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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 38324
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Hello Dimitry, In the light of 3 more months: the judge

Customer Question

Hello Dimitry,

In the light of 3 more months: the judge said he was going to hear both Order and Custody the same day. He also said visitations would be decided then. However, because of now 4.5 months "temporary" order I cannot see my son. Can I officially move the court to either give me time for "temporary before hearing" visitations or set the trial date for Family Offense only as nothing else for this (no evaluation, arbitrage, etc) is required?
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your follow-up, Customer, and thank you again for requesting me to assist you further.

I was not able to open the thread that you posted to--for whatever reason it appears closed to me. Please know that I was not ignoring youl, I could not post a response.

To answer this question for you:
May I ask when this 'temporary" order was put in place?
Customer: replied 1 year ago.

Hello again Dimitry,


 


My wife filed the petition March 11, received the temporary order this day and the date for Return of Process was April 19. Then there was adjournment after adjournment after adjournment... Is there some sort of habeas corpus? Not in its exact sense of course - I saw a judge - but some rules regarding for how long it can be in effect without a trial?


 


It seems you could read my post and could not answer (you can always answer in our other conversation string) but just in case here is a copy:


 


In the light of 3 more months: the judge said he was going to hear both Order and Custody the same day. He also said visitations would be decided then. However, because of now 4.5 months "temporary" order I cannot see my son. Can I officially move the court to either give me time for "temporary before hearing" visitations or set the trial date for Family Offense only as nothing else for this (no evaluation, arbitrage, etc) is required?


If it's possible could you give me the exact line I should say like: "Your Honor, Because of mere allegations in Family Offense petition I cannot see my son for 4 months. (I move the court/I request...) Thank you. Customer

Expert:  Dimitry K., Esq. replied 1 year ago.

Customer,

Thank you for your follow-up. I will respond below to each point:


My wife filed the petition March 11, received the temporary order this day and the date for Return of Process was April 19. Then there was adjournment after adjournment after adjournment... Is there some sort of habeas corpus? Not in its exact sense of course - I saw a judge - but some rules regarding for how long it can be in effect without a trial?

A 'temporary' order lasts until trial is held, and some temp orders can lasts for months and months. What you can do is request that the emergency order be set aside based on lack of any sort of overt acts by you toward the ex or the child, and that as you complied in good faith, request that the judge 'reconsider' the formal emergency order so you could be reunited with your child, as it would be in that child's best interest.

 

 

 

It seems you could read my post and could not answer (you can always answer in our other conversation string) but just in case here is a copy:

 

 

 

In the light of 3 more months: the judge said he was going to hear both Order and Custody the same day. He also said visitations would be decided then. However, because of now 4.5 months "temporary" order I cannot see my son. Can I officially move the court to either give me time for "temporary before hearing" visitations or set the trial date for Family Offense only as nothing else for this (no evaluation, arbitrage, etc) is required?

You can--please look above to the language that you can use to seek to set aside the emergency order.

 

If it's possible could you give me the exact line I should say like: "Your Honor, Because of mere allegations in Family Offense petition I cannot see my son for 4 months. (I move the court/I request...) Thank you. Customer

Done above!

Good luck.

Customer: replied 1 year ago.

Thank you Dimitry,


 


I understood the idea but technicality, procedure and exact language are still obscure.


 


As for the procedure. "Set aside" and "reconsider" is the same or I first have to ask the judge to set aside the emergency order and then (when then?) ask to reconsider?


 


As for technicalities. Technically my wife asked to protect her from "murderer" and our son from "kidnapper." If we lived in separate apartments setting aside emergency order could be easier - it would just let me see my son at least from time to time. But we live in the same apartment and setting aside emergency order means


 


a) Murderer and kidnapper gets unlimited access to his perspective victims day and night


 


b) Technically there cannot be custody hearing at all then as we share the same residence


 


I am sure that my wife's attorney will bring at least the first point.


 


As for exact language. Is the following any good? I try to re-construct regular language the "court way" but most likely my attempts are clumsy so please correct me.


 


"Your Honor, because of mere allegations my son and I cannot see each other and my son when I speak to him via Skype constantly asks why I don't come home. At the time of filing Emergency Order Of Protection I was 3,700 miles away from the petitioner with no immediate plans to return. Since the time I returned to appear at Return Of Process there were no overt acts of any kind and I complied with the Order's conditions in good faith. It will be in the best interests of my son if we will be able to reunite so I am asking your Honor to set aside Emergency Order."


 


Finally, if it will be denied, may I ask for visitations then?


 


Thank you.


 


Best regards,


 


Customer

Expert:  Dimitry K., Esq. replied 1 year ago.

Customer,

Please alow me to clarify.


 

 

As for the procedure. "Set aside" and "reconsider" is the same or I first have to ask the judge to set aside the emergency order and then (when then?) ask to reconsider?

Different standards. Set aside is to dismiss. Reconsider is a request for the judge to reevaluate the initial order based on the initial factors to see if any error was made. So you can ask to set aside first based on current situation, and then ask to reconsider if he refuses to set it aside.

 

 

 

As for technicalities. Technically my wife asked to protect her from "murderer" and our son from "kidnapper." If we lived in separate apartments setting aside emergency order could be easier - it would just let me see my son at least from time to time. But we live in the same apartment and setting aside emergency order means

 

 

 

a) Murderer and kidnapper gets unlimited access to his perspective victims day and night

 

 

 

b) Technically there cannot be custody hearing at all then as we share the same residence

 

 

 

I am sure that my wife's attorney will bring at least the first point.

 

 

 

As for exact language. Is the following any good? I try to re-construct regular language the "court way" but most likely my attempts are clumsy so please correct me.

 

 

 

"Your Honor, because of mere allegations my son and I cannot see each other and my son when I speak to him via Skype constantly asks why I don't come home. At the time of filing Emergency Order Of Protection I was 3,700 miles away from the petitioner with no immediate plans to return. Since the time I returned to appear at Return Of Process there were no overt acts of any kind and I complied with the Order's conditions in good faith. It will be in the best interests of my son if we will be able to reunite so I am asking your Honor to set aside Emergency Order."

 

I would suggest you start the request with the 'set aside' language. Then you end with it again (the I.R.A.C. method I suggested). "You honor, I formally ask that you set aside the Emergency Order. Then you go into your body"

 

 

Finally, if it will be denied, may I ask for visitations then?

Yes

 

Customer: replied 1 year ago.

Thank you Dimitry,


 


Now it is clear... er. Difference in standards for me is elusive. "Set aside" means to dismiss but reevaluate means virtually the same only with reevaluation of initial factors first. But these nuances are not really practical and I am not after the law degree (although who knows. All I need for that is about three more wives). Based on your suggestion (thank you, XXXXX XXXXX to sound logical and formal) I assume I have to reconstruct the body a little too:


 


Your Honor, I formally ask that you set aside the Emergency Order. At the time of filing Emergency Order Of Protection I was 3,700 miles away from the petitioner with no immediate plans to return. Since the time I returned to appear at Return Of Process there were no overt acts of any kind and I complied with the Order's conditions in good faith. Because of mere allegations my son and I cannot see each other and my son when I speak to him via Skype constantly asks why I don't come home. It will be in the best interests of my son if we will be able to reunite so I am asking your Honor to set aside Emergency Order.


 


Is it correct in such form?


 


 


I don't know if you had a chance to see my reply in our other long string. I copied it here so I could finally rate you.


 


 


I still did not quite understand the last part. Probably my intellectual level IS deteriorating and I should start drinking as long time ago when I played preferans and lost, my partner said: "That's because you didn't drink. You cannot have clear thinking when sober." Well, it was in Russia...


 


 


 


Still, for my pathetically sober mind. Say, Order is dismissed. My wife was granted custody. I live in my apartment (or I can come to my apartment any time). My wife and child live in the same apartment. Theoretically "I am visiting" my son all the time he is in there (it is obviously included "overnight visitations"). So, what benefits will I get having scheduled time? To assure that if I'll want to take my son say, to a movie I'll have "reserved time" for it? Or for absolutely unlikely situation that my wife will move out and will live somewhere else?


 


 


 


Thank you.


 


 


 


Customer

Expert:  Dimitry K., Esq. replied 1 year ago.

Customer,

Yes, yes, much better! That flows better, as it has the request, the basis for the request, and the supporting argument.

As for your other thread, you likewise answered most of your own questions. If she moves out or denies you the ability to take the child somewhere, scheduled visitation would set aside this time so that should anything change in terms of housing (she moves out or you do), you would still have the ability to see the child and be with him.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 38324
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 4 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hello Dimitry,


 


Came back last night. Some controversial results - at least controversial for mere mortals.


 


Motion for production of medical records/forensic evaluation was partially granted ordering I provide a HIPAA complaint authorizations for SSI records and for Dr. Azbel's records to Petitioner's counsel within 10 days.


 


It was denied in the part of request of forensic evaluation.


 


After both attorney and I agreed to forensic evaluation (of all parties and my consent to pay 1/3) , forensic evaluation will be scheduled upon return AFC from somewhere in the end of August.


 


Judge said that my Memorandum was not sworn and because of this he had to grant the opponent's motion. Probably out of mercy he added that I can "submit something - presumably in opposition to the same request of production of medical records - sworn; he cannot say what it is since he is not supposed to give a legal advice"


 


So, a number of related questions to this subject:


 


 


1. What is that "something" sworn I may submit and how it can possibly affect the order if I have to authorize the production of the records within 10 days? (Opposition may get requested records but may not be authorized to use them then?)


 


Full text of Order:


 


"... provide a HIPAA compliant authorizations for SSI records and for Dr' Azbel's records to Petitioner's counsel within 10 days for the sole purpose of Petitioner's counsel annexing said authorizations to a judicial subpoena to be served upon those providers, and it further


 


Ordered, the subpoenas shall be returnable to the Court..."


 


2. What is HIPAA compliant authorization for SSI and for doctor's records, where can I get it (or can i type it?), should it be notarized and should I send it to the attorney or to the court? (I assume to the attorney)


 


3. These prehistoric SSI records contain numbers of evaluations all of which except one say I was in perfect mental health. May/should I request one for myself and how should I do it? Written request to SSI? Personal visit? Phone call? Combination of aforementioned?


 


4. I understand that opposition can use anything in conjunction with the current forensic evaluation but if even current evaluation report is not obligatory for the court, do 11-years records really matter? May I object their use (in court) in the light of current evaluation?


 


Another matter. My Motion for Relocation was denied because it had to be received 8 days before the court day. I was told by the Court/Motion Clerk it had to be received 3 days before the date (on July 29), weekends didn't count, it was received July 23 and the court day was August 2. Dispute on this ground is probably senseless but my mere mortal mind cannot understand how it could be at all granted or denied without granted custody first. At the moment I am the potential mentally ill murderer and kidnapper with no factual custody at all. Anyway, the question is:


 


5. Should I file the new Motion for Relocation? (new court date is October 17) Does it make any sense since it obviously will be denied if it will be decided before the custody decision? I understand that filing this motion after the custody decision may greatly lengthen the process but isn't it better to have no motion instead of denied motion?


 


And finally - my request to set aside the order. Judge didn't want to hear anything and said "denied" right after the first sentence. When I said "Then I formally ask to reconsider..." the judge said I was free to file any motion like Motion to show cause. This particular Motion to show cause when so common looks very useless for my "non-court" oriented mind. Even if the cause was obscure initially, the petitioner always can file amended petition/complaint. So, the question:


 


6. Is it possible to file some motion that at least MAY have a practical effect - to set aside/dismiss the Order instead of order to reconstruct/amend/whatever the original petition? Can ANY such motion have such effect in reality? After all, so far all petitioner has to present is valid allegations with minimal evidence - not to prove them yet. Taken in isolation small paragraph serves this purpose and when it becomes very questionable within the whole correspondence, disputing it with other evidence moves the subject from initial allegation to proving them at trial. I don't want to add something practically senseless for a sake of process and "to make my records." It takes a lot of time and efforts not to count "exciting" 12-hours back and forth trips from upstate. Actually I need it only for such "unprofessional" and ridiculous reason to finally see my son.


 


I'll ask one miscellaneous question separately to be able to rate you.


 


Thank you.


 


Best regards,


 


Customer

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Customer. This will take a bit to respond as you have a ton of questions here.

First of al the forensic evaluation is a big win. You managed to keep them out of your medical records for the most part, which was as we discussed. The current evaluation is as expected, and it also sounds as if the judge did not appear or create a one-sided case.

You posted:

1. What is that "something" sworn I may submit and how it can possibly affect the order if I have to authorize the production of the records within 10 days? (Opposition may get requested records but may not be authorized to use them then?)

It sounds as if he is discussing an ability for you to file a sworn affidavit with the information that you had in the document that the judge did not permit you to enter. This will act as a formal statement and will allow you to have the record updated with the information.

 

 

Full text of Order:

 

 

 

"... provide a HIPAA compliant authorizations for SSI records and for Dr' Azbel's records to Petitioner's counsel within 10 days for the sole purpose of Petitioner's counsel annexing said authorizations to a judicial subpoena to be served upon those providers, and it further

 

 

 

Ordered, the subpoenas shall be returnable to the Court..."

 

 

 

2. What is HIPAA compliant authorization for SSI and for doctor's records, where can I get it (or can i type it?), should it be notarized and should I send it to the attorney or to the court? (I assume to the attorney)

I believe that this i the form:

http://www.nycourts.gov/forms/hipaa_fillable.pdf

Once it is filed, there is no need to share it with the attorney, you can simply send him the records received.

 

 

 

3. These prehistoric SSI records contain numbers of evaluations all of which except one say I was in perfect mental health. May/should I request one for myself and how should I do it? Written request to SSI? Personal visit? Phone call? Combination of aforementioned?

Personal visit would be best. You could then, in person, sign the release and obtain copies of their records.

 

 

4. I understand that opposition can use anything in conjunction with the current forensic evaluation but if even current evaluation report is not obligatory for the court, do 11-years records really matter? May I object their use (in court) in the light of current evaluation?

All records matter. But you can use the current records once they exist as a basis of the current state of mind, which is what the courts tend to focus on.

 

 

Another matter. My Motion for Relocation was denied because it had to be received 8 days before the court day. I was told by the Court/Motion Clerk it had to be received 3 days before the date (on July 29), weekends didn't count, it was received July 23 and the court day was August 2. Dispute on this ground is probably senseless but my mere mortal mind cannot understand how it could be at all granted or denied without granted custody first. At the moment I am the potential mentally ill murderer and kidnapper with no factual custody at all. Anyway, the question is:

 

 

 

5. Should I file the new Motion for Relocation? (new court date is October 17) Does it make any sense since it obviously will be denied if it will be decided before the custody decision? I understand that filing this motion after the custody decision may greatly lengthen the process but isn't it better to have no motion instead of denied motion?

You can refile the motion, absolutely. If you feel that the motion was not reviewed on the merits but was instead denied based on a blown deadline, you can ask the coruts to re-evaluate the request.

 

 

 

And finally - my request to set aside the order. Judge didn't want to hear anything and said "denied" right after the first sentence. When I said "Then I formally ask to reconsider..." the judge said I was free to file any motion like Motion to show cause. This particular Motion to show cause when so common looks very useless for my "non-court" oriented mind. Even if the cause was obscure initially, the petitioner always can file amended petition/complaint. So, the question:

 

 

 

6. Is it possible to file some motion that at least MAY have a practical effect - to set aside/dismiss the Order instead of order to reconstruct/amend/whatever the original petition? Can ANY such motion have such effect in reality? After all, so far all petitioner has to present is valid allegations with minimal evidence - not to prove them yet. Taken in isolation small paragraph serves this purpose and when it becomes very questionable within the whole correspondence, disputing it with other evidence moves the subject from initial allegation to proving them at trial. I don't want to add something practically senseless for a sake of process and "to make my records." It takes a lot of time and efforts not to count "exciting" 12-hours back and forth trips from upstate. Actually I need it only for such "unprofessional" and ridiculous reason to finally see my son.

You found the weakness here. Courts are predisposed to hear anything they deem to be factually useful, so unless you can point out that there is no factual disparity between the parties (and in this case there obviously is), the court may set aside. I there is a conflict between the parties, the courts will agree to hear the case. So if you are objecting without real basis, it will be denied. Courts tend to hate setting aside past orders unless there is a true change, and unless there is a true misapplication of current law, the order remains. Once the judge said 'denied', unless you choose to appeal higher, it won't be granted.

Good luck.

Customer: replied 1 year ago.

Thank you Dimitry,


 


Sorry for a ton of questions - all of them resulted from rather technicalities I am not familiar with and some of them are contradicting. I posted one much simpler question separately so I will be able to rate.


 


Some clarifications (some probably because I still cannot find my head after all these night trips)


 


1. Sworn Affidavit. Should it contain the same information/body/case law as in Memorandum in Opposition but be titled differently? Affidavit of what? What is the practical use of it? Ability to object admission of medical records into evidence on the stated basis?


 


2. HIPAA form. Maybe personal visits to SSI office and to the doctor's office are the best but it requires another trip to NYC and may include "we cannot give it to you now, come back this day/doctor is on vacation" and various other things. Unfortunately I also have a work to do because as I found recently we are not in communism yet and everything costs money. Doing this by mail is much more preferable. At the same time I must give the attorney something within 10 days and mailing request/getting it back may take more time. Will I comply with the Court Order if I'll fill this authorization and will mail it to the attorney? I assume I have to fill 2 of them - one for the SSI and one for the doctor - correct? Or - will I comply with the Court Order if I will fill and mail it to SSI/doctor myself at the same time informing the attorney that the request was filled and mailed and he will receive these records as soon as SSWI/doctor will mail them to him?


 


Can I request that records be sent to the attorney (in one form) and to me (in copy of this form)? Another words, can I send 2 Authorization Requests to both SSI and to the doctor?


 


Do I have to notarize my signature? Include copy of the Court Order?


 


There are 2 options in the form: Medical Records from that to this date (will it be OK if I'll put 1997 - present day?), Entire Medical Record plus options Alcohol/Drug Treatment, Mental Health Information, HIV. I assume the less the better and since nothing particular was specified by the court, I should check the first Medical Records only without options even though it seems helpful to get a records stating there was no alcohol/drug treatment - am I correct?


 


Should I mark "At request of individual" or "Other?" (Or "At request of individual" for myself and "Other" for the attorney?)


 


 


As for the relocation motion. Yes, I understand I can re-file it and I understand I can ask the court to re-evaluate it but I totally cannot understand how it at all can be evaluated without hearing the custody case first. Besides, it will be evaluated by the current judge when then it will be a trial judge. Again, in the present moment this motion means that possibly mentally ill potential murderer and kidnapper is asking a court's permit to take his perspective victim out of the country. I suppose there is a practical sense in this motion but with my "out-of-the-court-logic-reasonable-common-logic" I cannot get it. Without any doubts this motion will be denied. Why do I still need to file it?


 


(So far I got one positive effect from filing this motion: in her reply my wife stated that "she recently started establishing residence in LIC" - meaning my apartment where I brought her 8 years ago and where she lived ever since. "Recently" in this context very transparently means "since I managed to kick my husband out of his apartment with the help of Order I received).


 


I don't want to take your time regarding possible motion to set aside/reconsider Temporary Order. I may spend a great deal of time searching various case law and arguing that something was not quite complied with current law but if I understood you correctly my chances here are close to zero since even redacted evidence without concrete threat and vague language is quite enough for the allegations - am I correct?


 


Thank you.


 


Best regards,


 


Customer


 


 

Expert:  Dimitry K., Esq. replied 1 year ago.

Customer,

Not a problem, I can only imagine how complicated all this becomes and how much more work you are being exposed to for your own defense.

To answer:

1. Sworn Affidavit. Should it contain the same information/body/case law as in Memorandum in Opposition but be titled differently? Affidavit of what? What is the practical use of it? Ability to object admission of medical records into evidence on the stated basis?

The affidavit should have your contest to their complaint laid out based on the law that you found, it has to be very short in length, and it has to be signed by you stating that these objections are in your best knowledge. I am still surprised the judge denied it, to be frank. The practical use of it is to go on record with your assertions and claims, and to show that they were objected to based on comments of the other party.

 

 

2. HIPAA form. Maybe personal visits to SSI office and to the doctor's office are the best but it requires another trip to NYC and may include "we cannot give it to you now, come back this day/doctor is on vacation" and various other things. Unfortunately I also have a work to do because as I found recently we are not in communism yet and everything costs money. Doing this by mail is much more preferable. At the same time I must give the attorney something within 10 days and mailing request/getting it back may take more time. Will I comply with the Court Order if I'll fill this authorization and will mail it to the attorney? I assume I have to fill 2 of them - one for the SSI and one for the doctor - correct? Or - will I comply with the Court Order if I will fill and mail it to SSI/doctor myself at the same time informing the attorney that the request was filled and mailed and he will receive these records as soon as SSWI/doctor will mail them to him?

You would need to fill out separate forms, correct. But simply filling out a request is not enough, you have to actually obtain some sort of a response. If that fails, you can then forward your requests to the attorney and state that you complied in good faith and that as soon as you obtain the records, he will receive them from you. Under HIPAA agencies have up to 30 days to provide records so sending the statement about requests may end up taking place, but it is not the primary document you are supposed to provide.

 

 

Can I request that records be sent to the attorney (in one form) and to me (in copy of this form)? Another words, can I send 2 Authorization Requests to both SSI and to the doctor?

You can request that the records be sent to multile recipients, but the records would be the same.

 

 

 

Do I have to notarize my signature? Include copy of the Court Order?

Yes and a yes.

 

 

There are 2 options in the form: Medical Records from that to this date (will it be OK if I'll put 1997 - present day?), Entire Medical Record plus options Alcohol/Drug Treatment, Mental Health Information, HIV. I assume the less the better and since nothing particular was specified by the court, I should check the first Medical Records only without options even though it seems helpful to get a records stating there was no alcohol/drug treatment - am I correct?

That is correct, the less the better always.

 

 

Should I mark "At request of individual" or "Other?" (Or "At request of individual" for myself and "Other" for the attorney?)

This is still a request by individual--you yourself are the one requesting the records.

 

 

 

As for the relocation motion. Yes, I understand I can re-file it and I understand I can ask the court to re-evaluate it but I totally cannot understand how it at all can be evaluated without hearing the custody case first. Besides, it will be evaluated by the current judge when then it will be a trial judge. Again, in the present moment this motion means that possibly mentally ill potential murderer and kidnapper is asking a court's permit to take his perspective victim out of the country. I suppose there is a practical sense in this motion but with my "out-of-the-court-logic-reasonable-common-logic" I cannot get it. Without any doubts this motion will be denied. Why do I still need to file it?

You do not, but the logic is based on whether or not you prevail in the future--if this motion is granted today, you would not have to file it later if you end up prevailing court.

 

 

 

(So far I got one positive effect from filing this motion: in her reply my wife stated that "she recently started establishing residence in LIC" - meaning my apartment where I brought her 8 years ago and where she lived ever since. "Recently" in this context very transparently means "since I managed to kick my husband out of his apartment with the help of Order I received).

 

 

I don't want to take your time regarding possible motion to set aside/reconsider Temporary Order. I may spend a great deal of time searching various case law and arguing that something was not quite complied with current law but if I understood you correctly my chances here are close to zero since even redacted evidence without concrete threat and vague language is quite enough for the allegations - am I correct?
It is enough for the allegations, correct--it ends up being your responsibility to contest it which is why the motion to set aside i highly unlikely to be granted.

Good luck.

Customer: replied 1 year ago.

Thank you Dimitry,


 


My clarifications getting smaller in length, so I will be able to spread them between here and another separate question I will be able to rate.


 


1. How should I title the Affidavit? Affidavit in opposition to Motion for Forensic? Will it be not denied then because of Motion of Forensic was already decided?


Short in length... Difficult. I can remove all regarding why case law cited by the opposition are different from my case but my own case law quotas are numeric and have more than a short sentence. If I'll redact them they will loose sense. I assume this affidavit still will be 2-3 pages. Is it OK?


I hope I don't need to hire someone to send a copy to attorney and notarize his signature; I can just mail the copy myself - correct?


I believe unlike a motion this affidavit is not to be heard/decided - it is just for the records - so I don't have to put return date (next court date) - correct?


 


 


 


2. My pathetic common logic still doesn't let me understand how motion for relocation can possibly be granted. If it is (in theory) is granted, it (in theory) let a person that doesn't have (at least full) custodial rights and who according the Order of Protection must not interfere with child's custody a permit to take a child out of the country. He did. Then (in theory) another party was granted a custody. Then the other party has to file a motion to relocate the child back? I understand that if my motion was granted it would save me a great amount of time in case I won but it is simply impossible. What benefits can I get filing "denied in advance" motion and what am I missing? And - should I do it "against all odds" anyway?


 


Thank you.


 


Best regards,


 


Customer

Expert:  Dimitry K., Esq. replied 1 year ago.

Customer,

Thank you for your follow-up. Glad to help.

You posted:

1. How should I title the Affidavit? Affidavit in opposition to Motion for Forensic? Will it be not denied then because of Motion of Forensic was already decided?

Titling it simply as an "Affidavit of Record" is likely sufficient. There is no reason to deny it unless the attorney decides to be a jerk since the subject matter was already decided.

 

Short in length... Difficult. I can remove all regarding why case law cited by the opposition are different from my case but my own case law quotas are numeric and have more than a short sentence. If I'll redact them they will loose sense. I assume this affidavit still will be 2-3 pages. Is it OK?

That should be fine.

 

I hope I don't need to hire someone to send a copy to attorney and notarize his signature; I can just mail the copy myself - correct?

That should be fine also, there is no requirement of specific service.

 

I believe unlike a motion this affidavit is not to be heard/decided - it is just for the records - so I don't have to put return date (next court date) - correct?

That is also absolutely correct.

 

 

2. My pathetic common logic still doesn't let me understand how motion for relocation can possibly be granted. If it is (in theory) is granted, it (in theory) let a person that doesn't have (at least full) custodial rights and who according the Order of Protection must not interfere with child's custody a permit to take a child out of the country. He did. Then (in theory) another party was granted a custody. Then the other party has to file a motion to relocate the child back?

Yes, in theory.

 

I understand that if my motion was granted it would save me a great amount of time in case I won but it is simply impossible. What benefits can I get filing "denied in advance" motion and what am I missing? And - should I do it "against all odds" anyway?

The best benefit is time. Plus, the order in place now is a temp order that will be removed or amended regardless by the courts when the judge will decide upon your actual custodial split. This motion, if already in place, will save you time from filing again and restarting the process. This, essentially, makes this more 'efficient'.

 

Good luck.

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