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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Good morning Ely. My wife and i have a custody agreement but

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Good morning Ely. My wife and i have a custody agreement but live together at the moment. she is after taking off with my kid and has not go home and will not tell me where she is. Today is my day with my daughter. do i have any legal recourse?
Submitted: 11 months ago.
Category: Legal
Expert:  Thelawman2 replied 11 months ago.

Thelawman2 :

A custody agreement that is not ratified by a court does not really mean much in terms of being able to enforce it via legal recourse. However, you can still go to court and ask that they approve the custody agreement as in the "best interests of the child." You can use the custody agreement as evidence of what should be accepted by the court.

Customer:

the custody was decided in court

Customer:

we went to family court a year and a half ago

Customer:

i am going to the police station to file a report

Customer:

is there a another course of action i can take

Customer:

my wife has been smoking pot and and was found guilty of neglect over a year ago

Customer:

she still continues to smoke

Customer:

she has reported to dss to living with her parents so i removed her from the lease. is that legal?

Expert:  Ely replied 11 months ago.
Good morning and thank you for requesting me. Apologies for the above as that was not me.

Yes, you do have recourse here. However, can you please tell me what state this is in?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 11 months ago.

New York


 

Expert:  Ely replied 11 months ago.
Thank you. Someone in your situation does have recourse on two fronts.

CRIMINAL
It is unlawful to interfere with custody of a child in New York under N.Y. Penal Law §§ 135.45 and 135.50. She may be charged with a misdemeanor. The police will investigate and it is up to them whether or not to charge her.

CIVIL
Civilly, one has two options. One can file for a contempt hearing to punish the parent. The Court may then admonish, fine, and/or imprison them for the action at the discretion of the Judge.

Alternatively (or at the same time), one may file a Writ of Habeas Corpus under N.Y. DOM. LAW § 70 as a request from the Court to order the child released. The Writ acts more as an order for release; the contempt motion is for punishment - although either/both may be used.

Of course, this does not resolve your IMMEDIATE problem. If one feels that the parent has fled, then the above actions are warranted, arguably. If one feels that the parent has simply been aloof and forgotten, then perhaps upon finding them, the threat of filing the above may be enough to get the child.

I hope this helps and clarifies. Best of luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 11 months ago.

She smokes pot and drinks. she has been found guilty of neglect. do i have a case in getting sole custody of my daughter?


 

Customer: replied 11 months ago.

When i go to the police station what should tell them? that has taken daughter against my will?


 

Expert:  Ely replied 11 months ago.
Thank you for your follow up.

She smokes pot and drinks. she has been found guilty of neglect. do i have a case in getting sole custody of my daughter?

Possibly.

The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc.

One can petition for modification of custody and must show the following to be successful:
1) "best interest of the child" (with the factors above), and
2) "material change in circumstance" of the matter (such as her convictions, etc) which affect the circumstance. Friederwitzer v. Friederwitzer, 55 NY 2d 89 - NY: Court of Appeals 1982.

If her convictions and all these issues have risen SINCE the custody order was first put down, one can say that there is indeed a good chance.

When i go to the police station what should tell them? that has taken daughter against my will?

No, simply one needs to be open and explain the situation - that the child has been not given court-ordered custody and one fears the parent may be on the run and/or hiding the child (IF TRUE).

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

I am in the process of drafting separation papers through rocket lawyer. on her css paper she states that she lives with her parents. i contacted the landlord to remove her from the lease as she told me that she is using her parents address is that legal. she does not pay rent and frankly refuses to.

Customer: replied 11 months ago.

Can i request a hair folical test to see if she is using something other than pot?

Expert:  Ely replied 11 months ago.
Hello,

It really does not matter which address she is using for legal paperwork. Many people use a static address as their main address while moving around. What the Court will focus on is where she ACTUALLY lives. In addition, one has to serve her where she ACTUALLY is. As long as she is served, it does not matter that she is served at an address that does not match up to what she put down.

Can i request a hair folical test to see if she is using something other than pot?

YES - via a written motion once the modification petition has been filed (or via a written motion filed together with the modification petition).

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

I have to go to family court to file the petition? can draft the separation and give it to her myself? will filing an eviction notice help my case? there is no way to file an order of protection is there?


by the way thank you for all your help

Expert:  Ely replied 11 months ago.
Friend,

I have to go to family court to file the petition?

Yes.

can draft the separation and give it to her myself?

No, she has to be served either via certified mail, constable, or private process server. Service is very important. It is advisable to use counsel when filing for modification just so every step (drafting, filing, service, argument, etc) will be proper.

will filing an eviction notice help my case?

It may or may not considering that the elements of who is a better parent are subjective, although it definitely cannot hurt if the landlord decides to do this, but it is their decision. Goading someone into filing an eviction can backfire because one does not want to seem mean-spirited.

there is no way to file an order of protection is there?

No there is! During the modification petition via temporary orders, this is possible.

Or, one can file for such orders by themselves without association with the modification petition. See here.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

I got a dwi 18 months ago will this affect my case?


 

Expert:  Ely replied 11 months ago.
Friend,

Yes, in that the Court will consider that versus her record as well. But one DWI arguably does not hold a handle to ongoing drug abuse and a finding of neglect.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

I paid the rent at this address where she also lives. what is the best way get her out of here? the order of protection?


 

Customer: replied 11 months ago.

I am on probation for the dwi but was arrested for driving on a suspended license a week ago. this will hurt my case also right?

Expert:  Ely replied 11 months ago.


Is her name on the lease?
Customer: replied 11 months ago.

it was but a new lease it being send out without her name on it

Expert:  Ely replied 11 months ago.
Okay, well assuming that her name would NOT be on the new lease and once that lease is in effect, she would be a "tenant at sufferance." TECHNICALLY, you or the landlord can move to have her evicted.

HOWEVER, a faster way would be to ask the court to have her be ordered to move via temporary orders once the modification petition is filed and is pending.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

Are my chances good given the info i have provided in our opinion? would you advise contacting the police to have them talk to her?

Customer: replied 11 months ago.

I have a question unrelated to this situation can i ask you about it?

Expert:  Ely replied 11 months ago.
Friend,

From what you have told me, your chances are good given that she has a drug history and has been found to be guilty of neglect. So yes. However, I am not the Court, so please know that I am only going off what you have told me.

would you advise contacting the police to have them talk to her?

I cannot tell you what to do, however, it may be best to first figure out if she has simply forgotten the matter, or, really has decided to run.

If she has decided to run, then contacting the police may be a good idea.

Recall my earlier answer:

CRIMINAL
It is unlawful to interfere with custody of a child in New York under N.Y. Penal Law §§ 135.45 and 135.50. She may be charged with a misdemeanor. The police will investigate and it is up to them whether or not to charge her.

CIVIL
Civilly, one has two options. One can file for a contempt hearing to punish the parent. The Court may then admonish, fine, and/or imprison them for the action at the discretion of the Judge.

Alternatively (or at the same time), one may file a Writ of Habeas Corpus under N.Y. DOM. LAW § 70 as a request from the Court to order the child released. The Writ acts more as an order for release; the contempt motion is for punishment - although either/both may be used.

Of course, this does not resolve your IMMEDIATE problem. If one feels that the parent has fled, then the above actions are warranted, arguably. If one feels that the parent has simply been aloof and forgotten, then perhaps upon finding them, the threat of filing the above may be enough to get the child.


I have a question unrelated to this situation can i ask you about it?

Sure. I would ask that you open up a new thread, however, if possible. See here and use the window at the left to type out the question...

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87543
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 15 other Legal Specialists are ready to help you
Customer: replied 11 months ago.

Sorry i have been trying to catch up on some work i will definitely give you an A+ rating


 


 

Expert:  Ely replied 11 months ago.
Friend,

Thank you for your rating. If you have received an email from JustAnswer, please know that it was automatic. I would never "remind" you to rate, but I do thank you.
Customer: replied 11 months ago.

No problem I appreciate all your help


 

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