Custody

Published on: April 4, 2014

Court Discusses Family Member Grievance Hearing

by Stephen Bilkis

A New York Family Lawyer said that, pro se petitioner brings this Article 78 proceeding and seeks a judgment reversing respondent New York City Housing Authority’s (“respondent” or “Housing Authority”) denial of her application to open her default for failing to appear at her remaining family-member grievance hearing. Petitioner claims she has succession rights for Apartment 2D at 1149 229th Drive North, Bronx, New York (Premises), which was previously leased to her deceased mother. Petitioner defaulted in appearing for her remaining-family-member grievance hearing and, following an inquest, the Housing Authority determined that petitioner did not qualify as a remaining family member. The Housing Authority denied petitioner’s application to open her default because she failed to explain her delay in making the application and due to her delinquency in use and occupancy rental payments. Petitioner challenges this determination. Respondent opposes.

The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development (HUD) that it has admitted individuals and families in accordance with HUD regulations. HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent’s approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition.

A New York Custody Lawyer said that pursuant to Housing Authority regulations, there are two exceptions to its formal tenant selection process where a tenant of record can lawfully add “authorized family members” to live in their unit. The first is where the Housing Authority allows another individual to become a permanent member of the tenant’s household. To add a person to the household, the tenant of record must obtain the written consent of the building development manager. The second exception allows a remaining- family -member to take over a lease if the tenant of record either moves or dies. To qualify under this exception, the remaining-family-member must have moved into the apartment lawfully, remained in the apartment continuously, and be eligible for public housing. Lawful members of a tenant’s household include the original tenant family, a person born to the tenant of record or to an authorized permanent family member, a person legally adopted by or judicially declared to be the ward of the tenant of record or an authorized family member, or a person who receives written permission to reside in the apartment permanently. In each instance, the person claiming remaining- family -member status must have become an authorized family member of the tenant household and must have remained in the apartment continuously from their date of entry.

Published on: April 3, 2014

Court Decides Case Involving Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant’s arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court’s 2010 decision. Defendant also challenges the Court’s jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties’ written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.

Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy “perico,” a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.

Published on: April 2, 2014

Court Decides Whether to Vacate Child Support Judgment

by Stephen Bilkis

A New York Family Lawyer said that, this proceeding was commenced by Petitioner, pro se, by Order to Show Cause dated January 29, 2009, pursuant to Civil Practice Law and Rules (“CPLR”) Article 78 to vacate a Child Support Judgment of Arrears issued in favor of respondent, Office of Temporary Disability Assistance, Division of Child Support Enforcement (“OTDA”), on the grounds that “it has been determined by law to be uncollectible.”

A New York Child Custody Lawyer said that, before responding to the merits of the Petition, OTDA cross moved to dismiss the petition on three grounds, viz: 1. The Petition failed to state a cause of action. 2. That pursuant to General Obligations Law § 17-101, the Statute of Limitations is inapplicable, and 3. Delgado has failed to exhaust his administrative remedies. OTDA further seeks dismissal claiming that OTDA is not the proper respondent entity in a proceeding of this nature.

A New York City Family Lawyer said that, on August 23, 1983, Family Court, Bronx County, ordered petitioner to pay the new York City Department of Social Services (“DSS”) $90.00 per month or about or about $5,280 per year, commencing August 29, 1983, to reimburse DSS with respect to support for his two sons, Gabriel, born February 3, 1981 and Alexander born March 5, 1983 (the “children”). DSS was to receive the funds because the children and their mother were on public assistance. By reason of petitioner’s failure to make the required payments, DSS took petitioner to Bronx Family Court, which, on November 6, 1996, entered an order fixing the arrears due to DSS at $28,801.35 and modified the 1983 order to terminate is prospectively, thereby terminating petitioner’s obligation to provide further support for his children after such date.

Published on: March 31, 2014

Court Decides ACD Case

by Stephen Bilkis

A New York Family Lawyer said that, these motions, numbers 98 and 100, seeking intervention and temporary relief are consolidated for disposition. In this long running case that this court has presided over since its inception and that is now post trial, two mothers seek to intervene on behalf of themselves and their families, requesting that this court stay their imminent eviction from homes where they have resided for many years. They claim that Social Services Law Â§ 350 (1) (a), the decision of the New York State Court of Appeals and this court’s decision after trial and judgment require that shelter allowances, under the Safety Net Assistance (SNA) program (Social Services Law Â§Â§ 343-360) and the Temporary Shelter Supplements (TSS) regulations (18 NYCRR 370.10) are adequate to cover the reasonable costs of housing in New York City.

A New York Custody Lawyer said that, the original plaintiffs brought this action under the public assistance program known as Aid to Dependent Children (ADC). ADC was the state promulgation of the federal Aid to Families with Dependent Children (AFDC) program. In 1990, the New York Court of Appeals determined that New York’s Social Services Law Â§ 350 (1) (a) imposes a duty on the State Commissioner of Social Services to establish shelter allowances for ADC recipients bearing a reasonable relationship to the cost of housing in New York City. In so holding, the Court of Appeals relied on the statute’s express language: “1. (a) Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the child support, maintenance and needs of one or both parents if in need, and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relative are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible. The social services official may, in his discretion, make the incapacitated parent the grantee of the allowance and when allowances are granted for the aid of a child or children due to the unemployment of a parent, such official may make the unemployed parent the grantee of the allowance.” Section 350 (1) (a) remains unchanged today.

A Queens Family Lawyer said that, the Court of Appeals then remanded the case back to this court for a determination as to whether the shelter allowances that the Commissioner had established previously in 1988 were adequate under the statutory standard. After a 3Â½-month trial, this court found that the 1988 shelter allowances did not bear a reasonable relationship to the cost of housing in New York City and ordered the Commissioner to “develop and submit to the Secretary of State for promulgation by March 2, 1998 or, on application to the court, by a reasonable date thereafter, a proposed schedule of shelter allowances for and any successor program.” The Appellate Division affirmed this decision. To date, the Commissioner has not complied with the court’s order, but recently, on July 19, 2002 and in February 2003, the Commissioner proposed regulations to increase shelter allowances. Thus, the shelter allowances for New York City remain inadequate.

Published on: March 30, 2014

Court Decides Custody Battle

by Stephen Bilkis

Two analogous cases were brought before the court for determination.

In the first case, the mother appeals from an order of the Family Court, Kings County in this custody proceeding pursuant to Family Court Act article 6 dated 2 April 1993, for after a hearing was conducted, the court awarded permanent custody of the parties’ four-year-old daughter to the father.

A New York Family Lawyer said the court orders the reversal of the order insofar as appealed from, on the law and the facts, without costs or disbursements. The mother is awarded permanent custody of the parties’ four-year-old daughter, and the matter is remitted to the Family Court, Kings County, for a determination of a visitation schedule for the father.

Published on: March 29, 2014

Court Decides Case Dealing with Family Court Act

by Stephen Bilkis

The facts of this case constitute good cause or special circumstances justifying the 12-day extension of the time constraints of Family Court Act § 350.1(1). A New York Family Lawyer said that, on January 10, 1992, the 13-year-old appellant was arrested. He was charged with acts which, if committed by an adult, would have constituted the crimes of attempted grand larceny in the third degree, attempted grand larceny in the fourth degree, criminal mischief in the third degree, and criminal mischief in the fourth degree. He was remanded to a secure facility on January 13, based upon a history of absconding from Children’s Village at Dobbs Ferry, a non-secure setting, several times in the prior several months, and upon his posing a serious risk of not appearing in court on the return date. At a fact-finding hearing on January 16, 1992, he admitted to having committed acts constituting two counts of criminal mischief in the fourth degree.

A New York Custody Lawyer said that, on that date, his Law Guardian requested that the dispositional hearing be adjourned from Westchester to Brooklyn, as that was the appellant’s last county of residence. That application was joined in by the Westchester County Attorney, and the matter was transferred to Kings County for a dispositional hearing. The fact-finding order was entered on January 28, 1992.

A Westchester County Family Lawyer said that, the appellant appeared in the Family Court, Kings County, seven days later, on February 4, and was assigned a new Law Guardian. On that date, the presentment agency asked for continued remand for purposes of conducting a probation investigation and preparing a report, a mental health study, and an exploration of placement, and in order to ascertain the whereabouts of his parents or guardian and his status at Children’s Village at Dobbs Ferry. Over the Law Guardian’s objection, the court adjourned the matter for those purposes, and continued the remand because no parent or guardian was present in court, as well as because there was substantial probability that the appellant would not appear on the return date. The matter was adjourned to February 10, 1992, for disposition. Family Court Act § 350.1(1) provides that in cases such as this, the dispositional hearing shall commence 10 days after entry of the fact-finding order. That statutory 10-day period expired on February 7, 1992.

Published on: March 28, 2014

Court Decides Two Cases Involving Family Court Act 651 (b)

by Stephen Bilkis

Pursuant to the Family Court Act § 651(b) and Domestic Relations Law § 72, two petitions are now before the court.

A New York Family Lawyer said the first petition filed on 5 December 2008 by A (birth father) seeks custody of and/or visitation with the child B (D.O.B. 04/01/2004).

The second petition filed on 5 December 2008 by C, mother of B, seeks custody of and/or visitation with the child, C.

Published on: March 27, 2014

Court Decides Custody Case Where Child was Taken Into State Custody

by Stephen Bilkis

A New York Family Lawyer was born out of wedlock on 29 August 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child’s care. A was placed in a foster home on 29 September 1977 but on 7 November 1977, A’s natural father, B., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, B expressed his desire to visit and financially support the child.

A New York Custody Lawyer said the representatives of Brookwood informed B that the mother, C, had adamantly refused to permit access to the child. B was instructed that, until such time as he formally established paternity, the agency would be bound by the mother’s instructions and he would not be allowed to see A. Brookwood provided B with the name and the address of the Kings County Family Court.

B persistently contacted Brookwood inquiring about A’s welfare, made a couple of visits and was informed that the matter of his paternity could go no further unless A’s mother participated in the process. The mother’s failure to co-operate was cited by B in explaining why he had been unable to establish paternity.

Published on: March 26, 2014

Court Rules on Custody Battle

by Stephen Bilkis

A New York Family Lawyer said in this Family case, in related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County, as, without a hearing, awarded custody of the parties’ children to the father.

According to a New York Child Custody Lawyer, the Family Court entered a finding of child neglect against the mother pursuant to article 10 of the Family Court Act upon the mother’s admission, at a fact-finding hearing, to allegations that she tested positive for marijuana, obtained Xanax from a neighbor, and used both Xanax and marijuana on a regular basis. Additionally, the Family Court, conducted a dispositional hearing, and was concluded thereafter.

At that hearing, evidence was adduced that supported a finding of the mother’s continued drug use, and additional evidence demonstrated the mother’s history of mental health issues, inappropriate conduct during visitation, and inappropriate conduct in making, or having her daughter make, false allegations against the father.

Published on: March 25, 2014

Father Petitions Court for Custody

by Stephen Bilkis

A New York Family Lawyer said that in two related proceedings pursuant to Family Court Act article 10, Appellant appeals, as limited by his brief, from so much of an order of disposition of the Family Court, Kings County, as, after a hearing, only awarded him supervised visitation with the subject child.

The Court, in its decision ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

A New York Child Custody Lawyer said that the appellant contends that he is entitled to unsupervised visitation with his child. Since the Family Court is in the best position to evaluate the testimony, character, and sincerity of the witnesses in weighing the many factors required for a determination of custody, ‘the determination of whether visitation should be supervised is a matter left to the Family Court’s sound discretion and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record’ ” Here, the Family Court’s determination that supervised visitation would be in the child’s best interests have a sound basis in the record.