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Nikki Jo Moreschi

Nikki Moreschi’s Answers

6 total

  • How can I get a restraining order against Husband and his live-in girlfriend

    Nikki’s Answer

    You may seek a family offense order of protection against your husband in Family Court if he has committed a crime against you, such as harassment. With respect to his girlfriend, you would have to seek an order of protection in criminal court, as she does not fall within the definition of a "member of the same family or household" under section 812 of the Family Court Act.

    With respect to your daughter, you do not state what offenses have been committed against her by the girlfriend entitling her to an order of protection. Name calling must rise to the level of harassment as set for the New York State Penal Law. "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:...3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Again, your daughter would have to seek the order of protection against the girlfriend in criminal court, as your daughter does not reside with her father in te same household.

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  • My ex wife is not allowing me to see my daughter because I have not able to fully cover my end of daycare even though I'm paying

    Nikki’s Answer

    Your ex wife can't withhold your visitation rights because you are unable to meet support obligations. They are two distinct, separate issues. If you already have a court order that sets forth custodial time, file a violation petition in Family Court. If you do not have an existing Order, file a Petition for Visitation in Family Court. She will not be successful in using the fact that you are behind in daycare reimbursement to prevent you from seeing your child.

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  • Wife took off with son I have custody of and in the divorce decree is supposed to live with me. She moved to NY I live in PA

    Nikki’s Answer

    If you want your son back, you should consult with your divorce attorney asap. He or she should file a petition in the Court that issued the divorce decree. If she files a petition in NY first, you would need to file in PA to have the matter transferred back to PA. You should also weigh the expense of filing the petition in PA if your son is going to graduate in May 2011 (I can't tell what year he is in from your facts) and would choose to stay in NY after graduating. In that case, by the time the matter is finally heard, it may be close to graduation and would only gain you a few months if succsessful. Interstate custody issues are governed by the UCCJEA and are complicated - you must consult with counsel.

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  • Pros and cons of separation versus divorce

    Nikki’s Answer

    A Separation Agreement can be a more cost effective way of obtaining a divorce. Instead of litigating how to divide the marital property, the amount of spousal support, child support or parenting time to be had, those issues are resolved between the two of you without the Court deciding FOR YOU. However, a legal separation is not a divorce. You still need to file for a divorce based on the Separation Agreement (for example, you both consent to grounds or you live separate and apart pursuant to the terms of the Separation Agreement for a year or more). The Separation Agreement requires an attorney to draft it and the other party should have an attorney review it before sigining.

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  • If we are not yet legally separated & spouse is involved with someone else is that considered adultery?

    Nikki’s Answer

    Technically, adultery is considered sexual relations with another outside the marriage. But really, it is only relevant if seeking grounds for divorce and/or use as leverage in determining issues of spousal support, child support, custody, etc. If you truly cannot afford a divorce, the adultery issue is not relevant. Your focus should be directed toward negotiating the best separation agreement possible so that you have money to get your own housing and stand on your own two feet. Consult with an attorney to ascertain your options. Also, see my article regarding what you need to know when contemplating divorce before meeting with an attorney.

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  • Can a non Custodial parent file Motion to relocate minor children to state she lives without other motions?

    Nikki’s Answer

    When you state you have "residential custody," I assume the child(ren) has lived with you as the custodial parent for the past 6 years and his/her residence address is the same as yours? If so, and if your ex filed motion papers in the state in which she is now located, you should attempt to have the matter transferred to the family court in the county in which the child(ren) resides. Once you are on "home turf," you would then argue that it is in the best interests of the child(ren) to remain with you, as that is all he/she has known. Add to that the fact your ex has had very infrequent contact and you have good arguments against the move. It is a balancing act that the court must conduct. Think about what she may allege to "tip" the scales in her favor (will she allege improper conduct on your part? alienation?). A lawyer in Colorado will be better able to assist, but these are the general arguments.

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