A New York Family Lawyer the petitioner Administration for Children’s Services (ACS) failed to establish by a preponderance of the evidence that the defendant mother knew, or should have known, that her child A was not being properly supervised when she took a nap. The Family Court then dismissed the branches of the neglect petitions alleging that the defendant mother neglected child A and derivatively neglected the other children in allowing child A to fall out of a window in her apartment.
A New York Child Custody Lawyer said the court finds that the Family Court erred in dismissing the branches of the neglect petitions alleging that the mother failed to protect the children from witnessing domestic violence. ACS established by a preponderance of the evidence that there was a 12-year history of domestic violence between the mother and the respondent father which was witnessed and often required the children to intervene. Moreover, there was sufficient evidence to establish that the children witnessed the incident when respondent father fought with the mother and struck her with a cooking pot. This evidence was sufficient to support a finding of neglect against the mother. Evidence of acts of severe violence between parents in the presence of their children is sufficient to show that the children’s physical, mental, or emotional conditions are in imminent danger of becoming impaired within the meaning of Family Court Act § 1012 (f) (i) (B).
Further, a Suffolk County Family Lawyer said the Family Court erroneously dismissed the branches of the neglect petitions alleging that the mother failed to protect the children from the excessive use of corporal punishment by respondent father. ACS established by a preponderance of the evidence that respondent father used excessive corporal punishment on the children. ACS also established by a preponderance of the evidence that the mother should have known about the use of excessive corporal punishment. This evidence was sufficient to support a finding of neglect against the mother for the failure to protect the children from excessive use of corporal punishment.
A Suffolk County Child Custody Lawyer said the court orders the reversal of the order of the ACS and based on the law and the facts, without costs and disbursements, so much of the order as dismissed the neglect petitions for the failure to protect the children from witnessing domestic violence and from the use of excessive corporal punishment is vacated, those branches of the petitions are reinstated, the petitions to adjudicate Children A, B, C, D, E, F, G and H are granted, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing.
In August 1990, the father was ordered to pay support for his son. During a hearing pursuant to a violation petition, the evidence revealed that the father had failed to pay child support on child’s behalf. As held in the case of Matter of Powers v. Powers failure to pay support as ordered constitutes “prima facie evidence of willful violation. Once prima facie evidence of willful violation had been presented, the burden shifted to the father to offer competent, credible evidence of his inability to make the support payments.
The father offered no credible evidence of his inability to pay the court-ordered support during the time that it had accrued. Even assuming the truth of the father’s allegation that he was disabled and unable to pay, the child had reached the age of majority prior to the time that the alleged disability arose. The father did not pay support although he had money available comprising willful violation. The Family Court did not err in ordering that the father be incarcerated for 90 days if he failed to pay specific amounts of arrears by 1 May 1994, 1 June 1994, 1 July 1994, and 1 August 1994 (Family Ct.Act § 454[3] ).
Similarly, in another case is a support proceeding pursuant to Family Court Act Article 4. The father appeals from an order of the Family Court, Nassau County dated 19 April 1994, which, inter alia, directed that he be incarcerated for nonpayment of child support unless he subsequently paid specified amounts of support arrears by certain dates. By decision and order on motion dated 3 June 1994, the court stayed the enforcement of the order pending hearing and determination of the appeal. However, in light of the passing of the court-ordered dates of payment, the court remits the matter to the Family Court, Nassau County, for a further proceeding to set new payment deadlines.
The court orders the modification by deleting therefrom the words “1 May 1994”, “1 June 1994”, “1 July 1994”, and “1 August 1994”. As so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for further proceedings to set new payment deadlines. The stay of enforcement of the order is continued pending the setting of new payment deadlines by the Family Court.
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