NY Family court defending against an order of protection from Ex wife.

Q:  I am now pro se - removed former attorney after incompetence across 8 months. No funds for a new attorney, and make enough to not warrant public defender. We are mid trial with next date in three weeks. Her side has not rested. During the last session, cross examination of Ex wife regarding her petition items, my (now removed) lawyer failed to ask the questions that would greatly help my case (many inconsistancies in her filings that were not addressed by him). Being Pro se now, I would like another opportunity to raise these questions. Can I call her back on the stand for cross examination? What is the formal procedure for this? Can I call her as my witness when I present my defense? If so, do I need to notify the court in advance of her as a witness, or is her presence enough? Thx


A:  David's Answer:  You can possibly call her as a witness on your case, but unless you're well-versed in how to properly conduct a cross-examination, don't expect the Judge to cut you slack merely because you're not a lawyer. You may wish to look into credit sources and/or legal financing to afford a lawyer. At the least, it may behoove you to at least schedule a consult with a White Plains Family Law attorney.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

How do i file for custody?

Q:  I live in VA and my 13 yr old son and ex wife live in Yonkers NY. My son wants to come live with me, He feels he is old enough to make his own decision but mom will not allow this, Do i need a laywer or can i file for petition for custody myself. What form do i need?


A:  David's Answer:  You can certainly file a custody petition - the forms are on the court's website: http://www.courts.state.ny.us/forms/familycourt.... That said, I'd advise you to at least consult a lawyer, if not hire one. Merely having the child say he wants to live with you doesn't mean you automatically get custody. Call a Westchester Family Law attorney to schedule a consult.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Pending CPS case. My husband is not named and yet they keep contacting him. I am living in nyc, not orange county but case here.

Q:  Charge is "neglect." Nothing specific as the charge is bogus. Children are beyond well cared for, nutrition, school, medical dental etc. Call was made from probation, fact not speculation. I have already written to Albany and hearing on November 12. Legal Aid advice is comply for one year. Basically accept terms as if I was guilty but I will not be charged. Is this the best advice?


A:  David's Answer:   By "pending CPS case," do you mean they just have an investigation pending, but nothing's been filed in court? If your Husband isn't being charged, does this imply that you are the one who's being charged? What are the exact charges - i.e., in what way do they say you neglected the children? As for whether you should "accept service for 1 year," this advise can really only be given after a full assessment of the case. Thus, schedule a consultation with an Orange/Westchester Family Law attorney.  -- David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

Is filing a petition in family court a violation of a criminal court restraining order ?

Q: My ex and I share a common child. She moved with the baby to north Carolina without my knowledge in the midst of an active restraining order against me. I have to stay away from her not our child. Does filing a petition against the mom constitute a violation of the restraining order? And do I have 90 days or 6 months before the child's home state loses jurisdiction?

A: David's Answer: Filing a violation petition constitutes only your allegations - it does not prove your case as she's entitled to a trial on the issue. Moreover, if there were no prior orders of custody or visitation in NY, then 6 months is the rule for home state jurisdiction. - David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

If after 3 years the court determines that I only have a 1% increase in income, and my ex waives the right to a 1% bump in

Q: child care, does that allow him to take me to court again next year to try to get a bigger increase -- or does he have to wait 3 more years (or for a 15% change in income or an unanticipated change in circumstances)?

A: David's Answer: As the order was not modified in any way (presumably), then yes, your ex can file a motion next year based on either a "substantial change of circumstances" and/or a "15% increase of income." - David Bliven, Westchester Family Law attorney (www.blivenlaw.net)

My Judgment of Divorce (JOD) is stapled to another document called Findings of Fact and Conclusions of Law. Is that considered

Q: ...part of the JOD? And if not, Is it more important or less important than the JOD?

A: David's Answer: Yes, it's considered part of the Judgment, as the "Findings" provide the rationale for the orders made within the Judgment. That said, for most non-court purposes (such as changing your name with DMV), you only need the Judgment itself.  - David Bliven, Westchseter Family Law attorney (www.blivenlaw.net)

A parent coordinator and a forensic psychologist was assigned to my case. Most recently, there is an order of protection.

Q: In place for me and our toddler. What advice can you please give me since now there are extra people involved? I just had my pre-trial and instead of trial the judge wants to have another conference again. I am in Supreme Court in white plains.

A: David's Answer: You should definitely consult a Divorce attorney - and I strongly urge you to retain one. What advise is then given to you depends on the individual facts of your case - particular what issues are being contested. - David Bliven, Westchester Family Law attorney (www.blivenlaw.net)