Custody

Published on: May 2, 2014

Department of Social Services Files Petition to Remove Child from Home

by Stephen Bilkis

A New York Family Lawyer said that, on or about July 5, 2007, the Nassau County Department of Social Services (hereinafter “DSS”) filed petitions against the respondent, seeking the removal of her two children. On the same date, the respondent filed petitions seeking the return of her sons pursuant to FCA § 1028. A hearing was held and on July 24, 2007 respondent’s return petition was denied and the children remained in the physical custody of DSS.

A New York Child Custody Lawyer said that, the respondent consented to a finding of neglect in the underlying neglect petition. The Order of Custody to DSS was vacated; a one year Order of Supervision was entered and the children were returned to the respondent. The terms of the Order indicated that the respondent was to cooperate with DSS and Preventive Services, and attend the PACT program. Thereafter, the respondent voluntarily placed the children in foster care, as she reported to be suffering from depression at that time. The children were placed in the home of a certified foster parent, where they continue to reside. The first subject child was three years old and the other was ten months old at the time that they were placed in the foster parent’s home.

A Bronx Family Lawyer said that, the respondent gave birth to her third child, Emma P., on October 10, 2008. On February 9, 2009, DSS filed a neglect petition against the respondent, on behalf of this child, in Nassau County. On February 25, 2009 the Administration for Children’s Services (hereinafter “ACS”) additionally filed neglect petitions against the respondent in Queens County where the respondent had been living regarding the same child. The Queens County Court paroled the child to the non-respondent father, with supervision by ACS. Additionally, the Court issued a Temporary Order of Protection, which vacated the respondent from the home, prohibited the respondent from having any contact with the child if under the influence of drugs or alcohol and only allowed for agency supervised visits. Upon consultation with this Court, the case was transferred to Nassau County Family Court on or about April 2, 2009.

Published on: May 1, 2014

Court Decides on on New Job for Family Court Hearing

by Stephen Bilkis

A New York Family Lawyer said that, in a custody proceeding pursuant to Family Court Act article 6, and a related habeas corpus proceeding, the attorney for the children appeals (1), by permission, from an order of the Family Court, Kings County, dated May 3, 2010, which, without a hearing, awarded temporary child custody of the children to the father until March 14, 2011, and (2) from an order of the same court dated May 21, 2010, which sustained the father’s petition for a writ of habeas corpus and directed the mother to return the children to the father. By decision and order on motion of this Court dated July 12, 2010, enforcement of the orders was stayed pending the hearing and determination of the appeals.

A New York Child Custody Lawyer said that, this case involves a custody dispute between the father of the subject children, who are teenagers, and their adult sister, who had custody of the subject children, based upon an agreement with the mother, which was later revoked.

The issue in this case is whether the court erred in granting custody to the father.

Published on: April 30, 2014

Court Rules on Mother’s Motion for Attorney Fees

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding, a father appeals from an order of the court, which denied his objection and granted the mother’s motion for an award of an attorney’s fee.

Subsequently, the court ordered to reverse the previous decision, on the law, without costs or disbursements, so much of the order, as granted the mother’s motion for an award of an attorney’s fee. The matter is also remitted to the family court, for a new determination of the mother’s motion.

A New York Child Custody Lawyer said sources revealed that in a previous related case, the court stated that even if the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless controlled by the equities of the case and the financial circumstances of the parties.

Published on: April 29, 2014

Court Decides Juvenile Delinquency Proceeding

by Stephen Bilkis

New York Family Lawyer said in this juvenile delinquency proceeding, a boy moves to preclude the presentment agency from offering identification evidence at the fact-finding hearing on the ground that it failed to provide timely and adequate notice of its intention to do so as required.

A boy was charged on the instant petition which alleges that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, grand larceny in the fourth degree and attempted assault in the third degree.

A New York Child Custody Lawyer said according to the appeal, the boy was one of a group of individuals who punched the complaining witness in the head and stole his hat and cell phone.

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 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 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.