understand that if you leave the house against your parents wishes, you forfeit your ability to request any financial support from them. -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)
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