New York City

Published on: February 21, 2014

Court Hears Custody Battle

by Stephen Bilkis

In a child custody proceeding pursuant to Family Court Act article 6, a New York Family Lawyer said the mother appeals, as limited by her brief, from stated portions of an order of the Family Court, Queens County, which, after a hearing, inter alia, granted the father’s petition for sole custody of the subject child.

A New York Custody Family Lawyer said that the mother and the father were married in 2000, and after the birth of the subject child later that year, they lived together in their native country of Peru. After an altercation with the father in January 2006, the mother left the marital home with the subject child. In May 2006, during the pendency of a custody proceeding commenced by the father in Peru, the mother took the subject child to the United States and settled on Long Island with her boyfriend and his family, without informing the father of their whereabouts.

In March 2008, after discovering the whereabouts of the mother and the subject child, and after learning that the mother had, in May 2007, obtained an order from the Family Court, Queens County, awarding her custody of the subject child upon the father’s default, the father commenced this proceeding in the same court, seeking custody of the subject child. The Family Court conducted a hearing on the father’s petition, at which it heard testimony from the father and the mother, as well as a court-appointed forensic psychologist who, inter alia, interviewed the parties and the subject child and rendered a comprehensive evaluation specifically addressing the impact on the subject child of a change in custody.

Published on: February 20, 2014

Appellant Brings Motion for Final Accounting

by Stephen Bilkis

A New York Family Lawyer said that, in a guardianship proceeding pursuant to Mental Hygiene Law article 81, in which the successor guardian of the person and property of the incapacitated person moved to settle his final account, the successor guardian appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, entered January 4, 2011, as, upon judicially settling his final account, after a hearing, imposed a surcharge against him in the sum of $123,506.59 and denied him commissions and an attorney’s fee, and the Public Administrator of Queens County, cross-appeals, as limited by her brief, from so much of the same order as denied her request, made in connection with her objections to the final account, to include 9% interest on the sum surcharged.

A New York Child Custody Lawyer said that, on July 23, 2004, the attorney (hereinafter the appellant) was appointed the successor guardian of the person and property of the who was then a 76-year-old incapacitated person. In April 2007, the appellant appointed his wife, as the incapacitated person’s “nurse geriatric care manager.” The appellant’s wife provided geriatric care management services to the former through a solely-owned company named Family Care Connections, LLC (hereinafter Family Care), which she formed in 2007. Family Care received total payments from the appellant, as Albert K.’s successor guardian, in the aggregate sum of $111,881.98.

A Queens Full Custody Lawyer said that, in an order dated October 13, 2009, the Supreme Court confirmed a report of the appointed court examiner regarding the appellant’s accounts, and directed the appellant to appear at a hearing to address the payments made to Family Care on the incapacitated person’s behalf and, inter alia, whether the appellant should be surcharged for such payments. At the hearing, the appellant’s wife testified about her credentials and experience, and described the services she provided to the incapacitated person. At his home in April 2007, this included managing and training full-time health care aides, until he was hospitalized in October 2007. Although the incapacitated person never returned home after his initial hospitalization in October 2007, and received full-time care at the various facilities where he subsequently resided, the appellant’s continued to provide him with, among other things, full-time health care aides until he died in a nursing home on July 29, 2009.

Published on: February 19, 2014

Court Determines Placement of Children

by Stephen Bilkis

A New York Family Lawyer said a couple was married and the mother gave birth to their child later that year. They lived together in their native country. But, after an argument that happened between the couple, the mother left the marital home with her child.

Thereafter, during the pendency of a custody proceeding initiated by the father, the mother took her child and settled with her new boyfriend and his family, without informing the father of their location.

A New York Child Custody Lawyer said that subsequently, after the father discovers the location of the mother and their child, and after learning that the mother had obtained an order from the family court with regards the custody of their child upon the father’s default, the father initiated a proceeding in the same court, seeking child custody.

Published on: February 18, 2014

Court Decides Termination of Parental Rights Proceeding

by Stephen Bilkis

A New York Family Lawyer said by amended petition, the petitioner alleges that the child is an abused and neglected child within the meaning of Family Court Act. The petition further alleges that the respondent woman is the mother of the child and that the man, a non-respondent in this proceeding, is the child’s putative father. More specifically, the amended petition alleges, in pertinent part, that the court found that woman has abused and neglected her son based upon the fact that her daughter drowned in a bathtub while in the care of the mother. The respondent mother admitted to leaving the child unattended in the tub of water for several minutes and she was ultimately convicted of manslaughter for the death of the child. The court entered a dispositional order directing the respondent to complete domestic violence counseling, individual counseling and family counseling, but she has failed to do so. In addition, a termination of parental rights proceeding is pending against the mother in Family Court with respect to the child Sean. In addition, the petitioner alleges that the respondent mother suffers from a chronic and severe mental illness and that, due to that mental illness, the child is at risk of becoming an abused and neglected child.

A New York Child Custody Lawyer said the initial appearance upon the petition was conducted on April 3, 2002. On that date, the respondent mother appeared before another Family Court Judge who assigned the counsel to the respondent, issued an order paroling child custody to her putative father and directed that the respondent have only supervised visitation with the child. Thereafter, the Commissioner filed the amended petition.

A Nassau County Family Lawyer said that prior to the filing of the child protective petition, a petition had been filed against the mother pursuant to Social Services Law by the Children’s Services, an authorized child care agency, seeking termination of her parental rights to her son, an older half-sibling of the child. That petition alleged that the mother was mentally ill within the meaning of Social Services Law and that she had permanently neglected her son within the meaning of Social Services Law. In connection with the termination of parental rights proceeding, the County court directed that the respondent woman be examined by a licensed psychologist on the staff of the Court Mental Health Services Clinic.

Published on: February 17, 2014

Petitioner Brings Case to Collect Back Child Support

by Stephen Bilkis

A New York Family Lawyer said the decree of divorce was entered to dissolve the bonds of matrimony existing between a couple, restoring each to the status of a single person, awarding to the mother the care, custody and control of their minor children, and directing the father to pay to the mother $10 a week for the care, maintenance and support of each minor child.

The divorce decree was based on the ground of three year’s separation obtain by the mother with the father’s agreement by his execution and filed waiver, and appearance in the action.

The mother shortly remarried and her children remained with her. The step father appeared to be close to them and have had almost no contact with the father over the intervening years.

Published on: February 16, 2014

Court Discusses Termination of Parental Rights Based on Neglect

by Stephen Bilkis

A New York Family Lawyer said the child in question is mentally retarded and suffers from cerebral palsy and ataxia. A neglect finding was entered against the mother, and the child was placed in the custody of the father. Several months later, the child suffered a broken leg while under the care and supervision of the father’s friend, and he was then placed in foster care. Since that time, due to his multiple handicaps, the child has been placed into six different foster homes.

A permanently neglected child is defined as one who is in the care of an authorized agency and whose parent has failed for a period of more than one year substantially and continuously or repeatedly to maintain contact with or plan for the future of the child notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. It has been said that in a proceeding to terminate parental rights based on permanent neglect, the threshold consideration is whether the agency has discharged its statutory obligation to exercise diligent efforts to encourage and strengthen the parental relationship.

Moreover, a New York Child Custody Lawyer said when the child care agency has custody of the child and brings the proceeding to terminate parental rights, it has the burden of establishing its diligent efforts by clear and convincing evidence. An agency which has tried diligently to reunite a mother with her child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty.

Published on: February 15, 2014

Court Discusses Case Involving Child Endangerment

by Stephen Bilkis

A New York Family Lawyer said an institution for children’s welfare requested to the court a decision without trial against a mother asserting that there are no genuine issues of fact. They also request for an order finding that the child is a neglected child and his sibling, a derivatively neglected child.

In support of the motion, the complainant submitted the transcript from a criminal court proceeding, containing the mother’s allocution to the endangering of the welfare of a child and her acknowledgment that on one occasion she hit her child with an open hand causing a bruise or a black eye, but no injury.

The aforementioned matter started when the institution filed a neglect petitions against a mother alleging that her child was a neglected child because the mother inflicted excessive corporal punishment against him, causing the child to sustain a bruises to his right eye. In addition, the petitions allege that the child reported that his mother has beaten him on prior occasions with a belt.

Published on: February 14, 2014

Mother Accused of Neglect During Divorce Proceedings

by Stephen Bilkis

A New York Family Lawyer said in two related proceedings pursuant to Family Court Act, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County, as, after a fact-finding hearing, found that she neglected the subject children and placed them in the custody of the Commissioner of Social Services of Kings County until the completion of the next permanency hearing.

A New York Custody Lawyer said the order is modified by deleting the provision thereof placing the subject children in the custody of the Commissioner of Social Services of Kings County, the order is affirmed as appealed from without costs or disbursements, and the matter is remitted to the Family Court for a dispositional hearing and a new disposition thereafter.

The findings of neglect as to the subject children were supported by a preponderance of the evidence. The mother’s contention that the Family Court deprived her of due process by limiting her testimony as to the skin condition of one of the children is unpreserved for appellate review, as it was not raised before the Family Court, and, in any event, is without merit.

Published on: February 13, 2014

Father Appeals Custody and Visitation Ruling

by Stephen Bilkis

A New York Family Lawyer said in a custody and visitation proceeding, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County, as, after a hearing, granted those branches of the separate motions of the mother and the subject children which were to dismiss that branch of his petition which sought to modify an order of custody and visitation on consent of the same court, so as to award him reasonable visitation with the subject children, and dismissed that portion of the proceeding.

A New York Child Custody Lawyer said that the subject children resided in California until the mother relocated with them to New York. In 2008, the mother filed a petition for sole legal and physical custody of the children. The father, who remained in California, submitted a sworn written response, wherein he consented to the mother’s custody of the children, who reportedly have special needs, but requested visitation.

Thereafter, an order of custody and visitation on consent was thereafter issued by the Family Court, awarding custody to the mother, and liberal but unspecified visitation to the father, “as the parties arrange and agree.” Two years later, the father commenced the instant proceeding by filing a petition requesting custody of the children or, alternatively, reasonable visitation. A hearing was held and, at the close of the father’s case, the mother and the subject children moved to dismiss the petition. The Family Court granted the motions, and dismissed the proceeding in its entirety. On appeal, the father challenges the dismissal of that branch of his petition which was for an award of reasonable visitation.

Published on: February 12, 2014

Guardian Seeks to Terminate Parental Rights

by Stephen Bilkis

The law guardian, on behalf of the subject child, moves to vacate a judgment, terminating the natural mother’s parental rights. The sole basis for the law guardian’s motion is that the subject child, now fourteen years of age, does not wish to be adopted by his maternal aunt with whom he has lived since the age of seven, in light of his affection for his mother. Initially, the law guardian cited no statutory basis for her motion.

A New York Family Lawyer said that the petitioner argues further that none of the statutory bases established by CPLR 5015 applies in this case. Petitioner contends that the only conceivable statutory ground for setting aside the judgment would be the existence of newly discovered evidence, which had it been introduced at trial, would probably have produced a different result. Petitioner further contends that the child’s change of mind regarding adoption is not evidence which would probably have produced a different result had it been introduced at the dispositional hearing on the petition to terminate the mother’s parental rights. The law guardian contends that the child’s change of mind is evidence of the sort which requires a new dispositional hearing, if not a dismissal of the termination petition.

Procedurally, a New York Child Custody Lawyer said the court concludes that Petitioner’s contention that the proceeding is governed by CPLR 5015, is correct. Although the law guardian contends that this court has inherent authority, under the doctrine of parens patriae, to set aside the previous judgment in the best interest of the subject child, the court’s powers are strictly defined and delimited by statute. Nothing in the Family Court Act or the Social Services Law authorizes the court to vacate a judgment committing custody and guardianship to a petitioning agency, once the judgment is entered. Unlike article 10 of the Family Court Act, which contains specific statutory authority to set aside, modify or to vacate any order issued in the course of a proceeding under that article, no such authority is conferred by any provision of Family Court Act article 6, which governs proceedings to terminate parental rights for permanent neglect of the subject child.