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Do Agreements About Child’s Religion and Upbringing Standup in Court?



Yes there is freedom of religion, but not until you are 18 years old. Child Custody Agreements which specify a child's religious upbringing, schooling and other particulars generally do stand up in New York Courts. Therefore it is best to be careful about what you agree to in writing regarding the upbringing of your child. However failing to be specific enough may lead to further litigation. 

Where the two parties differ in how religious they want the child’s upbringing to be, there may be court litigation. Where the mother claimed that the parties were never that religious and where more secular in their faith, but the father claimed that the child’s upbringing would be damaged if the child was not put into a religious school, the court allowed an order where the child’s placement in a religious school was granted on a temporary basis while the parties litigated the issue. 

Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the children. The burden of proof is on the party bringing the action for modification. 

If you are seeking to enforce the terms of a custody agreement or to modify it, contact Diana Mohyi Attorney at Law to provide you guidance on the issues.

Why You May Need the Court’s Permission to Relocate Your Child



If a New York Court granted you custody of your child, you may assume that you are entitled to move the child wherever you want to go. However, that is inaccurate. Why can’t you do what you want with your own child once you have an Order of Custody? Here are a few reasons why: 

Disruption to Child: Moving a child interferes with the child’s access to the other parent. If you move your child from New York to Los Angeles, for example, it would be disruptive to the child’s life to exchange the child with his other parent for visitation every other week. The other parent could not liberally visit the child without great expense and effort.

Interference with Parenting Time: Moving a child away from the other parent increases the required travel time to see the child. If you move the child from New York to New Jersey, even if it is across the river, you may have increased the other parent’s commute time to over an hour if you used to live down the street. The result is that you have cut their parenting time. 

Imposing Parenting Time Expense on Other Parent: If you move to a different state that is far away, this becomes more obvious. It becomes expensive for the other parent to pay for plane tickets to come see the child or for the child to come to see the parent. Courts have been known to grant a downward modification in child support to accommodate the added expense on the parent who must travel to see their child. Also, if the traveling parent decides to move closer to the child but cannot find a comparable paying job, the Court has also granted a downward modification of child support. The Court’s reasoning is that it was the custodial parent who decided to move and therefore they are to bear the expense of their decision. 

If you are considering moving your child to another state and have been granted custody by a New York Court or you are the noncustodial parent who objects to the move, contact Diana Mohyi Attorney at Law, to obtain Counsel on what your rights are.

The Danger of Transmutation: Changing Separate Property into Marital



You may have thought that separate property can never become marital property but that is a fallacy. It can easily be done when someone fails to think properly about the consequences of changing the form of assets or their location. How could you possibly change separate property like inheritance into marital property? It's called transmutation. Here are a few examples: 

Mixing Accounts: If you put separate property cash together in the same account with marital money and fail to keep account. 

Selling Assets: If you sell and asset that was once separate property and then mingle the proceeds with martial money and purchase a new asset without failing to keep account. 

Signing Over Ownership: If you put your spouse on the title of your separate property such as a home it becomes a tenancy by the entirety in which each spouse owns 100% of the property. 

If you are considering using your separate property to build a new life with your spouse but are not sure about how to protect your interests in the event of a divorce, contact Diana Mohyi Attorney at Law to provide you reliable counsel. 

When do a child’s actions cause child support payments to end?



In New York, Children can be removed from child support, otherwise known as emancipated, for a list of reasons. Typically the reasons have to do with the lack of need to support the child because the child has taken on adult behaviors or is self supporting. But there are other reasons. 

The following are typical examples of reasons a child can be emancipated: 

{a} Reaching the age of 21 years, unless if the child attends a full time college program     

{b} Marriage 

{c} Death of a child;

{d} Entry into the armed forces of any Country 

{e} Engaging in permanent full-time employment 

Children can also be emancipated if they have no contact with their child support paying parent. In a case where a pre-teen girl had little or no contact with their father because she had been poisoned by her mother, the Court found the father no longer had to pay child support. 

If you are considering asking the Court to terminate your child support or you are defending such petition, contact Diana Mohyi Attorney at Law to provide you reliable counsel in the matter. 

What is the difference between legal and physical custody?



Legal and physical custody are the different legal rights that a parent has over a child. However, one should not get too attached to the meaning of being granted legal or physical custody because in the end both parents have a right to be involved in the child’s life assuming a parent is not dangerous to the child’s welfare. 

Physical custody traditionally means the home base of the child. Joint physical custody means that the child spends about 50% of his or her time at each parent’s home. If physical custody is granted to one parent, usually the other parent is given liberal visitation. 

Legal Custody means that the right to decision making regarding the child. If the parents cannot get along usually only one parent is granted legal custody of the child. However the other parent who was not granted custody is entitled to be fully informed about what is happening in the child’s life. 

What does this mean for child support? Not much because child support is calculated based on both parents' incomes. The parent with physical custody still must contribute to the child support. The parent living outside the home of the child happens to pay it because they are not there to buy the child’s groceries like the custodial parent is. The bottom line is that parents should not be too concerned about labels with regard to physical custody. 

If you are seeking clarity and or guidance with the concepts of physical and legal custody and would like to retain counsel in your child support or custody matter, contact Diana Mohyi Attorney at Law. 

Genetic Donor Pitfalls: Why You Don’t Donate Sperm by McDonalds Cup And More…



Generally the requirement to pay child support is not based on whether you married the mother but on your genetic link to the child. Improper donation of genetic material can cause you a lifetime burden and a huge never ending headache because you may be responsible for the child that it becomes apart of. You can be ordered to come into court to undergo genetic testing to determine paternity even if its not on paper that you were the donor. How can you avoid the pitfalls? 

Never donate your genetic material without ensuring that you are given proper waivers of responsibility towards the child that may result from that donation. Where a sperm donor gave his sperm to a Lesbian couple in a paper cup at a McDonalds, the Court ruled that the donor was required to pay child support. In that case, when the lesbian couple broke up the mother retaining custody sued for child support against the sperm donor and won. 

Never enter a surrogacy contract in New York State. Surrogacy contracts are illegal and unenforceable in the State of New York. Even if you do not care about having to take care of the child for the rest of your life, you don’t want to have to fight a custody battle with the genetic mother who decides that they do want to be in the child’s life after all. 

Never agree to create an embryo -- otherwise known as a fertilized egg ---- with your partner but fail to enter an agreement which outlines what may happen to the embryo in the event that you break up. If you sign a waiver which relinquishes your right to the fertilized egg, your partner may implant that material in themselves years later and then come after you for child support.

If you are considering entering an arrangement in which you exchange your genetic material with another person, other than the natural way, please contact Diana Mohyi Attorney at Law so that she can provide reliable counsel to you. 

When Does the Mother Not Get Custody?



For decades it was common for the mother to automatically get custody of the children. The result was so frequent that the perception became that it was purely the fact that the mother was the birther of the child that caused the result. However, there are reasons why the mother may not always get custody. Here are some examples: 

  1. Mother is not Primary Caregiver - When the mother has not been the caregiver of the child, it does not make sense to disrupt the child’s routine. 

  2. Mother unable to be Primary Caregiver - For example, the Mother is in a coma or a drug addict that is unable to care for the child. 

  3. Parental Alienation - Mother has alienated the child from the father resulting in the Court granting the father custody in an effort to heal the relationship. 

  4. Domestic Violence - Mother fails to end her relationship with a violent boyfriend and continues to allow him to live in the same home as her child. It is not in the best interests of the child to live in such an environment. 


These examples are not exhaustive and are fact specific. Just because someone may fall into these possible categories does not mean that it can be proven sufficiently without competent representation by your side. If you seek to obtain custody of your child contact Diana Mohyi Attorney at Law to help guide you through the process. 

The Quickest Way to Lose Custody: Bad Mouthing Your Ex’s New Family



Sometimes your ex does not wait to start a new family and you find yourself alone watching him or her start their new family unit. You may be tempted to bad mouth your ex and their family but think twice. You may lose custody of your child by such antics. 

The Courts prefer to place child in a family unit with two parents involved because they believe that it provides stability to the child. However, another major factor for consideration is that the child is most used to being cared for by one of the parents and should therefore stay with that parent. If the custodial parent begins to bad mouth her ex's new family then the Courts have issued decisions placing that child with the new family unit. For example, where a mother told the child that the child's new baby brother by another mother was not her real sibling the court awarded custody of the child to the father because this was confusing the child and having a negative impact on her. This kind of decision can be devastating but serves as an important lesson. Bad mouthing your ex will bite you in the behind. The younger the child, the less likely they understand they should not repeat what you told them to the other parent. 

If you are having difficulty with an ex spouse who is bad mouthing you to your child or if you are having trouble understanding how to discuss your ex’s new family with your child, contact Diana Mohyi Attorney at Law so that you have a counselor on your side. 

The Residency Requirement for Divorce and Family Court Actions



Despite the impression that some high profile cases make, no one can choose which jurisdiction they want their case to be heard without having a significant tie to it. New York, like other states, has enough of its own matters to deal with and does not want to deal with cases in which the parties do not have a significant connection to the state. The practice called 'Forum Shopping' is frowned upon. 

Even county shopping, especially between the boroughs of New York City, will not be tolerated. A judge once told my opposing counsel, ‘Brookyn does not want this case, go back to Manhattan.’ The court culture between the different boroughs is so different that when you have started a family court case in one borough you should not be starting a divorce case in another borough. The case must be initiated in the county where the children reside. 

For Divorce Cases, pursuant to Domestic Relations Law Section 230, the following requirements must be met to meet the residency requirements for initiating case in New York: 

  • Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started;

  • Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and (1) you got married in New York State, or (2) you lived in New York State as a married couple, or (3) the grounds for your divorce happened in New York State;

  • Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.


For Family Court Proceedings in general the parties and their children should have some significant connection to the State of New York. The child’s last habitual residence should be New York. The child’s permanent residence should be New York. Generally, to establish residence in New York, one must be living in the State for at least one year. 

Despite these rules, certain exigent circumstances could allow a parent to bring family court proceedings in New York regardless. If you are considering whether New York is the proper state in which to bring a divorce or family court action, call Diana Mohyi Attorney at Law to get a proper consultation on the matter. 

Why Adopting Your Partners Child Means Your Liable for Child Support



When creating a blended family, one might consider adopting your partner's child as a sign of your love extending to your partner's family. However, you must consider the possible ramifications of engaging in what you consider an act of love. You could be chased down for child support in the future. 

In certain circumstances, it makes sense to adopt a child that is not your flesh and blood and actually quite admirable. For example, there are cases where the child’s other parent has never been in their life and you have raised them as if they are your flesh and blood. But if you have no real connection to a child, then you may not be so happy about the consequences of your emotion based decision to adopt. 

When you adopt a child, they become just as legally your responsibility as if the child were your flesh and blood. That means that even if you and your partner get a divorce in the future, your partner can file a petition for child support against you and you will be responsible for supporting that child until the age of 21 in New York. The bottom line is that you should always consider whether you are willing to take on the responsibility no matter what may happen between you and your partner in the future. 

The flip side of this is that if you are the natural parent of the child, you should also consider whether you want your partner in your child’s life no matter what happens in the future. The adopting parent also has a right to custody and visitation. What if you lose custody? Are you willing to take that risk? 

If you are defending a child support, paternity or child custody or visitation petition, or seeking to bring one, contact Diana Mohyi Attorney at Law P.C. to obtain reliable advice on the subject. 

Why a Prenuptual Agreement is a Key Business Protection Tool



Under New York Law by default, all property is considered marital property. It is the burden of proof of the party claiming that the property is separate property, to prove that it is separate property. Even if the property is clearly separately owned by the titled spouse, the court will order an expert to be hired to value the property to assist the court to determine the value of any equitable distribution that may be awarded. Every business owner should consider a prenuptial agreement an essential insurance policy. Both the process and costs of business valuation can cripple a business.

Imagine owning a business for 20 or 30 years and being required to turn over to an expert all financial documents from your files. They need the documents so they can conduct a forensic evaluation to determine whether you hid money or improperly accounted for profits on your tax returns. That would be alot of paper which means alof billable hours for the forensic evaluator. Imagine turning over documents from the last 3-5 years. That too may be a daunting task. 

Having a prenuptial agreement in place shifts the burden to the spouse who does not own the business to prove the property should be martial property. A prenuptial agreement, if done correctly in both procedural execution and substance, is solid evidence that the business was separate property. That means it would not subject to evaluation by an expert for valuation and you and your employees can continue doing the work that makes your business profitable. Some experts may charge $5000 for a small closely held company but when you have more documents in a larger business, expect the rates to skyrocket. 

If you are interested in learning more about how a prenuptial agreement can protect you and your business, contact Diana Mohyi Attorney at Law for a consultation. 

Why a Billionaire Does Not Pay Child Support Based on His Entire Income



In New York, child support for one child is generally 17% of the combined income of the parents combined income. However that does not mean that the child support seeker can get 17% of a billionaire's income. Courts may apply the 17% to the total combined income but they are not required.

The court will generally calculate that child support is 17% of the both parents' combined income up to an income cap.The income cap changes every year to keep up with economic factors like inflation. The 2019 combined parental income cap is $148,000.

It is up to the child support requester to prove why the child needs support calculated on the rest of the income beyond the cap. Generally that is accomplished by proving that the child previously enjoyed a certain standard of living before the parents split, that must be maintained, or that the child has a need for a certain amount of support. 

Child Support not only includes a percentage of the combined income but also includes ‘ad-on’ payments for other things that a child might need such as education, medical care and day care expenses. 

Beware that there is also a Self-Support Reserve which puts a limit on the amount of child support a payor must pay. The 2019 self support reserve is $16,862. The minimum support a payor must pay is $25.00 per month with an arrears cap of $500. If the payor has other children he is paying support for, that amount comes out of his income before a calculation of support is done for the newest child. The requirement to pay child support cannot put a payor below the poverty income level. In 2019 that poverty income guidelines amount is $12,490.

If you are seeking child support or need to defend a petition for child support, contact Diana Mohyi Attorney at Law P.C. to learn more. 

Family Court vs Supreme Court – The Cost Benefit for Custody Proceedings



Even Miranda Priestly had to go to think about the best option to get custody of her twins so why wouldn't you?  Different costs and benefits exist in a decision to start the dissolution of your family unit in family court versus supreme in a New York Custody battle. 

As I mentioned in a prior post, you cannot get a divorce in family court. However, you can get custody in family court and then go to supreme court to finnish off the financial aspects of the divorce. The benefit is that family court has zero filing fees and can be a relatively quicker process than supreme court. As a result your attorney fees could potentially be less if you started the dissolution of your family unit in family court. Also, your children would not be in limbo about what the final custody arrangement ends up being. The order from the family court would be introduced to the supreme court when the divorce action commences as proof that this aspect of the divorce was resolved. 

The benefit of starting the action in supreme court is that the entire proceeding is before the same justice. That justice would get to know the family dynamics of your case that would necessarily impact your finances. You would not have to get used to the particular habits of two different judges. Your divorce lawyer, who would handle the supreme court matter may have more interaction with the supreme court judges than the family court judges. The atmosphere of the family court is more pro se friendly. Family Court judges are more used to dealing with self represented litigants. Although not recommended, this is important if you only have finances to hire a divorce attorney to resolve your financial issues in supreme court. 

If you are considering whether to pursue a custody order in family court or commencing a divorce in supreme court which involves custody issues, call Diana Mohyi Attorney at Law P.C. Two heads are better than one. 

 

When is a Child Support Modification a Bad Idea?



You see your ex in a brand new car and you rush to file a petition for an upward modification of child support in family court. What could possibly go wrong? 

A Child Support Modification is typically allowed every three years, when the party's income changes by at least 15% and only with a substantial change in circumstances. 

When bringing a child support petition it is important to be absolutely certain that the child support payor's income has increased significantly enough that such a motion would be fruitful. Otherwise you will waste alot of time and attorney fees for nothing. Furthermore, if the payor's income has dropped significantly or your income has increased significantly over the years, you may end up being paid nothing. In certain circumstances, where physical custody is shared, you may end up paying the other party child support.

An increase in income  also includes imputed income from other sources that may have caused a dramatic improvement to the payor’s standard of living. For example, the ex may be receiving money from a significant other or their parents which is also part of the child support calculation. 

If you suspect that the child support payer in your life has dramatically increased in their income, contact Diana Mohyi Attorney at Law P.C. for a consultation. She can be your partner in this matter to help you avoid mistakes that cut into your ability to care for your child.

When is a Divorce Settlement Right for You?

Would you rather let a Court, who barely knows you, decide your future or would you rather swallow your pride and decide yourself? Divorce is a very emotional process. The well known epithet that a self-represented litigant has a fool for a client, rings ever more true in divorce. You must have the help of an attorney to help guide to a resolution which makes sense for you even if it requires you to swallow your pride. 

When you are involved in the most intimate issues of your life it is hard to make objective decisions. Never agree to something that would hurt you in the long-run just to get to a settlement, but be reasonable. Being in limbo for potentially years not only hurts you emotionally but stymies your progress in life. It also hurts your children who are put in a place of uncertainty. 

Here are a few key points to consider when you decide if a settlement is right for you:



    1. Will you be able to support yourself and or your children with this settlement? 

    2. Are you settling out of fear or based on rational decisions? 

    3. Will this settlement be a good decision 5 years later? 10 years later? 

    4. Have you laid out the key things you are not willing to compromise over and have you compromised? 

    5. Do you feel at peace? 




If you need help resolving your divorce call Diana Mohyi Attorney at Law. She can be your partner in this very tumultuous period in your life. 

The Heightened Fidelity Requirement in Spousal Contracts



Contracts between spouses have a more heightened requirement for fidelity, otherwise known as loyalty, than do agreements between non spouses such a prenuptial agreements. Unlike a prenuptial agreement, spousal contracts occur after the parties have pledged some kind of fidelity to one another through a ceremony or by the act of getting a civil marriage. If challenged, they are highly scrutinized by the courts to determine whether one spouse manipulated the other spouse to sign an inherently unfair agreement. Therefore they must be done properly. 

The two types of spousal agreements are Post-nuptial Agreements and Separation Agreements. 

Postnuptial Agreements are typically signed where one spouse cheated on the other and in order to save the marriage, the cheater conveys property or money to the innocent spouse. The risk in signing these agreements is that either spouse can turn around file for divorce without the need to return the conveyed property to the ‘marital pot’ for splitting. 

Separation Agreements are typically executed where the spouses are not quite ready to divorce but want to memorialize a new living arrangement. Such agreements may contain provisions for spousal support, child support and child custody, among others. They can be converted to an uncontested divorce after a year if certain requirements are met. 

The spouses should be both represented in such agreements because the risk and effort to run to court overturn them is more than just making sure you are properly represented. 

If you are interested in entering a Postnuptial or Separation Agreement with your spouse or a Prenuptial Agreement with your intended, contact Diana Mohyi Attorney at Law so learn how she can assist you.

The Damages Requirement for a Breach of Contract Claim



You say someone breached their contract with you. Start by determining how you will measure your damages because without damage their is no breach of contract claim. Your case will be dismissed.

In New York, like other jurisdictions, a Plaintiff must prove the following elements to bring a claim for Breach of Contract:

(1) formation of a contract between plaintiff and defendant;

(2) performance by plaintiff;

(3) defendant's failure to perform; [and]

(4) resulting damage

TYPES OF DAMAGES AWARDED BY THE COURT MAY INCLUDE:

Compensatory Damages - Plaintiff is awarded the amount of compensation that would make you whole. For example, price of the contract was $1,000 and as a result of defendant's breach you had to pay $1,500 for the same services elsewhere. Possible court award may be $500 because you would have had to pay the $1,000 at minium anyway.

Restitution - Defendant is required to refund Plaintiff the money Plaintiff paid to the breaching party.

Liquidated Damages - if your contract has a provision which sets the damages in the event of breach that is what plaintiff is awarded.

Nominal Damages - A damage award made where there were damages were unquantifiable but the court seeks to award the bare minimum for the sake of recognizing the harm. It could be as small as $1.00 so its not worth the time, effort and expense.

Quantum Meruit - Plaintiff is awarded payment for work that plaintiff completed if the defendant who hired plaintiff reneged on the contract before it was complete. Typically a service contract scenario.

Equitable Remedies - The Court issues a declaratory judgement ordering the contract canceled or requiring a specific preformance by the breaching party - a rare remedy because it is hard to monitor.

Punitive Damages - An additional award beyond the basic damages award which generally matches the basic damages in amount. It is awarded to plaintiff punnish morally reprehensible behavior by the breaching party.

How Divorce Jurisdiction Can Be Determined by Your Shoes



Sounds crazy but it happened. The couple lived a bicontinental jet set life. The wife tried to commence the divorce in New York County because, unlike Manhattan, Monaco does not have a concept of shared marital property. The husband contested that the New York jurisdiction was the couple's primary residence. One of the arguments made was that the wife kept the majority of her valuable shoe collection in Monaco. Read an article here. The New York Court denied jurisdiction, See, First Department Case here.

How do normal people determine jurisdiction for a divorce proceeding?

According to Domestic Relations Law Sec 230, an action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

  1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

  2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

  3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

  4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

  5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.


If you want New York to be your jurisdiction make sure you have proof that you have been living here for the requisite period of time. Start by moving your shoe collection.

If you would like to determine whether New York is the proper jurisdiction for your divorce, contact Diana Mohyi Attorney at Law for guidance.

The Difference between a Contested and Uncontested Divorce



What is the difference between a Contested and Uncontested Divorce in New York? One is cheaper and quicker to accomplish if done correctly. The other can be an arduous painful process lasting years and leaving the wary and unreasonable possibly bankrupt.

An Uncontested Divorce is one where both parties voluntarily sign an agreement which resolves all aspects of the divorce. Every single thing is agreed upon from child custody and child support to maintenance and equitable distribution. Even disagreement on one single issue makes the divorce contested. The parties cannot waive child support and if the calculation of child support is incorrect or unfair, then the court will reject the filing. The time from filing to signing varies between counties. New York County has signed an uncontested divorce order within 3-4 months while the Bronx and Brooklyn has signed it within 6 months. The time periods vary depending on how many people are ahead of you. One mistake can result in a rejected filing which extends the time process.

In a Contested Divorce at least one or more issues is not agreed upon by the parties. A Contested Divorce requires the filing of a complaint for divorce by one party--the Plaintiff---who then serves it on the other party--The Defendant. The Defendant must then either file and serve an Answer to the Complaint or may file a motion to dismiss because they contest jurisdiction. They may, for example, perfer to have the divorce occur in a different jurisdiction that is more favorable to them. Practically speaking it does not matter whether someone is a Plaintiff or Defendant because most divorces are typically filed as no fault, otherwise known as 'irreconcilable differences' or ''irretrievable breakdown.'

If you need assistance in filing a Contested or Uncontested Divorce, Diana Mohyi Attorney at Law can assist you to navigate the minefield of Matrimonial Law Practice. Contact her for a consultation.

Why Can’t You Get a Divorce in New York Family Court?

It seems obvious that family court should handle all things family but in New York Courts that is not true. According to the New York Family Court Act Section 115, the Family Court has exclusive original Jurisdiction or control, over the following:



    • child abuse and neglect proceedings

    • child support proceedings

    • proceedings to determine paternity and for the support of children born out-of-wedlock

    • proceedings to permanently terminate parental rights to guardianship and custody of a child

    • proceedings concerning whether a person is in need of supervision

    • proceedings concerning juvenile delinquency

    • proceedings involving handicapped children

    •  proceedings concerning adoption and custody of children

    • proceedings concerning the uniform interstate family support act

    • proceedings concerning children in foster care and care and custody of children

    •  proceedings concerning former foster children 

    • proceedings concerning destitute children

    •  proceedings concerning guardianship and custody of children by reason of the death of, or abandonment or surrender by, the parent or parents

    •  proceedings concerning standby guardianship and guardianship of the person

    • proceedings concerning the interstate compact on juveniles

    • the interstate compact on the placement of children

    • the uniform child custody jurisdiction and enforcement act

    •  provided that tribal courts of Indian tribes designated as such by the state of New York shall have jurisdiction over such child custody proceedings involving Indian children to the same extent as federally designated Indian tribes upon the approval of the state office of children and family services 

    • concurrent jurisdiction with the criminal court over all family offenses

    • jurisdiction to direct the commencement of proceedings to suspend the driving privileges, recreational licenses and permits, and license, permit, registration or authority to practice of persons who are delinquent in their child or combined child and spousal support obligations or persons who have failed, after receiving appropriate notice, to comply with summonses, subpoenas or warrants relating to paternity and child support proceedings




In order to obtain a divorce, one must file an action in the New York Supreme Courts. The Family Court only has jurisdiction in matrimonial action only when the case is referred to it by the Supreme Court. If you are seeking a divorce you must file a complaint for divorce in the Supreme Court of the County where the parties were married and either party resided for at least one year prior to the filing pursuant to Domestic Relations Law 230.

If you are confused about where to obtain your divorce and need assistance in filing or defending a divorce action, Diana Mohyi Attorney at Law P.C. can represent you. Contact Attorney Diana Mohyi for a consultation.

Why Airbnb is Illegal in New York City



The fight for free enterprise between companies such as Airbnb and Hotels and Landlords has been in the news for a while. There is no Airbnb Law per se so what makes Airbnb and similar business models illegal in New York City?

Short term leasing is prohibited by New York Multiple Dwelling Law Sec 4(8)(a). A 'Multiple Dwelling' is a home rented within a residence with three or more families dwelling independently of each other. Such a dwelling can only be occupied by the same natural person or family for 30 consecutive days or more. However you may allow a non-paying guest to occupy your residence for less than 30 days if they are a non-paying guest.

According to the New York Housing a Maintenance Code 27-2004(14), an apartment is single dwelling unit meant for a single family with lawful sanitary and kitchen facilities for the exclusive use of that family. Under HMC 27-2004(4), a family is a single person with not more than two borders; OR two more persons related by blood, adoption, legal guardianship, marriage, or domestic partnership maintaining a household with not more than two borders; OR not more than three unrelated persons. Furthermore, pursuant to HMC 27-2078, a family may rent to no more than two borders, roomers or lodgers.

When is Airbnb illegal when you are home at the time of rental, which lasts less than 30 days, and the guests don't number three or more?

When a Rent Stabilized Tenant is profiting off the rental. The Rent Stabilization Code prohibits Rent Stabilized Tenants from profiteering off their apartment by Subleasing

When you are creating a liability for other tenants and ultimately the landlord.

Why should landlords care if they get their rent anyway?

The New York City Department of Buildings and Environmental Control Board will issue violations and fines to a landlord if it finds that the short-term leasing law has been violated. Ignorance is not a defense!

Do not confuse these rules with the tenant's right to have a roomate.

If you are Landlord faced with the need to evict a tenant for violating the short term leasing law or a tenant facing eviction for violating those laws, Diana Mohyi Attorney at Law P.C. can represent you.

The Difference between Rent Controlled verses Rent Stabilized Apartments







Yes there is a difference between Rent Controlled and Rent Stabilized Apartments. It's all about the money. Both types of apartments are considered 'Rent Regulated' Apartments. The rent a tenant must pay is generally far below the market rate that the landlord could typically charge for the unit. Therefore these units are valuable to the tenants who have them because the tenancy can be passed on through the family or someone that is considered close to you and has lived with you in the unit. The landlord and tenant cannot contract outside of the governing statutes for these types of units. There are significant differences between the two types of units.





Rent Control generally applies to residential buildings built before 1947 in municipalities such as New York City, among others, which did not declare an end to the postwar rental housing emergency. The rent stays stagnant and therefore it would be possible to pay under $100 a month in rent in such a unit. These are considered the most valuable apartments. There have been 10 room apartments in the upper east side which have rents set at not more than $1000 per month. But good luck finding a tenant willing to give it up!





In NYC, Rent Stabilized apartments are generally those apartments in buildings of six or more units built between February 1, 1947 and January 1, 1974. Rent Stabilized apartments are still much lower than market rate to rent. The landlord has a right to increase the rent in accordance with the landlord's expenses by applying to The Rent Guidelines Board which regulates the rent on Rent Stabilized Units only. Generally, a landlord can convert a Rent Stabilized apartment to a market rate apartment. The landlord must do significant renovation to the apartment, such as a complete gutting of the apartment down to the floor beams, and applying to the Rent Guidelines Board to convert the unit to a market rate apartment. Otherwise, when a Rent Stabilized unit is vacated by a tenant it remains Rent Stablized.





When Rent Controlled Apartments become vacant they automatically convert to a Rent Stabilized Apartment. The landlord cannot unilaterally declare that the unit is now market rate and then start marketing it as such. If a legitimate case for rent over charge is brought against a Rent Stabilized unit's landlord, the landlord can be required to repay all the rent paid by the tenant which was charged above what was the tenant was legally required to pay as well as hefty fines and the tenants legal fees. The landlord must attach certain riders to a lease for a Rent Stabilized Apartment.





If you are a tenant being forced to pay above market rent for your unit or you are a landlord who is defending such a claim, Diana Mohyi Attorney at Law P.C. can assist you to resolve your dispute.





See more on this topic at https://www1.nyc.gov/site/rentguidelinesboard/resources/rent-control.page


Why a Landlord Cannot Evict & Collect Past Due Rent at the Same Time






Usually the parties in a lawsuit resolve all disputes against one another in one proceeding, but Landlord Tenant Law is a different. A landlord cannot both evict a tenant and obtain a judgement for past due rent from the the tenant in the same proceeding. A landlord must send a termination notice to the tenant first before commencing a holdover proceeding to evict the tenant. If the landlord wants to get past due rent from the tenant they must commence a non-payment proceeding to obtain a judgement from the tenant. In most cases, the tenant has not been paying rent because they don't have the money to pay it. In that situation it does not make sense for the landlord to start with a nonpayment proceeding. The landlord would typically commence a holdover proceeding. The landlord must be careful to follow the both the rules of Civil Procedure for a Civil Lawsuit and procedures outlined in the the New York State Real Property Actions and Proceedings Law (RPAPL). If any one of the procedural requirements are not followed, the Landlord essentially gives the tenant's lawyer an excuse to use to have the action dismissed. Therefore it is important for a landlord to obtain the counsel of an attorney who practices landlord tenant law. Otherwise the Landlord will waste time and money commencing an action against a tenant just to restart the process all over again. Diana Mohyi Attorney at Law P.C. is available to represent you in your landlord tenant proceeding whether you are a landlord who is not being paid or a tenant who is being harrassed.






Why The Best Interests of Your Children in a Divorce Are Not Your Interests



When a married couple with minor children seeks a divorce they often forget that their interests are not automatically aligned with the best interests of their child. If they cannot agree on a custody and visitation arrangement, the Court steps in to protect the children by appointing a children's attorney aka guardian ad litem and by appointing at least one forensic psychologist or physician to evaluate which home environment would be better for the children. As you may suspect these paraprofessionals can contribute to a very expensive divorce bill. Therefore it is best that the parties come to a mutual decision about custody and visitation without involving third parties who will be required to approve any agreement the parents make once they get involved.

According to New York's Domestic Relations Law, the parent to be awarded custody is not an automatic assumption. DRL 70 states that "there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child.' DRL 240 also echos that language. This concept has been expanded in New York's body of case law resulting in factors which help a court determine what is in the best interests of the child.

(1) The parent who has been the primary caretaker;
(2) The age and health of the parties;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each parent provides;
(5) The ability of each parent to provide for the child’s emotional and intellectual development;
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been in effect; and
(8) The desires of the child.

Ultimately, unless being around a certain parent is inherently bad for a child, a child needs both parents. A child is not property. A child is a human being who only has one set of biological parents. No matter how much a party may hate their spouse, there is nothing they can do to change that so they might as well start by agreeing for the sake of their child.