Skip to main content
Frank Stephen Ieraci
Avvo
Pro

Frank Ieraci’s Answers

226 total


  • I am the biological father and have temporary custody, what happens at the permamency hearing?

    im the biological father of a 6yr old, have had temporary custody since august 2013. the permanency hearing for my sons mother is today, what do i have to do ,besides file for permanent custody, to make sure she doesnt get custody back? i have pro...

    Frank’s Answer

    The purpose of the permanency hearing is to set forth the plan for the children. They will probably set a goal of "return to an appropriate parent" or something similar. This plan is always subject to change. You should be there to reinforce your willingness and ability to be the permanent custodian of the children.

    If you have an attorney, talk about filing a custody petition and pushing it forward. If you don't have an attorney, you may want to consider getting one. While you are free to file for custody without a lawyer, mom undoubtedly has one. If she fights the petition, you may need to go to trial, even if Social Services and the children's attorney support you. You don't want to go to trial against her attorney on your own.

    See question 
  • If 2 parents have joint custody do they have to agree on child care?

    My soon to be ex and I are in a custody war. there is a temporary order in place stating that we have joint custody and I am listed as the residential custodian of our children ages 6 and 2. He is a firefighter and only works 5 days a month so the...

    Frank’s Answer

    You really need to discuss this with your own attorney who knows the situation better. If the days on which both of you work are assigned as the days of one or the other of you, then the parent who has the children on that day will make the arrangements. If those days are a sort of "no man's land" in which neither of you is designated as having access (a very unusual situation), then the residential custodian decides, preferably with input from the other.
    If the decision is yours, please be sure that you are being reasonable. You should not shut out his mother simply for the reason that she is HIS mother. If some legitimate reason exists for not putting her in the mix exists, fine. But to deny her access just because the children spend more time with dad is not a good idea. A mutually agreeable decision is usually best.

    See question 
  • Is it possible to appeal a child custody case? Or do I have to wait for change in circumstances.

    My son gets upset with the long weekends with his father. His father lied in court but my lawyer wanted to present all of his lies during the trial. The judge would not allow us to go to trial so I was not allowed to present the overwhelming amo...

    Frank’s Answer

    You may file a Notice of Appeal within 35 days of the date on which the Court or the opposing party mailed the order to you.n If you are within this time period, contact your attorney immediately to have the notice of appeal filed. If you are beyond this period, you may only file a new petition for modification upon a showing of a change of circumstances.

    See question 
  • I want to change my son's last name into mine.

    I gained soul and legal custody of my son two years ago. He is now 5 years old. My son's mother currently has no visitation rights. Judge ordered that she is only to be allowed supervised visitation; in addition, the judge granted me the right to ...

    Frank’s Answer

    The attorneys are correct. You may file a petition for a change of name of a minor. Normally, both parents consent. Since you do not have the consent of the mother, you will need to explain why the name change is in the child's best interests. Given the situation as you describe it, you should succeed.

    See question 
  • Can judge make custody determination in part based on a law or series of laws likely to change after award of custody?

    Son's mother and I are fighting for custody of our 4 year old. She's undocumented and we've shared custody since his birth but I was given temp custody when we separated early this year. Because of her legal status in part ,she really can't provi...

    Frank’s Answer

    While a judge may consider a law that has been passed but has not yet started, it would undoubtedly be reversible error for a judge to give much consideration to a hypothetical change in the law. Having said that, there are many factors to be considered in a custody case. It is also error to consider only the mother's status in the USA. It is possible for a judge to consider everything, including the mother's status, and award custody to the mother anyway.

    See question 
  • Do I have a Law suit against my foster care agency?

    In 2007 my children were removed for me and put in placement. in 2011 the foster agency tried to TPR me but the judge gave me a suspended judgement due to the agency's lack of proof of noncomplying. by 2012 i had completed everything i could com...

    Frank’s Answer

    You generally cannot sue the agency for what you describe. If you believe that you should be having more time with the children, you need to get back in front of the judge. Your attorney can file a motion to increase your visits or even ask for a return of the children. (Try to use section 1061 which doesn't require that stupid 30 day letter to Social Services.) Talk to your lawyer about it to see what can be done.

    See question 
  • How to file the harassment complaint in NY state?

    What is the procedure to file the harassment complaint in NY against the spouse living outside NY?

    Frank’s Answer

    A criminal complaint for aggravated harassment can be filed with the police. (I assume the harassment is taking place by telephone or other electronic means.) Of course the acts will need to constitute a crime.

    On the other hand, you can petition the Family Court for an Order of Protection against the spouse if the acts warrant it. You can seek an order that prohibits any contact. If it is violated, the offender can be prosecuted, even if in another state.

    See question 
  • If a father was gone 8 years out of my childs life being in prison can I terminate his Rights in new york state?

    He was in prison for Class E Felony Rape and Burglary..He has tried kidnapping her, and pyshically abused me and her.

    Frank’s Answer

    As the other attorneys have stated, you cannot terminate his rights as her father. However, if there is no order regarding visits, he has no enforceable right to see the child. He will need to file a petition for visitation. It seems likely that any visits will need to be supervised at the beginning. My experience has been that parents lose interest and stop going to the supervised visits for a while.

    While there is a presumption in favor of visitation, if his history has been particularly violent or dangerous, or if he has committed offenses against the child, it is possible for a court to determine that visits are not in the child's best interests. This is uncommon. But if the child has been traumatized by the father, or if she is an older teenager who refuses contact with the father, he may not get visits.

    Finally, if he is threatening harm to the child or committing some other offensive conduct toward her, you can seek an order of protection on her behalf.

    See question 
  • Can I move on the other side of the country with my daughter with my boyfriend/future husband?

    I am a single mother separated from my ex boyfriend and we have a child together. I am now in a relationship with a man but he is being relocated to Hawaii. We would like to take our relationship further and have my daughter and I move down ther...

    Frank’s Answer

    In order to move with the child, you need either the consent of the other parent or a court order allowing it. These are difficult cases. You would be mistaken to attempt to go forward without legal advice. There are many factors which the court must consider, and you probably won't even know what they are without a lawyer's help.

    If you can't afford an attorney, you should file a petition to modify your prior order in the Family Court. Then you should immediately ask for a court appointed lawyer. Your petition will probably need to be amended to include everything you will need to allege in order to have a chance at prevailing.

    You want to take care of this now. I don't recommend marrying someone moving to Hawaii unless you are willing to a) live apart from him, or b) Live in Hawaii with your husband while your daughter continues to live in New York.

    See question 
  • Chapter 13 bankruptcy--status of mortgage note as per recording in land records--new york property

    My mortgage note has no stamp/endorsement on it & has no other allonge attached to it.By mortgage document(assignment) filed in county land records bank A transfers both note & mortgage to bank B. As a result of this does my note still stay as bea...

    Frank’s Answer

    The note is a separate document from the mortgage. The note is your promise to pay the amount borrowed. The mortgage allows foreclosure and possession of the property if you default on the note. The note is not recorded, so there will be no recording information on it.

    An assignment of mortgage was recorded assigning all of your lender's rights under the note and mortgage to the new bank. Actually, it only gave public notice of the assignment of rights under the note. You were undoubtedly given separate notice if the transfer. Either in the note itself or in one of the dozens of other documents you signed at closing, there was an acknowledgment that the lender was able to transfer or sell the note and mortgage.

    Of course, this doesn't mean they didn't screw up the paperwork to the point where they cannot prove who owns the mortgage. This will make it difficult for them to foreclose. But banks have been much more careful about this since 2008. You really don't want to test your luck in a foreclosure action. You owe the money. You should just pay it.

    If you still have other questions, you should take all the documents to a local real estate attorney for advice.

    See question