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Free Consultations 24/7. Affordable Payment Plans. Divorce and Criminal Lawyer in Buffalo NY. Call Andrew Tabashneck Esq direct at (716) 526-7405.
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- J.D. (2016) | Law and Social Work
- State Bar of New York
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29 Questions Answered
- Q. I gave my sister custody of my child but she wants to give it back, how do i regain custody ?
- A: It is difficult to answer this question without a little more information. When you that you gave your sister custody of your child, I am curious as to whether a court order was involved. For instance, did you both come to an agreement and was the agreement then made formally part of a court order? Or, on the other hand, was this more of an informal arrangement between you both which worked out for a period of time, but perhaps the situation has changed? Bottom line, if there is no court order, then to add clarity to the situation it is probably best to petition family court for an order which could include some visitation time for your sister, if you both wish to go that route. If there was already a custody order in place, which provided your sister with custody of the child, then you will need to modify the court order. If she no longer wants to care for the child, this would certainly be a substantial change in circumstances which could warrant providing you custody of the child. Again, I would need more information to really provide much help here. Many slight facts could drastically change the analysis. It's important for you to consult with an attorney about this situation. I wish you the best of luck going forward.
- Q. Non custodial parent hasnt been around for 2 years and hasnt really payed child support now he wants custody
- A: tough to speculate without more facts, but with a history of dv and with any recent incidents, you could attempt to obtain a type 1 order of protection. But this probably would not prevent the father from being granted at least some visitation. The age of each child will be relevant to the final determination, and if the children are old enough, the judge will consider their perspective through the Attorney for the Child. Although more facts are needed to make a determination, it is very possible the father could get visitation. That being said, it's difficult to imagine how he could get full custody of the children given his lack of involvement. One final caveat to this analysis is that there is some case law, depending on the jurisdiction of your case, that permits a parent to deny the other parent visitation where he or she fails to pay child support. However, this is not a clear cut rule. The final point I would make about the Child Support issue is that you could file a contempt of court to try and compel the father to pay child support. If he cannot pay and a court finds his failure to be willful, then he could be sentenced to jail time. I wish you the best of luck
- Q. I have joint custody of my son with my ex. My son wants to be emancipated from her. How does he go about it?
- A: It is difficult to answer the question without more information. The issue of emancipation depends on a variety of factors. One of those factors is not whether the party has an explicit desire to be considered emancipated. Under New York law, emancipation prior to age 21 may occur if the child marries, becomes self-supporting, enters the military or engages in a course of conduct that is inconsistent with the parent-child relationship. Under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, the child forfeits his or her right to demand support. However, where it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent. Critically, the burden is on the party seeking to establish the child as emancipated to provide the evidence sufficient to conclude the child is emancipated.
- Q. Is it legal for wife to have a abortion without husband knowledge
- A: If a man's pregnant partner seeks to have an abortion, the father's consent isn't legally required. A woman may choose to terminate a pregnancy against the objections of the father. The Supreme Court addressed this question in Planned Parenthood v. Casey and found that the father does not have a legal right to be notified of an abortion. American law places much of the decision making power regarding abortion in the hands of the prospective mother. She may choose to terminate a pregnancy without the consent or notice of the father. At the same time, a woman may choose to give birth to a child, even if the father would prefer to remain childless. After birth, the father may be responsible for child support payments despite his objections to carrying the pregnancy to term.
- Q. I have one question and that is --do judges and district attorney accept letters from families ?
- A: I am very sorry to hear your are going through this. To answer your question, yes, you can most certainly send a letter to the judge and the district attorney. In fact, you could even call the district attorney, or the assistant district attorney assigned to the case, and ask to meet with her. It is very possible she may meet with you and you could address the concerns you have. At the same time, uou may want to be careful because, depending on the ada, you could bring your daughter even more problems. Hopefully, the ada understands your daughter needs treatment and everyone will be on the same page. Regardless of whether the district attorney meets with you, you can certainly send a letter to the judge or the clerk of the judge. I highly recommend it. This will help the judge fully understand the situation and will provide a better understanding of what your daughter is going through. Again, I a am very sorry that you are experiencing this. If you have any aditional questions feel free to call me at 716-526-7405 and I'll try to help you as much as I can. Best, Andrew S. Tabashneck, Esq.
- Q. My daughter is 15 and a 19 year old is threatening her in school and social media. Can I press charges for harassment?
- A: In New York, there are a number of harassment laws. Generally such laws prohibit a wide array of activities intended to harass, annoy, threaten, or alarm people. If this 19 year old is threatening and engaging in behavior that would cause a reasonable person to feel annoyed, then at the very least, one of the less serious charges of harassment would apply. It is difficult to determine which level of harassment applies to this situation because of the lack of facts. For instance, aggravated harassment in the second degree occurs when, with the intent to harass, annoy, threaten, or alarm another person, one communicates with a person anonymously or not, by telephone, mail, or other written communication in a manner likely to cause annoyance or alarm. If this 19 year old has been engaging in this conduct over a longer period of time, or has faced harassment charges in the past, it is possible she could fall into second degree harassment without additional aggravating circumstances. Bottom line, the situation you have described is concerning. At the very least, call the police, express your concerns, and inquire about the possibility of filing charges. This would lead to an order of protection likely being granted and, hopefully, some peace of mind for you and your daughter. This sounds like a very stressful situation. I hope everything works out and you are able to focus on more pleasant things. Again, this is not legal advice and I highly recommend that you consult with an attorney who can provide you with advice after hearing more facts about your case.
- Q. For employment purposes, what are my chances of getting an early ACD dismissal?
- A: Under CPL Section 170.55, an ACD is an adjournment of the criminal proceeding against the defendant for a certain period of time -- at the end of which, the charges against the defendant will be dismissed. The defendant is required to "stay out of trouble" during the adjournment period or else the criminal charges may be restored by the prosecutor. Whether you are eligible for an ACD depends on the crime you are charged with, criminal history, district attorneys office, and a number of other factors. If you want more specific advice, email me at firstname.lastname@example.org and I can provide you with a better answer with more information.
- Q. What are the statue of limitations for sexual abuse of a minor? What can I do if the statue has passed?
- A: I am very sorry to hear about this and very much admire your courage in discussing this matter. For sexual offenses, the statute of limitations is five years after the last incident and begins to run when you turned 18 years of age. There are also possible exceptions where the statute of limitations may be extended under certain circumstances. Even if this incident occurred a long time ago, I would suggest attempting to go police because it's entirely possible that an exception applies. It's also possible that police could uncover additional wrongdoing. I wish you the best of luck.
- Q. A person is guilty of prostitution when they engage in sexual conduct for a "fee". What is considered to be a fee?
- A: Because crypto-currencies are pretty new, I doubt there is case law which directly relates to that form of a transaction. As it relates to food, clothes, an iphone, etc, Initially, I assumed the court would interpret this as being within the statutory definition of a fee. However, there is a case in New York, People v. Block 71 misc. 2d 714, which defined the term "fee", based on the Websters Dictionary, as "Compensation, often a fixed charge, for professional service or for special and requested exercise of talent or of skill, as by an artist; as a fee for consultation; a retaining fee." The court emphasized the use of "fee" "restricts the purview of the statute." The court noted that an exchange of sex for a "mink coat" would be outside the scope of the statute. In the case of crypto-currencies, such as Bitcoin or Litecoin, it would depend on whether police could attach your wallet ID to you. This would probably depend on whether you transferred the money from an exchange or a wallet, The case law on this issue is pretty limited. But I would strongly suggest you assume this conduct is illegal just to be safe
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