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Clifford J. Petroske
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Clifford Petroske’s Answers

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  • Can I move out with my daughter out of state since I have a full custody of her and her father has only visitations?

    Hello, I am a single mother of my daughter who is 4 years old. I have a full custody of my daughter, her father on the other hand only has visitation rights. My daughters father and I never been married. I am planning on getting married by the end...

    Clifford’s Answer

    Relocation is never an easy case, especially with a young child whose preference (if any) will be given little weight. Although the standard the court will use, generally speaking, is "the best interests of the child," and while the considerations outlined by Ms. Kassel in her answer are important in the final determination of the case, in my experience the most important factor is the sympathy your case generates. It is critically important to plan your case before you commence it. It should seem to the court that you have little choice but to move, and you should have a proposed parenting plan that shows how much you care about keeping the non-custodial parent in the child's life. Otherwise, you will loose the sympathies of the court, and seem like you are trying to destroy the child's relationship with the child.

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  • If I have sole custody in NYS is my ex entitled to use our child as a deduction on his taxes?

    I am the resident parent 100% He pays me child support and he pays half of day care directly to the school.

    Clifford’s Answer

    If you have residential custody of your child, and your court order says nothing about the tax exemption, then you are entitled to claim the exemption. If your ex also claims the exemption, the IRS will likely disallow it.

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  • After a long bitter divorce, my wife and I entered into a stipulation in Supreme Court, which was signed by both of us and the

    judge .Now, she is violating several aspects of the stipulation, namely matters involving visitation. Can recourse, at this point, be sought from the Supreme Court, or must the violations be addressed in Family Court?

    Clifford’s Answer

    It depends whether the judge has signed the judgment of divorce yet. If not, then your only recourse is Supreme Court. Also, until you have a judgment, your ability to enforce visitation is limited. Speak with an attorney to determine the best and most cost effective option.

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  • I am getting an uncontested divorce. Paper's are signed. I do not work is my husband still responsible to help support me?

    My husband & I are getting divorced as amicably as possible. We still live under the same roof as I am in the process of moving. We had a checking account together & he closed it without my knowledge. I do not work & receive a small pension which ...

    Clifford’s Answer

    I'm guessing you did not read the papers you signed. Many people who do not use attorneys make the mistake of letting their spouse do the paper work, and then just signing the papers put in front of them. If you signed a settlement agreement (variously called a stipulation of settlement, a separation agreement, or a marital settlement agreement), then your right to maintenance (alimony) may have been waived, which means your husband has no obligation to support you. The first step is to read what you signed. If there is a problem, see an attorney immediately. Time is critical.

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  • My divorce case is going to trial. A forensic psychologist will be testifying, as there are parenting concerns. In his report,

    there is confidential health info which I haven't given a release for, and don't intend to. He does sum up however, on the last page of his 63 page report, that I'm not a danger to our kids, and there is no reason why I can't spend more time with ...

    Clifford’s Answer

    If the forensic psychologist will be testifying, I expect there must be some disagreement between the parties regarding his conclusions. In the courtroom, the purpose of the report is to provide the party opposing those conclusions with material ( including observations, statements by children, parents and others, and data and interpretations of data from psychometric testing) that can be used on cross examination to challenge those conclusions. In other words, sometimes people (including psychologists) make conclusions that are not based on evidence, but are instead influenced by bias, emotional reasoning and other cognitive distortions. If the other side does not agree with the report's conclusions, the last thing they will do is stipulate (or agree) to just the conclusion of the report coming into evidence. Speak to your attorney about what remedies you may have for possible violation of your HIPPA rights for unauthorized use of medical information, as this may present another angle.

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  • During contested divorce, should I sign the HIPPA medical information release form at the request of the Plaintiff's lawyer?

    Contested divorce. I believe that HIPPA info is strictly confidential and I don't want to sign it. Should I inquire about a specific medical condition i might have the Plaintiff is concerned about? Please advise. Thank you

    Clifford’s Answer

    The various judicial departments in NYS have different rules concerning disclosure of medical records. In the Second Department which covers Richmond County, there is a right to disclosure of medical records which bear on an issue in the case. Examples include psychological records where custody is an issue, and medical records where some limiting medical condition is alleged that effects the ability to work, where maintenance is an issue. Speak to your attorney before signing any HIPPA form, but use of an authorization is standard practice, and failure to cooperate may result in sanctions.

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  • Are my parental rights being violated?

    My ex wife and I have joint custody of our 2 young children with her being the residential custodian. She constantly ignores me when I request information about my kids. She wont tell me who is babysitting, who is driving with them in the car, wha...

    Clifford’s Answer

    • Selected as best answer

    Absolutely. You can hold your ex-wife in contempt of court for violating your court-ordered joint custody rights. Depending on the circumstances, it may even be a good idea to couple that application with a petition seeking a modification of custody, awarding you sole custody (residential and legal). A secondary benefit of court intervention, is that it will likely persuade your ex-wife to start living up to her end of the joint custody bargain, long before the judge finally rules on the matter. This type of case is best planned with an attorney before the filing to gain maximum advantage with evidence and strategy.

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  • Can arrears from a default judgment be vacated 2 years after the default judgment was assigned by the magistrate?

    I missed a court date fro my child support hearing because my son's mother told me we wouldn't go to court anymore. Once I realized what she did I went to court and have been going to court for a little over a year and it's still not ending.

    Clifford’s Answer

    In New York State an application to vacate a default order or judgment must be brought within one year of the default. You must demonstrate a reasonable excuse for the default, as well as a likelihood of succeeding on the merits of your application. If its been more than a year the application could be based on a fraud theory (fraud in the inducement) which has a longer time period, but the facts regarding what your son's mother told you would have to be proved. Careful how you proceed. An application to vacate must be done by motion, not by petition, which generally requires a lawyer.

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  • Can i file a relocation petition

    my ex and I agreed in court that I would not relocate outside of 25 miles. this was 4 years ago. I want to relocate about 2 hours away. what are some reasons that would be granted or denied? can a cheaper living atmosphere be a reason my petition ...

    Clifford’s Answer

    Relocation cases are the most complicated and difficult to win of the custody cases. The outcome of the case is very fact sensitive and can depend as much on the proposed reasons for the move, as on the perceived motivation of the petitioner. The central concern of the court is always the effect of the move on the Relationship of the child with his father, and whether mid-week (or other) visitation will be lost. For the mother to demonstrate a strong enough reason to move, she will have had to exhaust all reasonable alternative solutions to her predicament (in your case, financial). These cases take considerable planning, first in assessing the likelihood of success, and then plotting the best steps to take pre-petition to assure you reasons are unassailable and the proposed outcome will benefit the child. An attorney is extremely valuable if you are serious about winning.

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  • Are assets a factor in determining child support

    My ex and I have an agreement that is not court ordered. He pays 25% of his income reliably but can't afford to pay for half of the kids health insurance. I recently asked him again and he says he is still unable to afford it. I found out t...

    Clifford’s Answer

    The non-custodial parent's ability to afford child support, including medical insurance, co-pays, and child care, is irrelevant. All of these obligations are determined on the basis of gross income without any consideration of whether your ex has sufficient net income after taxes, or enough after payment of his other bills. The fact that he (and/or his wife) purchased a house has no significance.

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