“My son’s father hasn’t had much of any relationship with my son for the last 4 months. My Fiance wants to adopt my son and he is so involved with him and is a great father. Is this possible?”

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In order for your Fiance to adopt your child, the father must either agree to give up his parental rights in writing or a basis must be established that would justify terminating the father’s parental rights. Under New York Statute, the court is authorized to terminate parental rights where there is a showing the parent abandoned the child. Other justifications include permanent neglect, mental illness, or upon a finding of a significant intellectual disability.
Based on the facts that you have described, it appears the father will not agree in writing to give up his parental rights and the only possible basis is abandonment.
Under New York law, a child is “abandoned” by his parent if the parent demonstrates an intent to give up his parental rights. This intent may be shown by the parent failing to visit the child and communicate with the child. The intent is particularly present where the parent has the ability to visit and communicate with the child but decides not to do so. However, unless the father provides evidence that he is not able to communicate with the child, the court will assume he is capable of doing so but chooses not to.
Based on the facts you have described, it is difficult to say whether or not there is enough to justify a finding that the father abandoned the child. Does he still speak with the child over the phone? How often does he? What are the reasons he has been unable to make the visits? All of these questions and many others are relevant to the determination. I suggest you consult an attorney who can provide you with sound legal advice based on the facts of your case. Because I do not have all of the necessary information, this certainly is not legal advice and should not be relied on as legal advice.

” can I move to Georgia my with my son, even if the father of my son who is not very involved, does not want my child to move?”

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First, if you decide to petition the court to relocate, the court must determine, based on all of the proof, whether you have established, by the preponderance of the evidence, that a proposed relocation would serve the child’s best interests. This basically means that moving to a new state would be beneficial for the child’s growth. If the move is part of providing the child with a better upbringing, from a financial perspective (i.e. better job, etc.), this is also a very relevant factor.

An additional factor to consider is whether the father would oppose such a relocation request. If the father is not very involved, perhaps he will not show up to court. If he does not show up to court, then you could have a relocation plan agreed without any acrimony.

Based on your question, however, it does appear the father would be against the proposal. If this is the case, the father would have to show why relocation does not serve the child’s best interest. In light of the fact that the father is not very involved in the child’s life, it may be difficult for him to make this argument. However, he could offer facts that are unrelated to his lack of involvement. For instance, if he believes the current environment provides greater stability, he could emphasize that point. However, if the father is not involved, the persuasive force of his arguments may be diminished.

Finally, when the custodial parent does move with the child to another state without the consent of the court or the non-custodial parent, it is very difficult for the court in New York to enforce the order. Once the custodial parent leaves, the legal proceedings can become very tricky and it can be very difficult to enforce the original order.

If you are facing a similar situation, please consult an attorney for legal advice. This is simply a very basic overview of some of the issues but I would need more facts to provide you with any kind of legal guidance going forward.

“I bought a house BEFORE the marriage, and AFTER we’ve been married for a while, I just decided to sell the house so I could use the money to buy a new house. Is the new house marital property?”

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First, it must be pointed out that this question does not include any cat or dog pictures which I believe is somewhat tragic. Notwithstanding that point, as always, the show must go on….

In the case above, where the husband sells a premarital residence and uses the proceeds to buy a new house during the marriage in his name, to preserve the separate property character of the home, the husband must show the exchange of funds from the old house to the new one. Now, this gets a little technical, but it is very important for counsel to not only obtain the necessary proof to establish the initial property as being separate, but also trace that property to try and demonstrate the party is entitled to retain at least some part of its initial form.

In a case where a husband sells a premarital residence and uses the proceeds to buy a house during the marriage in his name, he must show the exchange of funds from the old house to the new one. As always, seemingly innocuous details play a significant role. For instance, if the husband places the new home in joint name, the new house suddenly becomes marital property. However, the analysis does not stop there. If the husband can trace the purchase of the new house to a fund that was held separately, even though the new house is marital, the husband may obtain a “separate property credit.” This credit would be the amount contributed through the separate fund.

Again, in law it seems that very few things can be said without a limitation or a “but in this case.” Staying true to this apparent reality, many courts have limited the concept illustrated above (the “separate property credit”) to real property. In the case where separate funds are deposited into a joint bank account or the name on a separate account is changed to joint name, for example, a court may be reluctant to apply the concept above. One can imagine how such a concept if applied all over the place could create endless litigation with seemingly incomprehensible complexities.

So, the short answer to the question above: yes, the new house is marital property. However, if the New York court applies the separate property credit theory, then the party is nevertheless entitled to a credit that is equal to the amount of separate funds used.  Inevitably, the court will then have to look at the contributions of both spouses. The court could find that while the husband is entitled to a separate property credit, the wife is also entitled to the appreciation of the value of the home where she contributed to the improvements of the house. Bottom line, there is no short answer here and everything is very complicated. Please talk to an attorney who seems to know what he is doing if you find yourself in this kind of situation.

“As part of the divorce decree, can the court require my husband to pay for medical and dental expenses?”

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The short answer to this question is yes. However, consistent with most legal topics, the answer is a bit more complicated and little details can be significant. For instance, in one case where the husband had substantial independent assets, a court in the State of New York ruled that the husband pay all medical and dental bills along with maintaining all medical-health insurance for the benefit of the wife.

In another New York case, despite the husband having substantial assets, however, a court in New York ruled that regardless of the husband’s income and assets, a court in New York cannot order medical and dental expenses in a way that creates an “open-ended obligation.” The court emphasized that a provision which required the husband to “pay all unreimbursed balances for medical and dental expenses” was improper because it was simply too vague and encompassed too many costs.

Although income and assets are important considerations, along with the specificity of the provision, the reality is that courts in New York State have wide discretion in these matters. The outcome of a particular case may depend on which jurisdiction you live in as well as the particular judge assigned to your case. In most cases, it is best to work out an agreement with your spouse. Although it may not be easy, the end result will most likely be far more beneficial to both parties.

 

“I KNOW MY HUSBAND WILL AT SOME POINT INHERIT OVER 1 MILLION DOLLARS BUT HE DENIES IT AND I CANNOT FIND ANY SUPPORTING EVIDENCE. WILL A JUDGE CONSIDER THE FUTURE INHERITANCE IN AWARDING ME SPOUSAL MAINTENANCE?”

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Without supporting documentation, a court should not base its decision to grant spousal maintenance on the wife’s sheer speculation as to the husband’s possible future inheritance. As always, even the smallest factual changes can result in a very different outcome. That being said, in a case decided by a court in the State of New York, the New York court ruled that where the husband testified that he had no property, assets, or any kind of income besides his earnings of $50 a week, the wife’s sheer speculation that the husband had hidden substantial means and would likely inherit millions of dollars at some point in the future did not justify awarding the wife $350 per week in spousal maintenance.

It is worth noting the case above is distinguishable from the very common situation where one party fails to show up at a hearing and the party’s income is then “estimated” by the court. In this case, where the party ordered to pay does not show up, courts in New York State have wide discretion to “impute” income. In New York, courts may base the ruling on the average minimum wage in the state, the median income of people in the community, and a variety of other measurements.

The critical point here is that in the above case, unlike the case where the party ordered to pay fails to show up, one party alleges the other party has a certain amount of money or assets and the other party disagrees “on the record.” Although it is easy to get lost in legal terminology, when parties disagree “on the record” it simply means that one party alleges a fact in court and the other party disagrees with the fact. Although the parties may, in fact, disagree on how much money one of the party earns even where one of the party’s fails to show up, the critical point is that the disagreement is contested in court. To contest an issue in court, you or your attorney may submit a motion to the court fleshing out the dispute, or you may simply state that you contest the point in court.

 

“Are the shares in a cooperative apartment marital property where before the parties were married, one spouse purchased the shares to the apartment with the intent that the apartment would be used as the marital home?”

 

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In New York State, the likely answer to this question, although specific facts could change the outcome, is that the property is in fact separate property. In a case in New York, Nell v. Nell (decided by New York’s First Department), the court ruled the shares in the apartment were separate property where the husband, before the parties were married, purchased the apartment with his own funds; and renovated the apartment using his mother’s funds. The court emphasized that while the apartment was intended to be used as the marital home, under New York’s Domestic Relations Law § 236, the shares allocated to the apartment were acquired before the marriage and, therefore, are properly classified as separate property.

However, in the same case described above, illustrating the importance of specific facts, the New York court found that although the apartment shares did not constitute marital property under New York statute, the apartment’s appreciation in value directly caused by Defendant’s work and creative talents did in fact transform the heightened value to marital property.

“I purchased the marital home prior to the marriage but during the marriage I took out a home improvement loan and obtained a second mortgage which resulted in title to the property transferring to both parties. Under New York Law, is the home marital property?”

 

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This qestion mirrors a case decided by the New York Appellate Division. In Parsons v. Parsons, the wife had purchased the home prior to the marriage, however, during the marriage the title to the property was transferred to both parties. Following the transfer of title, the husband made all payments on the home improvement loan and the mortgage. Under these facts, the New York court ruled the property was now marital property. However, under New York law, the wife was nevertheless credited for the contribution of her separate property towards the creation of the marital asset.

In another case decided by a court in the State of New York, Solomon v. Solomon, the wife inherited property in the Virgin Islands. However, during the marriage, the husband made substantial physical and financial contributions. The New York court, in the case of Solomon v. Solomon, ruled the property, although originally separate property not entitled to distribution given that it was inherited, was transformed into marital property following the husband’s contributions.

Both of these cases, decided by courts in the State of New York, demonstrate that even though a home may start out as separate property, where the efforts of one spouse result in improvements to the property, courts in New York are more than willing to find the home transformed into marital property. In analyzing these cases in New York, it is clear the cases hinge on the specific facts in each particular case.

“I was at a friend’s house when the crime that I am accused of committing occurred. How do I plead this defense?”

 

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Under New York statute, CPL Article 250, the accused must give the prosecution written notice when raising the so called “alibi defense”. Under CPL 250.20(1), the prosecution may demand notice of any alibi defense and alibi witnesses. The accused, in turn, must provide the prosecution with notice of an alibi defense if the prosecution has served a demand for the notice, and if the accused intends to call alibi witnesses at trial.  The purpose of the New York statute is to provide the prosecutor with an opportunity to check on the information.

If the accused willfully fails to provide an alibi notice, under New York law, a judge in New York may preclude the admission of alibi evidence. However, the courts in the State of New York have discretion to extend the alibi notice period upon good cause shown for the delay. Critically, attorney(s) for the accused must do everything possible to follow deadlines to avoid adverse consequences.

Under New York State Law, If the accused does not intend to use an alibi defense at trial, it is most likely in the best interest of the accused to withdraw the notice, because the prosecutor may use the alibi notice as an admission against the defendant. However, the prosecutor may not use such a notice where it is withdrawn. This particular issues was the focus of case decided by the New York Court of Appeals.

 

“I don’t know what to do! My ex-spouse just refused me access to my child even though the court order says I get to visit her! What should I do?”

 

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The best course of action, based on current New York State law, is to bring a contempt action to enforce the parenting time order. It is important to submit the contempt of court petition to a Family Court. Under New York State law, Family Court has jurisdiction over such motions and, unlike filing a motion or petition in Supreme Court, filing a petition in Family Court is free.

Once you file the contempt petition, the court will likely schedule a “show cause” hearing to determine what exactly is going on. In an extreme case, a court in New York State could strip the parent, denying parenting time, of custody.

A court in New York State may also order “makeup” or compensatory parenting time. A New York court may conclude increasing parenting time is an appropriate sanction for your ex-spouse’s denial of parenting time. Finally, keep in mind, Judges presiding over Family Court in New York State have significant discretion in deciding these matters. As a result, at times, even when all the facts are known, it can still nevertheless be difficult to know what the court will order.

“Help! I have been held in jail for more than 45 days without a grand jury. What should I do?”

 

 

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Under New York’s Criminal Procedure Law 190.80, where a suspect has been held by a local criminal court for more than 45 days without the occurrence of any grand jury action, the court must release the defendant on his own recognizance.
In order to secure the suspect’s release, the attorney for the Defendant must draft a 190.80 motion, file the motion with the court clerk, and serve the motion on the District Attorney. Once properly served, the District Attorney has the opportunity to respond in writing to the motion. However, the District Attorney may also waive his or her right to respond.
Following the motion, the court will generally order a hearing where both parties can be heard on the subject. At the hearing, the attorney for the accused should make it clear if 45 days have passed and argue in favor of Defendant’s release.
In some cases, the District Attorney may argue through a written response or at the hearing, that, while 45 days did in fact pass, Section 190.80 is not triggered because the Defense attorney agreed to an “adjournment.” As an aside, an adjournment is essentially a “rain-check,” and once granted, another court date is scheduled. Critically, under Section 190.80, the only way a suspect may be held more than 45 days is if the suspect consents to being detained through a waiver of time limits, or the district attorney has “good cause” to hold the suspect longer. Only in the rarest cases will a District Attorney have such cause to override a suspect’s rights related to a speedy trial.