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How do I proceed in getting a support order modified? Do I request a law guardian for my son before the EBT and how?

Albany, NY |

My ex's spouse basically forced my son out of the house by making things so intolerable for him. Their claim now is that he is emancipated and has abandoned the relationship. When last in court it was determined that it would go to trial and my ex's attorney asked for and was granted an EBT with my son. I can not afford an attorney. What do I do? Can I be present for the EBT? Is he entitled to an attorney?

Attorney Answers 5

  1. Yes, you can be present for the EBT, and yes, the court should probably appoint an Attorney for the Child to represent your son; however, something about the information in your posting seems off. If your son is old enough to be living on his own, then it is unclear why child support should be in dispute, and certainly, it should not be an issue for trial!

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  2. Yes, you can be present for the EBT. Are you in Family Court or Supreme Court? Is this issue pending before a support magistrate or a Family Court Judge? If it is in Supreme Court or before a Family Court Judge, you should ask for a law guardian to represent your son.

    Your son needs to be able to verbalize all of the reasons why he left your ex spouse's house. For your ex to not pay support, he will have to prove that your son abondoned the relationship without any justification.

  3. Yes you may be present but may not say anything. Your son should be appointed an attorney. If your son were to move in with you the matter would be simplified. Discuss this with a family law attorney at a free consultation.

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  4. Yes, you can be present for the deposition and no your son will not be entitled to a court appointed attorney, since he is only a witness and not a litigant. If your son is living with you and now and you want child support, file a modification petition. So long as your son establishes that he wants a relationship with his father and he left his home because of something that the father did and not because he does not want to live by his father's rules, you should be ok.

  5. As others mention, the "tack" may depend on the venue (Supreme Court, Family Court, Support Proceeding). From your description, it sounds like you are a Respondent in a support modification matter. If that's the case, the Petitioner (the father) bears the burden of showing a substantial "change in circumstances". That is, HE has to prove his claim. In a support proceeding, a "mere" witness is not ordinarily entitled to a court appointed Attorney for the Child (aka, a "law guardian"). However, the proceeding necessarily implicates the child's interests -- both pecuniary, and statutory -- and, moreover, the circumstances are, for all intent and purposes, adversarial and hostile to the child's interests. It would therefore be in the child's best interests to be represented by counsel. In short, I would urge you to consult counsel. (I agree that you may be present at the deposition, since you are a party to the proceedings. You may not, however, interject or interrupt except, under the rules, to object to "the form of the question". You and the Attorney for the Child must, however, make certain that the record reflects that "all objections, except to the form of the question", are reserved. If counsel for the Petitioner will not agree to stipulate to the reservations, your counsel and, especially, the Attorney for the Child, should, in my view, refuse to go forward or, at least, make certain that the record reflects the rights reserved to seek precluding the transcript of the proceedings. (If counsel anticipates these sort of confrontations -- which can be obviated by pre-deposition agreement between counsel -- it is sometimes appropriate to ask the judge/magistrate ahead of time if he/she will agree to be available by speaker-phone to rule on objections that might crop up.)

    The responder, Christopher N. Luhn, Esq., has provided the response herein as a courtesy to the person posing the inquiry. Accordingly, Christopher N. Luhn, Esq. represents only that he has provided the within response and views in good faith, but based on limited information, and in no way represents that the response herein is correct, particularly given that it is based on limited information, and on facts not verified by him. Nothing herein, then, is intended to substitute for direct consultation, nor does it establish an attorney-client relationship between the inquiring party and Christopher N. Luhn, Esq.

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