New York Family Law Blog

Published on: April 28, 2014

Court Rules on Huntley Hearing

by Stephen Bilkis

It is reasonable for a patient to seek the independent advice of two experts before embarking on a course of treatment. Two experts may evaluate the same data and may arrive at different conclusions. But it is illogical for a patient to seek a second opinion immediately thereafter from the same expert who rendered the first opinion.

A New York Family Lawyer said tht primilarly in the Family Court where the same judge presides at the Huntley Hearing and the fact-finding hearing, it is illogical to re-litigate the same issues determined at the preliminary hearing by requiring that the testimony at the Huntley Hearing be repeated at the fact-finding hearing.

A Staten Island Family Lawyer said that nothing contained in this article, however, precludes a defendant from attempting to establish at a trial that evidence introduced by the people of a pre-trial statement made by him should be disregarded by the jury or other trier of the facts on the ground that such statement was involuntarily. Even though the issue of the admissibility of such evidence was not submitted to the court, or was determined adversely to the defendant upon motion, the defendant may adduce trial evidence and otherwise contend that the statement was involuntarily made. In a case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.

Published on: April 27, 2014

Court Discusses Housing for the Homeless

by Stephen Bilkis

A New York Family Lawyer said on this appeal the Appellate Court is asked to review the sufficiency of the New York City Board of Estimate’s compliance with environmental review procedures in implementing a plan to construct 11 transitional residence facilities in various locations throughout the city to house an increasing number of homeless individuals and families seeking shelter. The City of New York is mandated by law and by consent decree to provide housing to every homeless family and individual who so requests.

The city asserts that as of January 1988 it was providing shelter for approximately 8,900 men, 1,300 women and 5,150 families in various locations and types of facilities throughout the city. While the city recognizes that a long-term solution to the problem lies in providing more units of permanent, affordable housing for low and moderate income people, there is also a need for emergency facilities such as shelters, and for transitional residences which are designed to afford a measure of privacy and to provide their residents with intensive social and welfare services and assistance in locating permanent housing. The appellants-respondents contend that these transitional residences will reduce the reliance on expensive hotel space for housing families, improve the quality of housing offered, and alleviate the overburdening of some communities by dispersing the homeless population throughout the city.

A New York Child Custody Lawyer said that in order to implement this plan, the HRA submitted land use review applications for the proposed transitional residence sites to the DCP pursuant to New York City Charter which governs approvals of site selection for capital projects. This was the appropriate procedure and the Court disagree with the petitioners’ contention that these separate, discrete construction projects involved the type of long range plans for the future growth and development of the city which are governed by New York City Charter.

Published on: April 26, 2014

Family Court Reviews Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said that before the Court in this child support proceeding is Respondent’s motion to dismiss the petition, pursuant to Rule 3211(a)(5) of the C.P.L.R., on the ground of res judicata in that Petitioner’s application for the relief she seeks herein was previously denied by the Supreme Court of Bronx County. The undisputed facts and circumstances surrounding this motion are as follows: On March 2, 1979, a judgment granting Petitioner a divorce from Respondent was entered in Supreme Court, Bronx County. The judgment, which contained no provision for child support, expressly stated that “Family Court is awarded concurrent jurisdiction herein.” Thereafter, in the latter part of 1979, Petitioner brought a proceeding in Supreme Court to modify the judgment so as to include child support payments for the parties’ adopted daughter, and their son. Over the objections of Petitioner’s counsel, the Court by order dated February 19, 1980, referred the matter to a Special Referee to inquire and report with respect to the issues of Respondent’s financial status and ability to pay, the needs of the parties, and visitation.

A New York Child Custody Lawyer said that, a hearing before the Special Referee was held on April 24th and April 25th, 1980, and in the course of that hearing, Petitioner’s counsel called Respondent as a witness. In addition, Petitioner herself testified, but following her refusal to answer proper and pertinent questions on cross examination, the Special Referee granted Respondent’s application to strike Petitioner’s testimony. On June 30, 1980, the Special Referee submitted his report to the Supreme Court, Bronx County. Included in the Referee’s report was his recommendation that the petition be dismissed. Thereafter, on August 26th, 1980, the Supreme Court, over Petitioner’s objection, found “that the findings of fact and conclusions of law set forth in the Referee’s report accord with the preponderance of evidence adduced at the hearing held before him, and that no issues remain to be tried,” and granted Respondent’s motion for an order confirming the Special Referee’s report, and dismissing the petition to modify the judgment of divorce so as to include child support payments and visitation. A judgment dismissing the petition was also entered on August 26, 1980, and from that judgment, no appeal was taken by Petitioner.

Published on: April 25, 2014

Court Reviews Regarding Social Services Benefits

by Stephen Bilkis

A New York Family Lawyer said that, in this proceeding filed pursuant to Family Court Act (FCA) Article 3, the New York City Commissioner of Social Services (CSS) seeks to vacate an order of disposition of June 17, 1996 which placed the respondent with CSS following an adjudication of the respondent as a juvenile delinquent and directed CSS “to explore forthwith and attempt to certify as an authorized placement the Tampa Bay Academy of Riverview, Florida.”

A New York Custody Lawyer said, the order further stated that “Once Tampa Bay Academy is so certified, the respondent should be transferred from his current foster home to Tampa Bay Academy forthwith. In a separate proceeding filed in Bronx Family Court pursuant to FCA Article 10, the respondent herein had been adjudicated an abandoned child and had been discharged to CSS. One week later, while living in Monroe County in CSS child custody, the respondent made an admission in Monroe County Family Court that he had committed acts which if he were an adult would constitute the crimes of Attempted Sodomy in the First Degree and Sexual Abuse in the First Degree. A finding of fact based on that admission was made on February 9, 1996 by Monroe County Family Court, which then transferred the proceeding to Bronx Family Court for a dispositional hearing. See FCA § 302.3(4).

A Brooklyn Family Lawyer said that, the dispositional hearing was continued in Bronx Family Court over seven court appearances. (So-called “speedy disposition” was waived.) On June 17, 1996, the Court determined that the least restrictive dispositional alternative consistent with the needs and best interests of the respondent and the community’s need for protection was placement and that placement with CSS was the appropriate placement. See FCA §§ 352.2, 353.3. (By that date, the proceeding had been transferred to New York County Family Court, since the Family Court Judge presiding over the proceeding in Bronx Family Court had been transferred to New York County. An exhaustive national placement exploration was conducted for this respondent, who is deaf, communicates by sign language, and exhibits psychological pathology and sexually deviant behavior. Few appropriate placements presented themselves. The Tampa Bay Academy, however, provides all of the special services that the respondent requires. The presentment agency and the respondent consented to the Court’s June 17, 1996 dispositional order.

Published on: April 24, 2014

Court Decides Guardianship Hearing

by Stephen Bilkis

A New York Family Lawyer said that, a petition has been filed for the appointment of a guardian of the person and property of an alleged incapacitated person (hereinafter known as “the person”). This Court is satisfied that the person was served with the order to show cause and petition by personal delivery at least fourteen days prior to the return date and that all other necessary interested persons required to be served under Mental Hygiene Law section 81.07 were timely served with the order to show cause and petition. Melissa Lucas, Esq., was appointed to serve as the court evaluator.

A New York Custody Lawyer said the hearing was held on October 25, 2011 and December 7, 2011. The person was not present at the hearing. It was determined that he would not be able to meaningfully participate in the proceedings even if they were conducted at his bedside because he is on a trachea tube and is non-responsive. Accordingly, his presence was waived. The person’s son, the person’s other son, the person’s companion, the person’s son-in-law, the person’s brother, the person’s daughter who is the petitioner herein, and the court evaluator testified at the hearing.

A Bronx Family Lawyer said that, the person is 73 years of age. The person presently resides at Bronx, New York. The person was admitted to the nursing home on or about December 21, 2010. The person suffered a stroke (his third) while he was in Puerto Rico on or about September 15, 2010. His daughter, the petitioner, moved him from a hospital in Puerto Rico to Bronx Lebanon Hospital. He was then discharged to the nursing home. The person is currently in a vegetative state and is generally non-responsive. He has a trachea tube extending from an incision in his neck to a machine next to his bed to help him breathe. He is completely dependent on nursing staff for all of his activities of daily living. He has substantial assets including real property and a business in Puerto Rico but is unable to manage his finances, pay his bills or continue to run his business. As a result, the person is in need of someone to provide for his personal needs and property management. The guardianship is required for an indefinite duration.

Published on: April 24, 2014

Court Discusses Use of Forensic Evidence in Custody Dispute

by Stephen Bilkis

In this Custody action, the issue involved is of import not only because it appears to lack any precedent, but even more so, because it goes to the very heart of the present and future effectiveness of the forensic and probation referral procedure utilized by the Nassau County Supreme Court as an aid in the determination of contested custody actions.

A New York Family Lawyer said that pursuant to this procedure the court, with the consent of the parties and counsel, ordered a forensic evaluation of the parties and infant issue through the Nassau County Department of Mental Health, Division of Forensic Services, and a probation report through the Probation Department of Nassau County.

Thereafter, a New York Child Custody Lawyer said in deeming the recommendations contained in the reports to be adverse to the interest of his client, counsel for the defendant-wife referred her to a private psychiatrist for examination and evaluation.

Published on: April 23, 2014

Foster Parents Seek to Adopt Child

by Stephen Bilkis

By court order, the complainants, who are foster parents, seek the return of a four year old child who was placed with them for prospective adoption by the county’s department of social services, to whom the natural parents had surrendered the child custody.

A New York Family Lawyer said the child was placed with them after the complainants had been approved as adoptive parents following an investigation and observation over a protracted period. The child remained in their care under periodic supervision and review by a caseworker, until he was removed.

The removal of the child followed an investigation of an incident and was reported to the department. The reported incident involved an alleged severe beating of the child by the foster mother, who allegedly had inflicted massive bruises and welts on the child’s back, buttocks and thigh area. A caseworker investigated the report and the caseworker, who had been supervising the child’s guardianship, also investigated it the following day.

Published on: April 22, 2014

Court Decides Custody Battle

by Stephen Bilkis

A New York Family Lawyer said in the instant case, the mother and the father both filed petitions in the Nassau County Family Court seeking child custody. The father withdrew his petition and the court granted the mother’s petition without conducting an evidentiary hearing. The father filed a petition in the Queens County Family Court, seeking modification of the Nassau County order to award him child custody. After a full evidentiary hearing in the Family Court of Queens County, that court denied the father’s petition.

The father failed to present evidence of a change in circumstances during the three-month period between the granting of the mother’s child custody petition in Nassau County and his petition for modification in Queens County sufficient to warrant a change in custody. Moreover, the testimony and recommendations of the forensic examiner and the child’s therapist that a change in child custody would be detrimental to the well-being of the child were uncontradicted by the record and properly credited by the Family Court. The court’s determination that a change in custody would not be in the child’s best interests was based upon consideration of the totality of the circumstances and had a sound and substantial basis in the record.

A New York Custody Lawyer said in a proceeding to determine child custody, in which the mother cross-petitioned for modification of an order of the Bronx County Family Court granting the father child custody of the parties’ daughter, the father appeals from a dispositional order of the Nassau County Family Court which, after a hearing, granted permanent child custody of the parties’ two children to the mother.

Published on: April 21, 2014

Petitioner Discovers Previous Divorce Proceedings Never Finalized

by Stephen Bilkis

A New York Family Lawyer said a husband and wife, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of the said marriage, the wife believed that she had been divorced from her prior husband with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce which incorporated but did not merge with the Agreement. This notwithstanding, the husband and wife lived as husband and wife with the son of the prior marriage and on May 15, 2001, they had the child subject to this proceeding.

Difficulties apparently ensued between the couple in 2004, prompting the wife a practicing attorney to commence child custody, family offense and child support proceedings against her husband in Nassau County Family Court. A Temporary Order of Protection was issued in the wife’s favor. There was Child Protective Services involvement with the family. The Family Court entered a Temporary Order of Support ordering the husband to pay temporary support and child care expenses in the sum of $486 biweekly to the wife. The husband was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

Shortly thereafter, a New York Custody Lawyer said the husband commenced an Action for Annulment against the wife in the District Court of Clark County in the State of Nevada, on the grounds that the wife was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the wife failed to answer or appear on that action and a default was declared against her. The Judicial District Court issued a Decree of Annulment declaring the second marriage to be null and void and of no effect, and restoring each of the parties to the status of a single unmarried person. Relevantly, the Decree also adjudged and decreed that each party be awarded his or her property as determined in accordance with Nevada law and that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her.

Published on: April 20, 2014

Father Petitions for Custody of Child Born Out of Wedlock

by Stephen Bilkis

A New York Family Lawyer said this proceeding involves a natural father’s effort to gain child custody of his daughter born out of wedlock, from the respondent Nassau County Department of Social Services to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

Meanwhile, a New York Custody Lawyer said only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought child custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for child custody of his daughter. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

A Queens Family Lawyer said the critical issue presented is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child’s best interests. In denying the petitioner father’s application for child custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing child custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.