New York City

Published on: September 24, 2013

Father Appeals Child Support Calculations

by Stephen Bilkis

A New York Family Lawyer said that, in the parties’ separation agreement, which was incorporated but not merged into the judgment of divorce, the father agreed that his child support obligation for a given year would be 25% of his gross income for the prior year. On a prior appeal in this case, this Court found that it was error for the Hearing Examiner to rely on the father’s gross income from 1996 to calculate his child support obligation for 1998, and to fix that obligation from 1998 onward.

A Suffolk Child Support Lawyer said that, after that appeal, the Child Support Enforcement Bureau of the Suffolk County Department of Social Services (hereinafter the Bureau), which oversaw the father’s account with the Suffolk County Support Collection Unit, moved in the Family Court to have the court calculate the father’s child support obligation from 1998 onward. The Family Court referred the matter to the Hearing Examiner, who, by order dated November 14, 2001 (hereinafter the Hearing Examiner’s order), calculated the father’s child support obligation “effective” December 1, 2001. Contrary to the father’s contention, the court properly entertained the Bureau’s application.

The issue in this case is whether the father’s child support obligation should be re-calculated.

Published on: September 23, 2013

Court Decides on Case Involving Laches

by Stephen Bilkis

This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.

A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.

The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.

Published on: September 19, 2013

Court Discusses Section 1055 of the Family Law Act

by Stephen Bilkis

It was on August 11, 1998, when a child was found abandoned by police officers in a bedroom of the home of respondent, (the child’s mother). The nine-year-old child had been bound with electrical cords, hooded with a pillowcase tied around his neck, and gagged with a sock stuffed in his mouth and secured by electrical tape wrapped around his face. A New York Family Lawyer said the child’s arms and legs had been tied so that he was forced to remain standing in a cruciform position; he was otherwise naked, and loud music was left playing in the room. The door to the room was taped shut. When discovered, the child had been tied up since August 7, 1998; he was found to have sustained several old and healing cuts and bruises, whip marks, and numerous scars and lacerations.

The Department of Social Services (hereinafter Department) petitioned against respondents, for a determination that the children are abused children. During the trial, the court issued a Fact-Finding Order and an accompanying decision on July 7, 1999. The court determined the facts recounted above and found that petitioner had adequately proven that the child was the victim of abuse perpetuated by respondent caretakers.

As defined by Family Court Act section 1012 (e) (i) and (ii). The said abuse comprised at least four occasions when the child was tied up and numerous occasions when he was whipped and beaten. The court further concluded that petitioner also met the higher burden of proving by clear and convincing evidence that the respondent repeatedly and severely abused the child. Therefore, a New York Child Custody Lawyer said in addition to the finding of abuse as to both respondents, the court found based upon clear and convincing evidence that the said child was the victim of severe and repeated abuse inflicted by respondent. Hence, an Order of Protection was issued by the court.

Published on: September 15, 2013

Stepmother Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said the issue before the Court is whether a biological mother — who continues to pay child support but agreed to an order permanently suspending her visitation — has abandoned her children rendering her consent unnecessary to their adoption by their step-mother. By amended petitions filed, the petitioner step-mother seeks to adopt the children. By motion filed, the Respondent biological mother moves for summary judgment dismissing the petitions as she does not consent to the adoptions. On April 5, 2007 the Court granted the Respondent’s motion for summary judgment and dismissed the petitions. A written order was entered and mailed to the parties. This written decision memorializes the oral decision issued from the Bench.

The two children unfortunately have been entangled with the Family Court proceedings since early childhood. In 2000, the Respondent was found to have neglected her children. In 2001, there was a custodial dispute between the children’s father and the Respondent resulting in an order of joint custody with primary physical residency with the Father. A New York Child Custody Lawyer said the proceedings were then transferred to the Integrated Domestic Violence Part resulting in the current custodial consent order which grants sole custody of the children to Father and suspends the Respondent’s visitation, additionally ordering that the Respondent shall not seek visitation. The order also states that the Respondent and the Father must share access to the children’s records; and it is also ordered that the Father must keep the Respondent updated regarding issues with the children and provide the Respondent with the children’s school photographs. The Respondent also was ordered to pay $50.00 monthly in child support. The Respondent has consistently paid child support. The Father both has accepted the monthly support payments and has never petitioned for a modification of the Respondent’s support obligation. The children live with the Father and the Petitioner. The Father supports the Petitioner’s applications to adopt the children. The Petitioner contends that she does not need the Respondent’s consent to the adoptions because the Respondent has abandoned the children.

Petitioner can proceed with the adoptions only if she either obtains the Respondent’s consent or can prove that the Respondent has evinced an intent to forgo her parental rights and obligations as manifested by her failure for a period of six months to visit the children and communicate with the children or person having legal custody of the child, although able to do so.

Published on: September 9, 2013

Appellant Unable to Keep Up with Support Obligations Due to Unemployment

by Stephen Bilkis

In a proceeding pursuant to Family Court Act § 454 to enforce an order of support, appellant appeals from an order of the Family Court, Suffolk County which committed him to the Suffolk County Jail for a term of one month.

A New York Family Lawyer said that in a hearing to determine whether an order of commitment should be issued, the appellant testified to his lack of steady employment over the previous several months due in large measure, to his recent felony convictions. The appellant also provided information concerning his recent income and expenses, which included substantial amounts expended to make restitution in connection with his recent convictions. The Court find that the evidence provided by the appellant clearly demonstrated his present financial inability to make child support payments required of him. Under the circumstances of this case, the commitment of the appellant is unwarranted

A New York Custody Lawyer said that since December 1976, the appellant has been subject to an order of support for his child in the amount of $20 per week. Because of the appellant’s failure to make regular payments and the arrears which accrued, a petition for violation of the support order was filed pursuant to Family Court Act § 453. Following an inquest, the court found that the appellant had willfully failed to make the required support payments. No dispositional order was entered at that time but a warrant for the appellant’s arrest was issued. Thereafter, the order of child support was vacated retroactively, presumably because the parties’ child had reached the age of majority. The accumulated arrears were calculated at $2,532.

Published on: September 8, 2013

Appellate Court Contends Marital Property Not Properly Divided

by Stephen Bilkis

The parties were married in June 1973, and had one child, born on 1978. Sometime in 1985, the plaintiff husband moved out of the marital home. The wife cashed the parties’ joint certificate of deposit in the amount of $500. The husband took the parties’ 1984 Mazda pick-up truck, which was subsequently stolen, while the wife retained their 1982 Buick Skylark, which was worth $4000. Initially, a New York Custody Lawyer said the wife instituted a separation action in the Supreme Court, Suffolk County. After the husband brought an action for divorce in the Supreme Court, Nassau County, in which the wife counterclaimed, the wife abandoned her separation action. However, she was granted pendente lite relief of $40 per week in maintenance and $35 per week in child support by order of the Supreme Court, Suffolk County.

A New York Custody Lawyer said that following a trial on the Nassau County action for divorce, in which the husband withdrew his complaint for divorce in favor of the wife’s counterclaim, and after the parties entered into a stipulation providing for an equal division of the parties’ furniture and household effects and the proceeds from any court-ordered sale of the marital residence, the trial court found that (1) the wife was not entitled to an equitable share of the retroactive pay received by the husband because there was no evidence that the cash remained on hand or that it was converted into an asset, (2) the marital residence must be sold within 90 days to provide for the parties’ future living expenses and to pay off the marital debts, (3) the wife owed the husband $4,500 for her retention of the parties’ Buick automobile, valued at $4,000, and for her appropriation of their jointly held certificate of deposit in the amount of $500; the $4,500 was to be paid to him out of the net proceeds from the sale of the marital residence, and (4) the husband owed the wife $3,355 in retroactive maintenance and child support, which was also payable out of the net proceeds of the marital residence. Furthermore, the trial court ordered that the husband pay the wife $60 per week maintenance for a period of five years, and $70 per week in child support, but refused to provide for the payment of the child’s continued parochial school education.

At the trial, it was determined that the wife had been employed by a bank for 15 years. She originally worked full time and was placed in a career management program but had limited her employment to part time upon the birth of the parties’ child. Her 1985 salary was $7,809. The husband had been employed as a corrections officer for 25 months prior to the time of the trial. His projected 1986 salary was $30,732.

Published on: September 7, 2013

Court Referee Claims He Cannot Remain Impartial

by Stephen Bilkis

Respondent was admitted to practice by this court in 1967 and maintains a law office in. By a petition, petitioner, the Committee on Professional Standards, brings two charges of professional misconduct against respondent: (1) making false accusations and assertions against a Family Court hearing examiner in a letter; and (2) improperly communicating with the Family Court hearing examiner.

A New York Family Lawyer said after a lengthy hearing, the referee sustained both charges of misconduct and recommended that respondent be censured and that costs be assessed against him. Petitioner moves to confirm the referee’s report. Respondent opposes the motion and seeks dismissal of the charges.

A New York Child Custody Lawyer said that in December 1990, a resident of Ellenville in Ulster County, met with respondent to discuss a violation of child support petition which had been filed against him in Family Court in Suffolk County where his ex-wife resided. Said client had just appeared, on November 26, 1990, before Suffolk County Family Court hearing examiner in response to an arrest warrant issued after the client failed to appear on the return date of the violation petition. At the hearing, hearing examiner scolded him for his failure to comply with the Family Court’s child support orders and for his failure to appear on the hearing. He also used a threat of jail to emphasize the seriousness of the situation. He advised the client to get an attorney, released him, and scheduled a hearing on the violation petition. he was not accompanied by an attorney at the next hearing. During prior child support appearances before hearing examiner had been represented by retained and assigned attorneys and by a Legal Aid Society.

Published on: September 5, 2013

In a Divorce Action Couple Deals with Mortgage Payments

by Stephen Bilkis

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, as directed her to delete the last paragraph from a proposed mortgage note and paragraph 20 from a proposed mortgage which were to be executed by plaintiff in connection with a transfer of defendant’s interest in the former marital residence.

A New York Family Lawyer said that the parties herein were married sometime in 1972, and have two children, presently aged 10 and 8, respectively. Marital difficulties arose thereafter and in 1981, plaintiff served a summons and complaint upon defendant seeking a divorce on the ground of cruel and inhuman treatment. Defendant interposed a counterclaim for divorce based upon constructive abandonment.

At an inquest conducted, a stipulation was entered into regarding the distribution of marital property, and child support.

Published on: September 4, 2013

Mother Applies for Social Services for Unborn Child

by Stephen Bilkis

Petitioner applied for public assistance and medicaid from the Nassau County Department of Social Services for herself and her unborn child. At the time of the application, she was 20 years old and living separate and apart from her husband and residing in the home of her parents. Without any factual determination concerning the amount of support actually furnished by her parents, the Nassau County Department of Social Services, by letter, notified petitioner that her application for eligibility for public assistance was being denied.

A New York Family Lawyer said following a fair hearing proceeding the hearing officer rendered a decision affirming the denial of assistance by the Nassau County Department of Social Services on the grounds that: When a pregnant woman applies for public assistance for her unborn child and her needs are being met, the unborn child has no unmet needs.

A New York Custody Lawyer said that petitioner commenced this Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of respondents of 1) denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; (2) denying eligibility of married minors for public assistance by assuming resources of legally non-responsible relatives is available for their support without a finding that such resources are in fact being expended for the minor’s support; and 3) denying eligibility of the unborn child for public assistance on the grounds that the pregnant mother’s needs are being met and the unborn child is precluded from establishing independent needs.

Published on: September 3, 2013

Child Protective Services Claims Mother Incapable of Guardianship

by Stephen Bilkis

In this child protective proceeding, a County Social Services/Child Protective Services, seeks adjudication that the subject child is a neglected child within the meaning of FCA (Family Court Advisory).

A New York Family Lawyer said that by petition, CPS (Child Protective Services) alleges that the mother has placed the child at imminent risk of becoming physically, mentally and emotionally impaired, in that the mother’s seriously impaired mental condition renders her unable to provide adequate guardianship, supervision and care to the child. CPS further alleges that the mother has failed to secure suitable housing for the child.

The mother was served with the summons and petition but did not appear on the first court date. At that time, an order was issued placing the child in the custody of maternal grandmother, and an order of protection was issued restricting the mother’s contact with the child to visitation supervised by the Department of Social Services.