Custody

Published on: March 25, 2015

Court Decides Custody in Light of Sexual Abuse Allegations

by Stephen Bilkis

Following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent wife sole legal and physical custody of the parties’ minor child, D (born in 2000), and established a visitation schedule for petitioner. Family Court did so with great hesitation, noting respondent’s marked weaknesses as a parent, including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner.

Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child’s school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

Published on: March 18, 2015

Court Discusses Petition for Tax Exemption

by Stephen Bilkis

The Plaintiff, claims that it is entitled to a real property tax exemption pursuant to Real Property Tax Law [“R.P.T.L.”] §§ 420(a),(b)1 and 4622 for the years 2004 and 2005 for its property located at 32 College Road, Monsey, New York within the Town of Ramapo. The trial of this matter took place on February 15, 2006 during which witnesses testified on behalf of the Congregation and the Defendants. After a careful review the trial record and exhibits and the excellent post trial memoranda of law including findings of fact and conclusions of law submitted by the parties the Court is now prepared to render its Decision.

The Congregation was organized as a religious corporation, the Certificate of Incorporation5 of which provides” SECOND: The purposes for which this corporation is formed are. To conduct and maintain a House of Worship in accordance with orthodox Jewish custom and traditions to promote the religious, intellectual, moral and social welfare among its members and their families, to promote and increase interest in the study of the Torah, by maintaining classes for the teaching of the customs, traditions and mode of worship of the orthodox Jewish faith. FIFTH: The principal place of worship of the corporation shall be located at 32 College Road, Monsey, New York”.

Published on: March 3, 2015

Court Listens to Case Dealing with Article 16 of the CPLR

by Stephen Bilkis

The issue raised in this case involves the application of Article 16 of the CPLR and its effect on the instructions to be given to the jury concerning apportionment of fault between tortfeasors, one of whom was negligent and the other an intentional tortfeasor, not a party to the lawsuit.

Plaintiff and her husband had an ongoing marital dispute. He had in the recent past thrown a substance in plaintiff’s eyes, temporarily blinding her, stolen her car and threatened to kill her. On January 8, 1992, plaintiff obtained a Temporary Order of protection against her husband from the Family Court Queens County. The order was renewed by that court on January 27, 1992 and was in effect on the night of the incident which gave rise to the suit against the County, February 13, 1992. The Family Court had also issued a warrant for the husband’s arrest.

Published on: October 29, 2014

Court Discusses Custody of Allegedly Abused Child

by Stephen Bilkis

In related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County, which, upon a decision of the same court, made after a fact-finding hearing, dismissed the petitions.

Article 10 of the Family Court Act defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child’s care ‘commits, or allows to be committed, a sex offense against such child”, quoting Family Ct. Act § 1012[e][iii]. A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker.

Published on: October 27, 2014

Court Decides Grandparent Custody Case

by Stephen Bilkis

The subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2 1/4 years and 1 1/4 years of their lives, respectively. After the Administration for Children’s Services filed a petition in a separate matter alleging neglect against the children’s mother, the children were placed with the petitioner on March 1, 2002. However, on March 6 or 8, 2002, the children, who were then 2 1/4 years old and 1 1/4 years old, respectively, were removed from the petitioner’s custody due to the condition of the petitioner’s home. On December 2, 2002, the children were placed with their paternal grandmother, the respondent who was subsequently designated the children’s foster parent and adoptive resource, and they have resided with her since that time.

The petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother’s parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother’s parental rights suggests that the petitioner only accompanied the mother to nine of the mother’s scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.

Published on: July 23, 2014

Court Decides Issue Related to Paternity Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Custody Lawyer said the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Westchester County Family Lawyer said the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

Published on: July 22, 2014

Mother Challenges Denial of Public Assistance

by Stephen Bilkis

A New York Family Lawyer said the mother applied for public assistance and medical aid from the 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 in Bethpage. Without any factual determination concerning the amount of child support actually furnished by her parents, the County Department of Social Services notified her that her application for eligibility for public assistance was being denied. The agency’s position was that she is under twenty-one, her parents are responsible for her, she is residing with her own parents, and they are of sufficient ability to support her. As far as the unborn child, there are no needs to be met for the unborn child.

A New York Custody Lawyer said following a fair hearing proceeding, the hearing officer rendered a decision affirming the denial of assistance by the 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 Nassau County Family Lawyer said thereafter, the mother commenced the Article 78 proceeding wherein she seeks to annul the determination after the fair hearing challenging the alleged practice and policy of the respondents of denying public assistance to married minors on the grounds that they are the legal responsibility of their parents; 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 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: July 21, 2014

Court Decides if Wife is Entitled to Rental Income

by Stephen Bilkis

A New York Family Lawyer said the couple purchased their marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the wife commenced an action for a divorce and ancillary relief. In a pendente lite (pending in court) order, the Supreme Court awarded the defendant husband interim custody of their children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A New York Custody Lawyer said after a nonjury trial, the Supreme Court awarded physical custody of the children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

However, a Queens Family Lawyer said the Supreme Court erred in calculating the husband’s child support obligation based on an imputed annual income of $50,000 per year. That imputation was based upon findings that the husband’s average annual reported income over the years 2000-2003 was $37,264 and that, in addition, he received $2,000 per month in rental income. Those findings alone demonstrate that the husband’s actual income exceeds $60,000 per year. Moreover, at one point during the trial, the husband testified that he actually received rental income in the amount of $2,200 per month and, in addition, earned a couple thousand dollars per year in unreported income from secondary employment.

Published on: July 20, 2014

Plaintiff Files Motion to Compel Child Support

by Stephen Bilkis

A New York Family Lawyer said that, this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel child support of a dependent minor child under the Uniform Support of Dependents Law (Domestic Relations Law, Article 3-A). There is also pending before the Court a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Custody Lawyer said the parties, formerly husband and wife, lived together during their marriage in Queens County. Dissension arose between them, and the wife (the present petitioner) started a separation action, which was tried in 1959, and resulted in a judgment, dismissing her complaint awarding her the custody of the infant daughter (then less than two years old and now four years old), directing the father to pay the mother for the child support the sum of $40 per week, and allowing him weekly visitation. A Nassau Child Support Lawyer said that, it appears that the parties, after the rendition of this judgment, again lived together; dissensions again arose; about April, 1960 the wife left the husband, taking the child with her; thereafter she went to Florida with the child and both still live there.

A Long Island Family Lawyer said that, in June, 1960 this proceeding was commenced in the appropriate court in Florida and transferred to the Children’s Court of Nassau County, where the father now resides. On November 2, 1960, an order was made, directing payment of $40 per week for the child’s support. This order was appealed from. On January 17, 1961, a further order was made, continuing the provisions of the order of November 2, 1960 and further directing payment of $20 per week for the support of the wife. It does not appear that this order has been appealed from. Up to this point, respondent (admitted to the practice of law, but employed and making his living as a salesman) had defended in person. A Nassau Child Support Lawyer said that, on April 6, 1961, by his present counsel, he moved to vacate the order of January 17, 1961, which motion was granted to the extent that on April 27, 1961 the provision of the order of January 17, 1961, providing for payments for the wife’s support was vacated as of March 27, 1961, when, the court had learned, the wife had obtained a decree of divorce in Florida and shortly after married; in all other respects the motion was denied. From such denial an appeal was taken. On April 27, 1961 likewise an order and an amended order were made, continuing the direction for payment of $40 per week for the child’s support; from all of which orders appeals were taken.

Published on: July 19, 2014

Mother Petitions Court for Custody

by Stephen Bilkis

A New York Family Lawyer said on September 16, 2000, Mother and Father, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of said marriage, the Mother 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 on January 19, 2000. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce dated December 21, 2000, which incorporated but did not merge with the Agreement. This notwithstanding, the Mother and Father 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.

A New York Custody Lawyer said that, difficulties apparently ensued between the couple in 2004, prompting the Mother a practicing attorney to commence custody, family offense and child support proceedings against the Father in Nassau County Family Court on January 25, 2005. A Nassau Order of Protection Lawyer said that, a Temporary Order of Protection was issued in the Mother’s favor. There was Child Protective Services involvement with the family. On August 26, 2005, the Family Court entered a Temporary Order of Support ordering the Father to pay temporary support and child care expenses in the sum of $486 biweekly to the Mother. The Father was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

A New York Child Custody Lawyer said that, shortly thereafter, on or about September 14, 2005, the Father commenced an Action for Annulment against the Mother in the District Court of Clark County in the State of Nevada, on the grounds that the Mother 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 Mother failed to answer or appear on that action and a default was declared against her on October 10, 2005. The Eighth Judicial District Court of Clark County, State of Nevada then issued a Decree of Annulment on November 15, 2005, declaring the prior marriage to be “null and void and of no effect,” and restoring each of the parties to the status of a “single unmarried person.”