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Dismissed WITH Prejudice - time to give up?

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ladybugz

Junior Member
What is the name of your state? NY

I have an 18 year old son. He has lived with me since 2004. I filed a OTSC in Supreme Court for sole/residential custody back in 2004. It was denied but my son would not return to his fathers residence. In 2005 I then filed a petition in Family Court for custody again. It was dismissed (lack of change of circumstance - the child lived with me when the SC granted the father custody and nothing has changed). I still do not understand how someone is legally granted residential custody but the child does not have to reside with them. I appealed and it is still waiting to be decided.

Meanwhile, the father receives the benefit of $70/wk in CS from me (he reduces his amount of CS to me for our other son by the amount I owe him). I have petitioned Family Court twice to terminate my CS and both times it has been dismissed (both times due to lack of change of circumstance, again, because the child lived with me when the CS was ordered). The most recent time it was dismissed WITH prejudice.

When it's dismissed WITH prejudice, what exactly does that mean? I cannot petition the court again for termination of CS for ANY reasons? Suppose the Appellate Division reverses the decision (highly unlikely though). Or are there NO exceptions - I am just thrown out regardless of anything?

I have one week left to file an objection to the Hearing Examiner's decision (it will then be reviewed by a Family Court Judge). I'm at a loss as to how to proceed. My EH is represented by an aty and I am Pro Se. I tried researching and everything is so confusing to me so I turned here.

I apparently botched the whole thing. I was also petitioning for $1800 in back support he owes me from three years ago and because I didn't state "how he hasn't paid me" and "how much he hasn't paid me" I didn't meet the burden of proof. Even though EH admitted, his aty admitted and the Hearing Examiner said to me "they are not disputing the $1800 he owes you". It was dismissed regardless. Things that seem so simple to me are twisted and then make no sense but are acceptable in court.

My EH makes good money, he doesn't need the child support. He hasn't seen or spoke to either of our children in months. Our children haven't even stepped foot inside his home in two years. My husband picked up a second job and my mother buys the extra things the kids need. I asked my EH at the trial what he was using the child support for when our children haven't even visited his home in two years and he hasn't even talked to our son in months - he said to maintain the home in case he (our son) comes back someday - and that is an acceptable reason to receive child support? Just in case he actually has a child living with him? He has a drinking and drug problem, he works for General Motors and is on Voluntary Layoff making $800 a week. He usually makes around $85k (when working). I receive $53/wk in child support (and have our two children from the marriage living with me).

Meanwhile, our family of five made $18k last year. We filed bankruptcy and still can't make ends meet. Myself, my husband and our baby receive medicaid. The baby gets WIC and the whole family receives the benefit of food stamps. The children receive free lunches at school. The difference in the $70/wk he's receives the benefit for from me would make all the difference in the world to us. We would not need social services. We wouldn't be eligible for Medicaid, we would get Family Health Plus and pay a small premium and we wouldn't receive WIC or FS either and I really long for the day I can rest in peace knowing I'm no longer receiving social services.

I'm tired of all the legal stuff. There is no way I could hire an attorney to represent me and I'm completely lost as to what to do. Now I ponder, do I just give up with the legal stuff and accept what I do have... the love and respect of my boys and the knowledge that they have weathered the worst storm imaginable and turned out EXCEPTIONALLY well (they both are honor roll students - since leaving dads - and the teachers and administrators all comment on how respectful, polite and intelligent they are). I just dread knowing that the next three years the father will receive $70/wk and will never spend a penny of it on our children. It makes me sick.

Thank you. I'm sorry that was so long.
 


nextwife

Senior Member
ladybugz said:
He usually makes around $85k (when working). I receive $53/wk in child support (and have our two children from the marriage living with me).

Meanwhile, our family of five made $18k last year. We filed bankruptcy and still can't make ends meet. Myself, my husband and our baby receive medicaid. The baby gets WIC and the whole family receives the benefit of food stamps.
He hjas an actual income of $85K and pays $53 wk in CS? How so? Does he have legal custody of any of your other kids?

As to only making $18K between TWO adults, why are the both of you making so little combined? Even without a college degree, you alone should be able to make more than that!
 
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Zephyr

Senior Member
nextwife said:
He hjas an actual income of $85K and pays $53 wk in CS? Does he have legal custody of any of your other kids?

As to only making $18K between TWO adults, why are the both of you making so little combined? Even without a college degree, you alone should be able to make more than that!
are both of you working????
 

ladybugz

Junior Member
My exhusband and I have two children together and they both live with me. I remarried four years ago and our baby is one year old. My income was imputed to tax year 2002 when I was working two jobs and earned $35k.

My exhusbands income was estimated that year because he failed to provide a tax return and it was another year when he was voluntarily laid off from General Motors and his aty "did her best" to provide accurate numbers. She estimated his income to be $41k. At that time in my case I did have an aty and she subpoenaed his employer, we received a current paystub in May which stated he had earned $39k to date... the judge disregarded it. We also objected that I was not able to work two jobs now with three children living with me and therefore my income should not be imputed with reference to two jobs, the judge disregarded that as well.

I was ordered to pay $70/wk for one child to the father and the father was ordered to pay $124/wk to me for the other child. My EH reduces the amount I am to pay him by the amount he is to pay me - I receive $53/wk.

My husband works salary + commission jobs, his commissions have been minimal and his salary is low, he has been applying and interviewing for months, but no offers. That's why he picked up a second job that he works five days a week from 9pm until 1am. I'm a stay-at-home mom with the baby. I do some office work for a man I used to work for from my home but the hours are minimal and therefore so is the pay. I also babysit one day a week and that pay is minimal. Also, my grandfather is 93 years old and he had a stroke a year ago, he lives in my mothers home and she works full-time and he's alone all day. Myself and the baby go over there every day and I make/feed him breakfast and then lunch and take him to doctors appointments, etc. I also have been looking for other paid work to do from home but nothing yet.
 

stealth2

Under the Radar Member
You're unlikely to get anywhere. The reason your argument regarding now being a SAHM didn't fly is because it was a choice for you to have another child and become a SAHM. Your other two children are well old enough to be on their own for a few hours a day, so you voluntarily became unemployed. In addition, you were technically in contempt of court for not making your son move back to Dad's.
 

Gracie3787

Senior Member
When a motion or petition is dismissed with prejudice it only means that you cannot refile using the same legal basis. In other words, if you filed on the basis of your child now living with you, in order to modify at another time, you'll have to have a different reason for the modification.

It's possible that the court dismissed the CS motions on the basis that you don't have legal custody yet, and therefore are still techinically the NCP.
 

LdiJ

Senior Member
I think that you should definitely appeal the hearing examiner's decision and take it in front of the familiy law judge. It doesn't make sense for you to be required to pay child support when the child is living with you and has been for over a year.
 

BL

Senior Member
Gracie could be correct . If the hearing examiner has into evidence that Custody has not changed legally , it could be upheld by the Family Court Judge , and not reversed .

I hope the poster comes back with the Family Court Judges decision , to let us know the results .
 

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