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Court Navigation “Nightmare”
Sandra’s child was just a toddler when she separated from her abusive husband and filed for custody and an order of protection. The court consolidated these matters into an Integrated Domestic Violence Court, where she was assigned counsel. Sandra then filed for child support, which was heard separately. She navigated that litigation on her own. Sandra was awarded child support, but believed the amount ordered was less that her husband would have been required to pay had all his income been disclosed. She knew that he hid information about his business from the court and artificially decreased his income, but was unable to prove it on her own.
When the husband stopped paying child support, the mother filed a violation petition. Sandra’s husband evaded service, so Sandra filed several petitions, each of which was dismissed. Finally, Sandra contacted Her Justice for help. Her Justice matched the client with a pro bono attorney who was able to convince the court to accept mail service of the child support petition; this along with a notice of warrant compelled the husband to appear in court.
The pro bono attorney then represented the mother in a proceeding to enforce and increase (modify) the order of child support, engaging in extensive discovery to prove that the husband earned more than he was claiming and had fewer expenses than he had presented in the initial case.
Sandra had hoped to file for divorce but was advised to wait for the custody and child support enforcement/modification matters to be resolved. She describes navigating the courts as a “nightmare” given the burden of missing work because of unnecessary delays, caring for the child, and shouldering most of the financial burden for the child, including childcare. She says she doesn’t “understand why everything is isolated even though it’s together.”
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Divorce, Custody, Visitation and Child Support
Mary is the custodial mother of her children; this means the children live with her. She and the non-custodial father, are married, but separated. The parents went to Family Court to establish orders of custody, visitation and child support. After this, they initiated the divorce proceeding, in Supreme Court, which stalled. Mary filed in Family Court to increase child support because of an increase in the father’s income but her case was dismissed because of the pending divorce action in Supreme Court. Mary’s options are extremely limited because she is without an attorney, or pro se. She can either pay her divorce attorney to file additional paperwork to deal with this issue in Supreme Court, or she would simply have to wait for the divorce to finalize before she can once again bring it in front of Family Court.
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Child Support Overpayment
Ryan is the custodial father. He obtained custody after an ACS case against mother. After obtaining custody, father moved to terminate the Order of Support he was paying mother and establish a new Order of Support against mother. The case dragged on for close to a year, as most of these cases do, and in the meantime father continued getting his support payments garnished every two weeks. When the Order of Support was finally terminated, father had paid mother child support for a period of time (more or less 6 months) that she did not have custody of the child. Family Court could not address this overpayment, and father was left with filing in small claims court for the overpayment.
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Divorce – Criminal Court – IDV – Family Court – 2+ Years and Unresolved
Emily, the custodial mother, started by filing to establish child support in Family Court. Non-custodial father signed an Acknowledgment of Paternity at birth. On the court date, the father alleged that mother was married at the time, invalidating the Acknowledgment of Paternity. Because Family Court does not have access to Supreme Court records, they had to adjourn the matter so that mother could provide the court with her Judgment of Divorce, which confirmed that the child was not a product of the marriage. The case continued, and child support was established.
Two years later, the parties are still in court. Father has filed multiple downward modifications, all of which were denied. Mother in turn has filed violations against father for nonpayment. There is also a custody and visitation matter that is still ongoing in Family Court. While all of this is going on, father pressed charges against mother for domestic violence, so now there is an ongoing case in Criminal Court. ACS also became involved, due to the Criminal Court matter, so at this point so much was going on that mother was forced to borrow money from friends and family to hire a lawyer. At no point was the case joined in IDV.
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Surrogate’s Court or Family Court?
Joe is the step-sibling to the subject child. The child and Joe share a father in common. Joe became the guardian of the child when their father passed away. At the time of his passing, the father had sole custody of the child and an active Order of Support against the non-custodial mother. In addition to being the child’s guardian, Joe is also the executor of his deceased father’s estate. Joe was never informed that there was an active Order of Support for his brother and that the Support Collection Unit had proceeded to close out the account once the father passed away.
Joe found out about the Order of Support when the noncustodial mother filed a downward modification on the order. At that point, Joe was instructed that he would have to file a brand new child support case, with him as the payee. Family Court could not do a change of payee from deceased father to Joe. In terms of the arrears that were owed to his father by mother, Family Court could not enforce these or transfer them to Joe. Joe had to file a separate petition through Surrogate’s Court as the executor to claim the unpaid arrears.
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Where Do I Go?
A young woman and her three younger sisters were adopted in December 2003 with adoption subsidy benefits provided on their behalf to their adoptive parents. Their adoptive father died in December 2012. Their adoptive mother died four years later. After the death of their adoptive mother, the young woman, now 23, assumed care of her three younger sisters (17, 17, 19). In January 2017 – a month after the passing of their adoptive mother – she went to the state courts in the Hudson Valley so she could become the legal guardian for her sisters. She was bounced around between Family Court and Surrogate’s Court for half a day until she was finally told to file papers in her attempt to become the legal guardian for all three of her sisters in Surrogate’s Court.
In August, 2017 – eight months later – the woman was then told to file for guardianship in Family Court. During this period her sisters’ original adoption subsidy payments from 2003 were suspended by NYS ACS in March 2017. In November 2017, the young woman was appointed temporary guardian of her sisters. In January 2018, she was appointed full guardianship of her twin sisters (now 18) but was denied guardianship of her (then 19 year old sister) who turned 21 ten days earlier in January 2018.
The purpose of applying for guardianship of her then 19 year old sister was to have the ability to apply for parent plus loans since her sister was a sophomore in college when their adoptive mother passed in 2016. Due to this huge mishap and the stopped payments by ACS, the woman requested a hearing to review the case at hand.
The delays that resulted from the current court structure caused a loss of social services benefits that the family was entitled to receive.
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Divorce & Child Support
Imagine you are going through a divorce with child support, custody, domestic abuse and guardianship issues on the table. That’s quite a burden for anyone to carry, and the current court structure only increases your burden and, quite probably, your legal expenses.
You’ll likely end up in Family Court to resolve the support and custody issues. But the Family Court judge can’t grant your divorce, so you will have to go to the Supreme Court for that. You may end up in County Court for the abuse issue. For any guardianship issues you’ll probably need to go to Surrogate’s Court as well. Multiple appearances before multiple judges in multiple courts can result in conflicting decisions on similar issues in the same case and cause delays that are not only costly and frustrating, but potentially dangerous when they involve domestic violence or placement of children in crisis.
– from Craig Doran, New York State Supreme Court justice and the administrative judge for the 7th District. In that capacity, he is responsible for overseeing court operations in the trial courts in Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates counties.
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Car Accident
Imagine you are in an automobile accident on a state highway, where you’re injured by a reckless driver at an unsafe intersection.
To sue the driver for damages, you’ll go to Supreme Court. But if you also want to sue the state for creating that dangerous intersection, you’ll need to go to a second court, the Court of Claims, which only hears cases against the state. The Supreme Court justice cannot hear your claim against the state, and the Court of Claims judge cannot hear your claim against the driver.And while there is a Supreme Court in every county, only one county in our district — Monroe — has a Court of Claims presence. So if you happen to live in Canandaigua, you can argue your Supreme Court case right in town. But you’ll have to travel to Rochester for the Court of Claims action. That one crash will bring you to two courts in two different courthouses with two different judges who will preside over two different trials.
– from Craig Doran, New York State Supreme Court justice and the administrative judge for the 7th District. In that capacity, he is responsible for overseeing court operations in the trial courts in Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates counties.
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Victim of Domestic Violence – Making it Worse
A victim of domestic violence calls the police. That starts a criminal case for assault…A victim of domestic violence calls the police. That starts a criminal case for assault and she can get a temporary order of protection (OP) from Criminal Court while that case is pending. She goes to Family Court for custody and child support and also files for an order of protection in Family Court (because the police told her to or because she doesn’t even know she has one from Criminal Court). She gets an immediate temporary order of protection from Family Court the day she files, and the child gets their own lawyer assigned for the custody case. The father files his own case for visitation and custody. The custody/visitation case takes at least a year and up to 3 years if an expert evaluator or a trial is needed.
In order to get divorced the victim and her husband have to go to Supreme Court. Depending on whether there are assets to divide which could take a year – assuming the other issues (child support and custody/visitation and the order of protection) were resolved in Family Court. Meanwhile the criminal case is ongoing but generally he might plead out and that case often ends in a few months.
OR the defendant files for divorce in the middle of the other actions to try to have the whole matter heard before a different judge in Supreme court (forum shopping) and they’re in two courts at once.
Meanwhile, the landlord is trying to evict her and the children because her husband is not paying the rent or because the police were called to the house too many times.
Four Courts
- Housing
- Family
- Criminal
- Supreme
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Useless Motions
Summary:
A mother is the custodial parent of two teenagers.
She seeks to modify a custody and visitation order from Family Court because the father is in prison for severe domestic violence against another partner and the children no longer wish to visit their father in prison every month.
The woman also filed for divorce in Supreme Court and requested that the Family Court proceedings and the Supreme Court proceedings be consolidated, so they could all be heard together.
Her husband opposed the consolidation request and also asked for the cases to be removed to a different county.
What SHOULD Have happened?
All of the cases should already have been able to be heard in one court, before one judge. Logically, these related cases should have been considered together without needing a motion to consolidate, which invited abuse of the court’s time and resources for no legitimate purpose.
Why Does This Matter?
The client is now litigating related issues in two separate courts and is awaiting a time-consuming transfer of the divorce case to another county, even though the cases will not necessarily be heard together there.
What DID Happen:
A mother is the custodial parent of two teenagers and has been estranged from her husband for several years. There is a history of domestic violence, and the father is incarcerated in a maximum security prison in upstate New York, with no possibility of release while the children are minors.
The parties have a custody and visitation order from Family Court that the client wished to modify because the children no longer wished to spend a weekend every month visiting their father in prison, who is incarcerated for severe domestic violence against another partner. The woman also wished to divorce her husband and filed for an uncontested divorce and sought consolidation of the cases.
The father contested the divorce from prison, asking for equitable distribution, and refused to consent to consolidation. He also refused to allow the client to proceed in NY County on her divorce because the parties had lived in another borough together. (The venue had no bearing on the husband as he was appearing telephonically from prison.)
The client is now litigating related issues in two separate courts and is awaiting a time consuming transfer of the divorce case to another county, even though the cases will not necessarily be heard together there.