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On Behalf of The Law Offices of Joseph H. Nivin, P.C. On August 30, 2016, the New York State Court of Appeals fundamentally changed the dynamic of family law concerning same-sex couples and child custody.  Until that day, a non-biological parent from a same-sex relationship who did not adopt the child had no standing to seek custody or visitation.  That meant that if the couple broke up, the child’s biological parent could cut his or her ex-partner out of the child’s life permanently.  The other parent had no recourse. In The Matter of Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903, the Court of Appeals held, “Where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law 70.” That means that if a person can prove that he or she agreed with the biological parent to conceive and raise a child as a couple, then that person can seek custody and visitation in Family Court, whether or not he or she adopted the child. Did you recently leave a same-sex relationship?  Are you trying to get custody or visitation?  The Law Offices of Joseph H. Nivin, P.C. can help!  Call now for a consultation at a reasonable rate.

“Choosing to divorce or remain in a marriage is a difficult decision that requires time for careful thought,” says attorney Joe Nivin. “Sometimes married couples will choose to live apart before deciding 
to make such a big life altering change.” In the state of New York, a legal separation can be used as a short or long term alternative to divorce. An experienced family attorney can help with a legal separation agreement that provides spousal support, direction on the use of marital assets and property and help define the responsibility of marital debts and other obligations. While the couple is living apart, a legal separation in New York can protect the benefits of marriage such as health insurance. A legal separation agreement can also be used as a post-nuptial (postnup) contract. In
 addition, if a couple eventually makes the decision to divorce, some of the legal issues that were worked out during the separation can make the divorce less difficult, as many of the agreed on items can transfer to the divorce agreement. The Law Offices of Joseph H. Nivin, P.C. can start working for you today to negotiate the terms and prepare all the necessary paperwork for a legal separation agreement.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Nia Guzman is suing Chris Brown for more child support. “Nia is absurd. She’s been living in California for months and has established residency there just so she could take Chris to court in LA for more child support! The case is already in effect and Nia wants more than what they agreed upon in Houston. She wants more — way more — because Royalty deserves every opportunity that life has to offer. Chris continues to flash his gold and diamonds around on Instagram, and him buying a new Ferrari every day infuriates Nia. She’s trying to secure Royalty’s future and she wishes Chris would understand that,” a source close to Chris tells HollywoodLife.com exclusively. Attorney Joseph Nivin says: Where do I start? When you have someone who wants more child support from you, it is a terrible idea to: (1) flash your gold around on Instagram, (2) add your diamonds to your Instagram, (3) buy a new Ferrari (at all, and doing this in multiple is icing on the cake), and (4) publicizing your new Ferraris. Chris Brown needs legal advice, but that’s the least of his problems.  He desperately needs common sense. Now, let’s talk about what Chris is paying. According to the article, Chris Brown is ordered to pay $2,500.00 per month, plus 100% of his daughter’s medical care, education, and child care. The $2,500.00 per month is known as “basic support.”  That is supposed to cover the payor’s contributions to daily expenses: food, shelter, clothing, school supplies, utilities, etc.  This number is a percentage of the payor’s income (after deductions, including Social Security and Medicare taxes, and NYC or Yonkers taxes).  That percentage is 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% and up for five or more children. Where a parent is paying $2,500.00 per month in basic support for one child, that generally means that the parent has a solidly upper-middle class income.  However, there are a lot of people out there paying this amount who could only dream of affording one Ferrari. The “add-on” expenses, medical care, education, and child care, are determined by what percentage of the combined parental income is earned by the non-custodial parent.  For example, if the non-custodial parent earns $60,000.00 per year, and the custodial parent earns $40,000.00 per year, then the non-custodial parent earns 60% of the combined parental income.  Therefore, the court will order that parent to pay 60% of the child’s unreimbursed medical expenses, and 60% of the child care expenses.  The court can, but does not have to, order the parent to also pay 60% of the child’s educational expenses. The court will usually expect the custodial parent to work and earn an income.  Therefore, the non-custodial parent usually does not have to pay 100% of the add-on expenses like Chris Brown does.  However, there are many non-custodial parents who earn much less than Chris Brown who have to pay for close to all of the add-ons, often because the custodial parent’s earning capacity decreased because of child-rearing responsibilities. For these reasons, there are many men who pay as much in child support as Chris Brown, but cannot afford to enjoy the lifestyle that he brags about on Instagram. If you have a child support case, don’t be like Chris Brown.  If you’re going to brag about your riches, you better be ready to turn them over to your child’s mother. Visit our family law page for more help. http://nivinlaw.com/practice-area/family-law/

On Behalf of The Law Offices of Joseph H. Nivin, P.C. The following article was written by Joseph H Nivin, Esq., from the Law Offices of Joseph H. Nivin for NY Metro Parents. Every parent wants his or her child to receive the best possible opportunities. Many families do not believe that their children will achieve their full potential without a private school education. For single-parent families, paying for private school becomes even more arduous than it is for families where the parents live together. The purpose of this article is to provide information to single parents seeking support to pay for private school tuition. In situations where the child lives primarily with one parent and the parents are divorced or separated, the non-custodial parent–the one who the child does not live with–will almost always be required to pay basic child support, which is based upon a percentage of the parent’s income. Child support that is specifically for private school tuition, the focus of this article, is in addition to basic child support. One of the most important factors that the Court will consider will be whether the child has already been attending private school. In some cases, parents who pay child support had agreed during the marriage that their children would attend private school, but then no longer wish to pay for it once they separate from their spouses. Courts will generally order people to continue to pay for a portion of their children’s private school tuition if they paid for it willingly when they lived with the other parent. Courts will also consider whether the non-custodial parent participated in discussions about whether the child would attend private school. The court will consider the circumstances of those discussions, as well as the status quo, when it determines how much weight to give to these prior conversations. In one recent case, an appellate court did not award support for private school tuition even though the parents had discussed sending the child to private school; in this case, these discussions took place when the child was just a few months old, and the child was not even school age at the time the case came before the court. Another court declined to order the non-custodial parent to contribute to private school tuition in a case where the parties signed a separation agreement saying they would only share tuition expenses if they agreed that their children would attend private school. Their previous discussion of the issue—prior to the agreement–had been only hypothetical, focusing on the merits of private school vs. public school. The court found that the conversation would likely have gone a different way if the parents had this discussion after they signed the separation agreement. However, in those cases where (1) the parents agreed to send their children to private school, (2) the children attended private school for years during the marriage, and (3) the non-custodial parent only raises an objection when he is being asked to pay child support, the court will generally order the non-custodial parent to contribute to the tuition payments. Courts are more likely to issue awards of child support for private school tuition in cases where the parties enjoyed an affluent lifestyle and/or high spending patterns during the marriage. Courts are also likely to issue orders for contributions to religious private schools where religion is an integral part of the family’s lifestyle. Fighting with the other parent of one’s child is among the most stressful, emotionally draining experiences that a person can imagine. These cases are trying not only for parents, but for children as well. While the unpleasant nature of this litigation cannot be eliminated, it can be lessened when the court makes sure that the child receives the support necessary to continue to attend the same school he or she had been going to previously and to receive an education that maximizes his or her prospects for a successful future.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. PRESS RELEASE March 21st, 2016—The National Advocates organization is pleased to announce that Mr. Joseph H. Nivin has been selected for inclusion into its Matrimonial and Family Law specialty, an honor given to only a select group of lawyers as recognition of their superior skills and qualifications in the field. The selection for this exclusive list is limited to only 100 attorneys per state or highly populated region who have demonstrated their extraordinary abilities with superior results, a high level of peer respect and client satisfaction. The National Advocates is a professional organization comprised of premier lawyers from across the country who have demonstrated exceptional qualifications in their area of the law, including Matrimonial and Family Law, Employment Law, Social Security Disability Law, Immigration Law, Bankruptcy Law and Estates, Wills and Trusts. The National Advocates provides accreditation to these distinguished attorneys, and provides essential legal news, information, and education to trial lawyers across the United States. With the selection for membership by The National Advocates, Mr. Nivin has shown that he exemplifies superior qualifications, leadership skills, and case results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Advocates is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the lawyers chosen to represent their state. To learn more about The National Advocates, please visit: http://www.thenationaladvocates.org.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. In the Matter of Marina B. Brandt, appellant, v Robert A. Peirce, respondent. D’Agostino Law Office, P.C., Pleasantville, N.Y. (Joseph Rizzo of counsel), for appellant. Daniel Lawrence Pagano, Yorktown Heights, N.Y., for respondent. DECISION & ORDER Appeal from an order of the Family Court, Westchester County (Michelle I. Schauer, J.), dated December 3, 2014. The order denied the mother’s objection to an order of that court (Esther R. Furman, S.M.), dated October 23, 2014, which determined that the father was owed a child support credit in the amount of $12,800. ORDERED that the order dated December 3, 2014, is affirmed, with costs. The parties entered into a stipulation of settlement that was incorporated but not merged into their judgment of divorce dated July 14, 2008. The separation agreement required that the father pay child support to the mother in the sum of $2,800 each month for the parties’ two children. The separation agreement also provided that the children’s anticipated college expenses would be paid for, after any grants, awards, or scholarships, with specified custodial “529 accounts” that had been “established by the ather” for the children’s benefit prior to the parties’ divorce (hereinafter the 529 accounts). In the event that the 529 accounts were insufficient to cover the children’s college expenses, the father would then use a specified money market account, designated as the father’s separate property, to cover the costs. In the event all of the above accounts were not enough to cover the entire cost of the children’s college expenses, the parties would split the remaining college expenses equally. The separation agreement also stated in a separate paragraph that the father would receive a “dollar for dollar credit” in child support for “every dollar he spends” on the “hildren’s college, room and board.” The parties’ son went away to college in the fall of 2011. The father paid his college tuition and room and board expenses for the 2011-2012 academic year in full from the 529 account established by the father for the benefit of the son. The father also decreased his monthly child support payments to the mother at this time. The mother filed a petition for enforcement of the parties’ separation agreement, claiming that the father should pay the full $2,800 per month in child support. The father moved for summary judgment determining that he was entitled to child support credits. He argued that he properly decreased his child support payments pursuant to the grant to him of a child support credit in the separation agreement because he paid the son’s college expenses from the son’s account. The mother opposed the father’s motion and cross-moved for summary judgment on her petition. She argued that the crediting language in the separation agreement applied only to property expressly identified in the separation agreement as the father’s “separate property,” and was not intended to apply to the 529 accounts. The Support Magistrate agreed with the mother, and granted her cross motion for summary judgment in an order dated January 4, 2013. The father filed an objection to the order of the Support Magistrate, which the mother opposed. Upon review, in an order dated February 28, 2014, the Family Court granted the father’s objection, agreeing with his contention that he was entitled to the child support credit, and remitted the matter to the Support Magistrate for further proceedings. Upon remittal, in an order dated October 23, 2014, the Support Magistrate determined that the father was owed a child support credit in the amount of $12,800. The mother filed an objection to this order. In an order dated December 3, 2014, the Family Court denied the mother’s objection. The mother appeals from the order dated December 3, 2014, and her sole argument on appeal is that the Family Court erred in determining that the separation agreement provided for the father to receive a child support credit for payments he made for the son’s college expenses from the son’s account. We agree with the father that the Family Court properly determined that he was entitled to a child support credit for payments that he made for the son’s college expenses from the 529 account. A separation agreement incorporated but not merged into a judgment of divorce “is a contract subject to principles of contract interpretation” ( Matter of Bokor v Markel, 104 AD3d 683, 683; see Matter of Gravlin v Ruppert, 98 NY2d 1, 5; Matter of Tammone v Tammone, 94 AD3d 1131, 1133). In interpreting a separation agreement, ” he words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties’” ( Matter of Bokor v Markel, 104 AD3d at 683, quoting Matter of Tillim v Fuks, 221 AD2d 642, 643; accord Eckman v Eckman, 123 AD3d 969, 970). ” Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used’” ( Salinger v Salinger, 125 AD3d 747, 748, quoting Ayers v Ayers, 92 AD3d 623, 624). ” ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’” ( Willsey v Gjuraj, 65 AD3d 1228, 1230, quoting Henrich v Phazar Antenna Corp., 33 AD3d 864, 867; accord Matter of Tammone v Tammone, 94 AD3d at 1133). The parties’ separation agreement provides that “he father will receive a dollar for dollar credit in Child Support for every dollar he spends on the Children’s college, room and board.” The plain and natural meaning of the parties’ words entitles the father to the credit for “every dollar” that the father “spends” on the children’s college, room, and board, without limitation ( see Salinger v Salinger, 125 AD3d at 748; Matter of Bokor v Markel, 104 AD3d at 683). The question presented here is whether the father “spends” money on the children’s college expenses when the payments are made from the 529 accounts. The mother contends that the separation agreement was not intended to provide for a child support credit under these circumstances because the agreement did not designate the 529 accounts as the father’s “separate property.” Despite the lack of this express designation, however, the parties do not dispute that the father is listed as the owner of the 529 accounts and that he received the money used to fund it as an individual inheritance from his late brother, thereby constituting his separate property ( see Overton v Overton, 118 AD3d 858, 858-859). Under these circumstances, where the father paid for the son’s college expenses from the 529 account that the father set up and funded with his inherited money, the father is “spending” money on the son’s college expenses and is entitled to a child support credit in accordance with the plain meaning of the separation agreement. The father’s remaining contentions are without merit. MASTRO, J.P., BALKIN, SGROI and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Casler v Casler 2015 NY Slip Op 06653 Decided on August 26, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on August 26, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN ROBERT J. MILLER, JJ. 2013-09796 (Index No. 12567/97) Diane Casler, appellant, v Carl Casler, respondent. Diane Pizzolo, named herein as Diane Casler, Cortlandt Manor, N.Y., appellant pro se. Bodnar & Milone LLP, White Plains, N.Y. (Erik Kristensen of counsel), for respondent. DECISION & ORDER Appeal from an order of the Supreme Court, Westchester County (Colleen D. Duffy, J.), dated August 9, 2013. The order, insofar as appealed from, denied the plaintiff’s motion to hold the defendant in contempt for his failure to provide her with proof of his procurement of life insurance naming the parties’ child as an irrevocable beneficiary, for an upward modification of the defendant’s child support obligation, and for an award of an attorney’s fee. ORDERED that the order is affirmed insofar as appealed from, with costs. The defendant’s child support obligation was set forth in a stipulation dated January 19, 1998, which was incorporated but not merged into the parties’ judgment of divorce. Since the stipulation was executed prior to the effective date of the 2010 amendments to Domestic Relations Law § 236(B)(9)(b)(2) ( see L 2010, ch 182, § 13), in order to establish her entitlement to an upward modification of the defendant’s child support obligation, the plaintiff had the burden of establishing a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the agreement was not fair and equitable when entered into ( see Gribbin v Gribbin, 126 AD3d 938, 939; DelGaudio v DelGaudio, 126 AD3d 848, 849; Matter of Gadalinska v Ahmed, 120 AD3d 1232, 1233; Matter of Dimaio v Dimaio, 111 AD3d 933, 933; see also Kaplan v Kaplan, 130 AD3d 576; Zaratzian v Abadir, 128 AD3d 953; Matter of Corbisiero v Corbisiero, 112 AD3d 625, 626). As relevant here, the plaintiff did not establish that the reduction in the defendant’s visitation with the child constituted a substantial and unanticipated change in circumstances that created the need for modification of his child support obligation (cf. Matter of Gravlin v Ruppert, 98 NY2d 1, 3-6; Matter of McCormick v McCormick, 97 AD3d 682). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for an upward modification of the defendant’s child support obligation. The Supreme Court also properly denied that branch of the plaintiff’s motion which was to hold the defendant in contempt for failing to comply with the terms of the parties’ stipulation, which required the defendant to show that he was maintaining a $200,000 life insurance policy naming the parties’ child as an irrevocable beneficiary. To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct ( see Halioris v Halioris, 126 AD3d 973; El-Dehdan v El-Dehdan, 114 AD3d 4, 16; Bernard-Cadet v Gobin, 94 AD3d 1030, 1031). Here, the plaintiff did not meet her burden of establishing all of the aforementioned elements of civil contempt by clear and convincing evidence. Specifically, she failed to show any prejudice she suffered as a result of the defendant’s failure to provide the documentation she requested. Accordingly, the Supreme Court properly declined to hold the defendant in civil contempt for disobeying this provision of the stipulation. The Supreme Court providently exercised its discretion in denying the plaintiff’s request for an award of an attorney’s fee ( see Freight Brokers Global Servs., Inc. v Molfetta, 90 AD3d 828, 828-829). The plaintiff’s remaining contentions are without merit. MASTRO, J.P., LEVENTHAL, ROMAN and MILLER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Matter of Anastasia L.-D. (Ronald D.) Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg of counsel), for appellant. Deanna Everett-Johnson, Brooklyn, N.Y., for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Patricia Colella of counsel), attorney for the child Anastasia L.-D. Michael A. Fiechter, Bellmore, N.Y., attorney for the child Amethyst L.-D. In two related child protective proceedings pursuant to Family Court Act article 10, the petitioner, Administration for Children’s Services, appeals from an order of the Family Court, Kings County (Turbow, J.), dated July 12, 2013, which, after a fact-finding hearing, dismissed the petitions. Ordered that the order is affirmed, without costs or disbursements. The petitioner, Administration for Children’s Services (hereinafter ACS), filed petitions against the father, alleging that he had neglected the subject children, Anastasia and Amethyst, through the infliction of excessive corporal punishment upon Anastasia and his own use of marijuana. The father allegedly hit 14-year-old Anastasia with a belt several times when she refused to give him her cell phone upon his request, causing bruises to her body. Also, the children had allegedly observed the father smoking marijuana on prior occasions. The father testified at a fact-finding hearing that he was attempting to discipline Anastasia for cutting school by taking away her cell phone, and that he hit her with the belt when she refused to give him the phone and charged at him. He testified that corporal punishment was not his normal mode of discipline. The father testified that he had smoked marijuana, but did not smoke it regularly, and that he never used or was under the influence of marijuana in the children’s presence. ACS’s contentions are without merit. Parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare. However, the use of excessive corporal punishment constitutes neglect ( see Family Ct Act § 1012 ; Matter of Matthew M., 109 AD3d 472; Matter of Delehia J., 93 AD3d 668; Matter of Padmine M., 84 AD3d 806; Matter of Alexander J.S., 72 AD3d 829). The petitioner has the burden of proving neglect by a preponderance of the evidence ( see Family Ct Act § 1046 ; Matter of Jacob P., 107 AD3d 719; Matter of Amerriah S., 100 AD3d 1006; Matter of Deon S.-G., 95 AD3d 1340). Although a single incident of excessive corporal punishment may suffice to support a finding of neglect, there are instances where the record will not support such a finding, even where the parent’s use of physical force was inappropriate ( see Matter of Crystal S., 74 AD3d 823). Under the circumstances presented here, the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment upon her. ACS failed to establish that the father intended to hurt Anastasia, or that his conduct demonstrated a pattern of excessive corporal punishment ( see Matter of Nicholas W., 90 AD3d 1614; Matter of Alexander J.S., 72 AD3d 829). There was insufficient evidence that Anastasia suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect ( see Matter of Christian O., 51 AD3d 402). Given Anastasia’s age, the circumstances under which the altercation occurred, and the isolated nature of the father’s conduct, the court did not err in dismissing the petitions ( see Matter of Rosina W., 297 AD2d 639 ; Matter of Amanda E., 279 AD2d 917 ). Furthermore, the Family Court correctly found that there was no basis for concluding that the father derivatively neglected Amethyst, who was in the room during the incident, inasmuch as ACS did not prove by a preponderance of the evidence that the father neglected Anastasia ( see Matter of Alexander J.S., 72 AD3d 829; Matter of Corey Mc., 67 AD3d 1015). The focus of the inquiry required to determine whether derivative neglect has occurred is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood ( see Matter of Monica C.M., 107 AD3d 996; Matter of Jelani B., 54 AD3d 1032). Since we have determined that the father did not neglect Anastasia in the first instance, we conclude that the father’s parental judgment was not so impaired as to create a substantial risk of harm to Amethyst, thus rendering Amethyst a neglected child within the meaning of Family Court Act § 1012 (f) (i) (B) ( see Matter of Jelani B., 54 AD3d 1032). The Family Court found that there was no evidence that the father smoked marijuana other than outside the children’s presence, as he testified, and there is no basis in the record to disturb that court’s credibility determination. ACS failed to prove by a preponderance of the evidence that the father’s occasional marijuana use outside of the children’s presence caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the subject children ( see Matter of Diamond J., 102 AD3d 784). Imminent danger must be near or impending, not merely possible ( see Matter of Anna F., 56 AD3d 1197). Furthermore, no evidence was elicited as to the duration, frequency, or repetitiveness of the father’s marijuana use ( see Matter of Jeffrey M., 102 AD3d 608; Matter of Anastasia G., 52 AD3d 830). Balkin, J.P., Chambers, Austin and Roman, JJ., concur.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. 2013-06224 DECISION & ORDER In the Matter of Lisa Christy, appellant, v BrianChristy, respondent.(Docket Nos. V-14614-12, V-14615-12, V-14616-12) Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Katherine M. Saciolo ofcounsel), for appellant.Golden Hirschhorn LLP, Garden City, N.Y. (Alan K. Hirschhorn of counsel), forrespondent.Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.In related custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated May 10,2013, which granted the father’s motion, made at the close of the mother’s case, to dismiss herpetition to modify the custody provisions set forth in a stipulation of settlement dated November 17,2011, which was incorporated but not merged into the parties’ judgment of divorce entered June 11,2012, to allow her to relocate from New York to Arizona with the subject children, and, in effect,dismissed the proceeding.ORDERED that the order is affirmed, with costs.On a motion to dismiss a petition, made at the close of the petitioner’s case, the factsmust be viewed in the light most favorable to the petitioner, accepting his or her proof as true andaffording him or her every favorable inference that reasonably can be drawn therefrom (see MatterJanuary 29, 2014 Page 1.MATTER OF CHRISTY v CHRISTYof Mineo v Mineo,96 AD3d 1617;Matter of Stone v Wyant,8 AD3d 1046).Here, even when viewed in the light most favorable to the mother, the evidence shepresented on her case failed to establish, prima facie, that her proposal to relocate to Arizona withthe subject children was in their best interest (see Matter of Tropea v Tropea,87 NY2d 727, 739).The mother failed to provide sufficient proof that the move would enhance the children’s liveseconomically. The mother is currently living in the home of her second husband together with sixchildren, three from each of their prior marriages. The mother, an unemployed educator, testifiedthat she had received a job offer in Arizona, contingent on her obtaining reciprocal certification.She, however, did not testify about what salary she expected to earn. Further, the mother’s secondhusband, who has a secure job in New York earning between $60,000 and $80,000, annually, doesnot have a job waiting for him in Arizona (see Matter of McBryde v Bodden,91 AD3d 781, 782).Without proof of the second husband’s potential job prospects in Arizona, or proof of the mother’searning potential as a teacher in Arizona, any contention that the children would enjoy a higherquality of life there is speculative.enhanced emotionally by the move. There was no testimony regarding how the children felt aboutthe proposed move, in terms of how they believed it would affect their relationship with their fatheror any of their friends. In fact, there was no evidence as to whether the subject children even desiredto move (see Matter of Harrsch v Jesser,74 AD3d 811, 812).If relocation of the subject children across the country were permitted, the frequencyof contacts between them and the father, who, inter alia, currently visits with them three weekendsa month, would be significantly reduced (see Matter of McBryde v Bodden,91 AD3d at 782;Rubiov Rubio,71 AD3d 862, 863;Matter of Martino v Ramos,64 AD3d 657, 658;cf. Matter of Sahagunv Alix,107 AD3d 722, 723).The mother failed to show that the relationship between the subjecthildren and the father could be preserved through suitable visitation arrangements, particularlygiven her financial circumstances.Accordingly, the Family Court properly granted the father’s motion to dismiss themother’s petition at the close of her case (see Matter of Rotering v Rotering,6 AD3d 718).BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.ENTER:Aprilanne AgostinoClerk of the CourtJanuary 29, 2014 Page 2.MATTER OF CHRISTY v CHRISTY

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Matter of Mandal v Mandal Amy Mulzer, Brooklyn, N.Y., for appellant. Teresita Morales, Jamaica, N.Y., attorney for the children. In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (McGowan, J.), dated November 19, 2012, as, without a hearing, awarded custody of the subject children to the father. Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an evidentiary hearing to be held with all convenient speed on the issue of custody and a new determination of the petition thereafter; and it is further, Ordered that pending the hearing and new determination, the subject children shall remain in the custody of the father. An award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child ( see Matter of Zaratzian v Abadir, 105 AD3d 1054; Matter of Peek v Peek, 79 AD3d 753, 753-754 ). “Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” ( Matter of Peek v Peek, 79 AD3d at 754 ; see Matter of Labella v Murray, 108 AD3d 547; Matter of Perez v Estevez, 82 AD3d 1106). Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing ( see Matter of Labella v Murray, 108 AD3d at 547; Matter of Swinson v Brewington, 84 AD3d 1251, 1253 ; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). It is not necessary, however to conduct such a hearing “where the court already possesses sufficient relevant information to render an informed determination in the child’s best interest” ( Matter of Labella v Murray, 108 AD3d at 548 ; see Matter of Perez v Estevez, 82 AD3d at 1106). Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the subject children ( see Matter of Labella v Murray, 108 AD3d at 548; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 ; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). In addition, in issuing its determination, the Family Court failed to make ” ‘specific findings of fact with respect to the issue of custody,’ ” as it is required to do ( Matter of Savoca v Bellofatto, 104 AD3d at 696, quoting Audubon v Audubon, 138 AD2d 658, 659 ; see Mauter v Mauter, 309 AD2d 737, 738 ). Accordingly, the matter must be remitted to the Family Court, Queens County, for an evidentiary hearing on the issue of custody and a new determination of the petition thereafter ( see Matter of Labella v Murray, 108 AD3d at 548; Matter of Perez v Estevez, 82 AD3d at 1106). Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ., concur.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Matter of Shiffman v Handler Bondi Iovino & Fusco, Garden City, N.Y. (Desiree Lovell Fusco of counsel), for appellant. Pearlman, Apat, Futterman Sirotkin & Seinfeld, LLP, Kew Gardens, N.Y. (Martin Seinfeld, Richard H. Apat, and Jordana Seiden of counsel), for respondent. In a family offense proceeding pursuant to Family Court Act article 8, the daughter appeals from an order of protection of the Family Court, Nassau County (Corrigan, J.), dated April 5, 2013, which, after a hearing, and upon a finding that she committed the family offense of disorderly conduct, directed her, inter alia, to stay away from the mother until and including April 4, 2014. Ordered that the order of protection is reversed, on the facts, with costs, the petition is denied, and the proceeding is dismissed. The family offense of “disorderly conduct” is not limited to disorderly conduct in a public place (Family Ct Act § 812). Each of the requisite elements of that offense must be established by a preponderance of the evidence ( see Family Ct Act § 832; Matter of Bah v Bah, 112 AD3d 921, 922 ). This includes the mens rea of that offense, namely that, when engaging in certain defined conduct, the actor did so “with intent to cause public inconvenience, annoyance or alarm, or recklessly creat a risk thereof” (Penal Law § 240.20; see Matter of Cassie v Cassie, 109 AD3d 337, 340 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Alonso v Perdue, 112 AD3d 920; Matter of Saldivar v Cabrera, 109 AD3d 831, 832 ; cf. Matter of Wan-Su Li v Feng, 45 AD3d 775, 776 ). Here, in the exercise of our factual review power, we conclude that the mother did not sustain her burden. The evidence established that the daughter went to the mother’s home, stood on the front porch, knocked on the front door and windows for a period of nearly an hour, and telephoned the mother’s home phone number twice, but it did not establish the daughter’s requisite intent or recklessness with respect to causing public inconvenience, annoyance, or alarm ( see Family Ct Act § 812; Penal Law § 240.20). The mother presented no evidence in support of the mens rea element, such as the proximity of the porch to neighbors or other members of the public, or that the conduct otherwise could have caused public inconvenience, annoyance, or alarm ( Matter of Cassie v Cassie, 109 AD3d at 341-342; cf. Matter of Wan-Su Li v Feng, 45 AD3d at 776). Accordingly, we reverse the order of protection, deny the petition, and dismiss the proceeding. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. In a divorce matter where the marital residence is at issue, the Court should give the parties the option of retaining exclusive occupancy of the residence upon payment of the marital debts, within a reasonable amount of time,” says attorney Joseph H. Nivin. SUPREME COURT OF THE STATE OF NEW YORK Leigh Ann Lamparillo, respondent-appellant, v Gregory Lamparillo, appellant-respondent. Levinson, Reineke & Ornstien, P.C., Central Valley, N.Y. (Justin Kimple of counsel), for appellant-respondent. Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), for respondent-appellant. DECISION & ORDER In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Orange County (Marx, J.), dated April 16, 2012, as, upon findings of fact and conclusions of law dated April 16, 2012, and a decision dated November 22, 2011, made after a nonjury trial, (a) directed him to pay maintenance to the plaintiff in the sum of $550 per week for a period of three years, (b) directed the sale of the marital residence and the equal division of the net proceeds between the parties after the payment of all marital debt, including credit card debt in the amount of $22,648, and after payment of $7,000 to the plaintiff for her one-half interest in the household furnishings and other items, (c) failed to give him the option of purchasing the plaintiff’s interest in the marital residence, and (d) awarded him a separate property credit of only $180,000 for alleged separate funds he contributed to the construction of the marital residence, and directed that the credit be satisfied by his parents’ repayment to him of a loan made to them by the parties, and the plaintiff cross-appeals, as limited by her brief, from so much of the same judgment as awarded the defendant a separate property credit of $180,000 for funds he contributed to the construction of the marital residence. ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by (1) deleting the provision thereof awarding the defendant a separate property credit in the sum of $180,000 and directing that the credit be satisfied by his parents’ repayment to him of a loan made to them by the parties, and (2) deleting the provision thereof directing the sale of the marital residence; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith, and thereafter, the entry of an appropriate amended judgment. When determining a maintenance obligation, “here a party’s account of his or her finances is not believable, the court may impute a true or potential income higher than that alleged” ( DiPalma v DiPalma, 112 AD3d 663, 664; see Kessler v Kessler, 111 AD3d 895). Here, the Supreme Court providently exercised its discretion in imputing income to the defendant based on, inter alia, information he provided in a bankruptcy petition ( see Duffy v Duffy, 84 AD3d 1151, 1152; Greisman v Greisman, 98 AD3d 1079, 1080).” he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts’” ( DiBlasi v DiBlasi, 48 AD3d 403, 404; quoting Wortman v Wortman, 11 AD3d 604, 606). In view of the relevant factors, including the income of the parties, the length of the marriage, the present and future earning capacity of the parties, and the ability of the party seeking maintenance to become self-supporting, the Supreme Court providently exercised its discretion in awarding the plaintiff weekly maintenance in the sum of $550 for a period of three years ( see Domestic Relations Law § 236; Duffy v Duffy, 84 AD3d at 1152; Groesbeck v Groesbeck, 51 AD3d 722, 723; Schwalb v Schwalb, 50 AD3d 1206, 1210). The Supreme Court awarded the defendant an equitable distribution credit in the sum of $180,000 for a contribution of alleged separate property he made toward the construction of the marital residence. To satisfy the credit, the court directed that $180,000 the parties loaned to his parents should be repaid only to him. However, while the defendant testified that he used his separate funds to pay for materials used to construct the marital residence, he offered no additional evidentiary support for his claim ( see McLoughlin v McLoughlin, 63 AD3d 1017, 1019; Romano v Romano, 40 AD3d 837, 838; Murphy v Murphy, 4 AD3d 460, 461). Since the defendant failed to meet his burden of establishing that the $180,000 was separate property, he was not entitled to a credit. Consequently, the $180,000 the parties loaned to the defendant’s parents should be repaid to both parties. The Supreme Court providently exercised its discretion in equally allocating responsibility for certain credit card debt in the amount of $22,648 that the plaintiff incurred prior to this action, as the plaintiff demonstrated that it constituted marital debt ( see Alleva v Alleva, 112 AD3d 567, 569; Rodriguez v Rodriguez, 70 AD3d 799, 802). Contrary to the defendant’s contention, the Supreme Court providently awarded the plaintiff $7,000 for one half the value of, inter alia, the furnishings in the marital residence and certain other items. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the sale of the marital residence without first offering the defendant the option of retaining exclusive occupancy of the marital residence by purchasing the plaintiff’s interest therein ( see Aebly v Lally, 112 AD3d 561, 563; Ierardi v Ierardi, 151 AD2d 548, 548-549; see also Bartek v Draper, 309 AD2d 825, 826). In order to exercise the option to purchase the plaintiff’s interest, the defendant shall, within three months after service upon him of a copy of this decision and order with notice of entry, pay off the remaining balances of all existing marital debts on the property, including the mortgage and the home equity loan. Upon her receipt of proof of satisfaction of these debts, the plaintiff shall convey her interest in the marital residence to the defendant, and the Supreme Court shall recalculate the equitable distribution award and make appropriate adjustments, taking into account the exercise of the option and satisfaction of the marital debts on the property and the conveyance of title. In the event that the option to purchase is not successfully exercised by the defendant within the time allotted, the marital residence shall be sold in accordance with the terms set forth in the judgment appealed from. Within 30 days of service upon him of a copy of this decision and order with notice of entry, the defendant shall notify the Supreme Court and the plaintiff’s counsel, in writing, whether he intends to exercise the option. In the event the defendant fails to do so, he shall be deemed to have waived the option ( see Aebly v Lally, 112 AD3d at 563-564). MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.