Custody

Published on: March 24, 2014

Court Listens to Case Where Child is Put into Foster Care

by Stephen Bilkis

In this case, a New York Family Lawyer said the appellant is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours in February 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, a Children’s Services filed petitions in the Family Court, Queens County, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of child services-supervised visitation.

A New York Child Custody Lawyer said that the children were then paroled to the care of their nonrespondent father and his mother, with whom the father lived. Thereafter, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1 1/2 years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.

A Staten Island Family Lawyer said the question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, the Court finds that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.

Published on: March 23, 2014

Court Decides Custody Issues with Adopted Child

by Stephen Bilkis

A New York Family Lawyer said sometime in January 1952, the parties got married. They lived together as husband and wife until 1959. They had no issues despite the desire of both parties to have children. They were both of the Jewish faith and their marriage was consummated in accordance with orthodox Jewish tradition.

A New York Child Custody Lawyer said that in 1958, the parties allegedly decided to adopt a child. In October thereof, they were advised of the possibility of adopting a child in Florida. Thus, the wife went to Florida for that purpose. The husband bought the round-trip transportation tickets, escorted his wife to the airport in New York and communicated with her by telephone about the child while she was in Florida. When the child was born, the mother made arrangements at the hospital to take the child to Brooklyn where the parties had resided. Shortly after the child’s birth, in November, 1958 the wife did bring the child with her to New York. The husband together with his mother met his wife and the child at the airport, and escorted them to the apartment where the parties lived together. Upon arrival at their home, the wife found a bassinet, diapers and baby bottles. The baby continued to reside there with the husband and wife until they separated.

According to the wife, she and her husband had agreed to adopt the child. According to the husband, on the other hand, he did not agree to the adoption, he never wanted the child and he had no idea how the baby articles got into his apartment.

Published on: March 22, 2014

Family Court Deals with Case Regarding ACS Case

by Stephen Bilkis

A New York Family Lawyer the petitioner Administration for Children’s Services (ACS) failed to establish by a preponderance of the evidence that the defendant mother knew, or should have known, that her child A was not being properly supervised when she took a nap. The Family Court then dismissed the branches of the neglect petitions alleging that the defendant mother neglected child A and derivatively neglected the other children in allowing child A to fall out of a window in her apartment.

A New York Child Custody Lawyer said the court finds that the Family Court erred in dismissing the branches of the neglect petitions alleging that the mother failed to protect the children from witnessing domestic violence. ACS established by a preponderance of the evidence that there was a 12-year history of domestic violence between the mother and the respondent father which was witnessed and often required the children to intervene. Moreover, there was sufficient evidence to establish that the children witnessed the incident when respondent father fought with the mother and struck her with a cooking pot. This evidence was sufficient to support a finding of neglect against the mother. Evidence of acts of severe violence between parents in the presence of their children is sufficient to show that the children’s physical, mental, or emotional conditions are in imminent danger of becoming impaired within the meaning of Family Court Act § 1012 (f) (i) (B).

Further, a Suffolk County Family Lawyer said the Family Court erroneously dismissed the branches of the neglect petitions alleging that the mother failed to protect the children from the excessive use of corporal punishment by respondent father. ACS established by a preponderance of the evidence that respondent father used excessive corporal punishment on the children. ACS also established by a preponderance of the evidence that the mother should have known about the use of excessive corporal punishment. This evidence was sufficient to support a finding of neglect against the mother for the failure to protect the children from excessive use of corporal punishment.

Published on: March 21, 2014

Court Deals with Tragic Case Involving Death of a 14 Month Old Child

by Stephen Bilkis

On 8 May 2007, JG died, fourteen months old, as a result of burns she sustained in a fire that occurred at her apartment on 15 June 2006. The apartment was rented by her mother, TC. A New York Family Lawyer said it was occupied by the decedent, her mother, her infant half-brother AC, and her mother’s boyfriend, RJ. AC and RJ also died as a result of the fire. On 27 August 2007, Mr. FBL, the Monroe County Public Administrator, issued limited letters of estate administration, and thereafter retained C & B, P.C. to commence an action for the wrongful death and conscious pain and suffering against the City of Rochester, the County of Monroe and the landlord, AW. After an extensive discovery over a period of nearly four years, a settlement was reached with AW in the amount of $100,000.00, representing his full liability insurance policy limit, to be divided equally between the three deceased plaintiffs. And, the County and the City jointly offered $30,000.00 to be divided between the three plaintiffs. In addition, the Monroe County Department of Human Services agreed to reduce its claim against the estate for the decedent’s medical care from $68,035.52 to $12,524.50.

A New York Child Custody Lawyer said that due to decedent’s age and nature of her injuries, the Public Administrator proposed allocating the decedent’s portion of the settlement proceeds entirely to the conscious pain and suffering. On 1 July 2011 the Public Administrator filed a Petition to approve the proposed settlement pursuant to EPTL §5-4.6. Meanwhile, a Guardian ad Litem, Atty. FGM, Esq. was appointed to represent the interests of the decedent’s father, RG, who was under incarceration after a felony conviction. On 23 August 2011 at the court return date, both Guardian ad Litem and private counsel Atty. JAK, Esq. appeared on behalf of RG in which FGM was thereafter relieved. On 9 September 2011 JAK entered formal objections on behalf of her client. She argued that both the proposed gross settlement amount and the proposed distribution to the decedent’s estate were inadequate, and she also disputed the alleged withholding of requested documents from the litigation file of C & B, P.C. related to their reported disbursements. Additionally, she argued that C & B, P.C. had an incurable conflict relating to the simultaneous representation of all three plaintiffs in the suit against the landlord.

A Westchester County Family Lawyer on 4 April 2012, the Public Administrator filed an investigatory memorandum analyzing the liability and damages in the underlying estate litigation. He argued that the proposed settlement was appropriate based on issues of proximate cause and contributory negligence, as well as the lack of pecuniary damages due to the young age and unconsciousness of the decedent. Based on this review, the Public Administrator concluded that it was likely that the plaintiffs would have recovered nothing if the case had gone to trial.

Published on: March 20, 2014

Court Decides Domestic Violence Case

by Stephen Bilkis

A New York Family Lawyer said that on the night of 16 October 1985 police officers responded to a telephone call for emergency assistance made by the victim Mrs. A. When they entered Mrs. A’s apartment, they found Mrs. A and her husband, the defendant. Mrs. A, although conscious and alert, had been stabbed repeatedly and was bleeding heavily. The defendant, while not himself, lay unconscious upon the couple’s bed, wounded and covered with blood. Open prescription bottles were found in the kitchen. The windows to the apartment had been shut and the gas jets in the kitchen turned on. Mrs. A was taken to the hospital where she died of her wounds the following day. The defendant was also hospitalized, and although he remained comatose for more than two days he was eventually revived and was charged with his wife’s murder.

The defendant admits to inflicting injuries upon his wife but claims to have acted while his capacity for self-control was overborne by extreme emotional disturbance. In support of this contention, the defendant at his non-jury trial called two witnesses, his psychiatrist, Dr. A, who last saw him in treatment some nine days before the incident, and Dr. B, a court-appointed forensic psychiatrist.

A New York Child Custody Lawyer said the Dr. A testified that the defendant and his wife first visited her office on July 1983. Defendant complained of depression, withdrawal and inability to work, difficulty sleeping and nightmares. Dr. A finds defendant paranoid and persecutory. She prescribed sleep medications for both defendant and his wife. On early January 1984, Dr. A elicited from defendant that he was hyperactive and dyslexic as a child. He had a hard time keeping a job as an adult. Dr. A prescribed him anti-depressants. At the end of the same month, the defendant was observed to be all nervous and all afraid of a nervous breakdown. He picked and ate his hand. He was given Sinequan. On May of the same year, defendant claims that everyone was avoiding him and that he had nightmares at night so he was prescribed with increased dosage of sleep medication. On January 1985, Dr. A observed defendant to be acutely depressed and very anxious and panicky. Dr. A then prescribed tranquilizer, Atarax and sleep medication. On September, 1985, defendant was trembling and seemed to be deteriorating. He was very anxious and panicky and showed signs of panic paranoia and manifested his contemplations of suicide. On the 29th of September, his condition worsened and was afraid that he will kill himself. It was at this time when Dr. A learned that in his early adulthood he got hospitalized at a Psychiatric Center for one and a half years. Dr. A at this point diagnosed him with schizophrenia and prescribed Haldol, a drug for psychosis. On his October 9 visit, defendant was extremely anxious and he was “eating his hands all bloody”. Haldol medication was then increased. On their visit on October 4, he recounts a nightmare involving the Queen of Iran and her best friend where she was slicing her back all bloody. Mrs. A at this point was very worried of a breakdown so Haldol prescription was increased yet again. On October 7, days before the fateful event, defendant improved in that even if he was still biting his hand, he was no longer trembling and was more subdued.

Published on: March 19, 2014

Court Decides Case Regarding Child Endangerment Charges

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered September 29, 2009, convicting him of sexual abuse in the second degree (seven counts) and endangering the welfare of a child (two counts), after a nonjury trial, and imposing sentence. A Kings Child Custody Lawyer said that, the motion by the nonparty-appellant to stay enforcement of an order of the Family Court, Kings County, dated November 30, 2010, and to continue care and custody of the subject child with the child’s maternal grandmother, pending hearing and determination of an appeal from the order. Application by the maternal grandmother to adjourn the return date of the motion to submit papers supporting the motion.

The issue in this case is whether defendant has been deprived of his constitutional right during the proceedings.

A New York Family Lawyer said the Supreme Court did not deprive the defendant of his constitutional right of confrontation by prohibiting him from cross-examining one of the complainants or eliciting testimony about that complainant’s prior sexual conduct. Contrary to the defendant’s contention, such evidence was not relevant to support his defense that this complainant’s testimony was fabricated. The defendant was given ample opportunity to develop evidence to support his position that this complainant had a motive to fabricate his testimony. Accordingly, evidence of this complainant’s prior sexual conduct was irrelevant and properly excluded by the Supreme Court under the rape shield law.

Published on: March 18, 2014

Court Hears Case Regarding Malicious Prosecution in Family Law Case

by Stephen Bilkis

A New York Family Lawyer said that, defendant moves pursuant to CPLR § 3211 (a)(7) to dismiss plaintiff’s complaint and to sanction plaintiff pursuant to 22 NYCRR §130.1-1(a). Plaintiff opposes the motion. On November 23, 2003, plaintiff commenced an action against the defendant by filing a summons and verified complaint with the Kings County Clerk. The complaint sets forth twenty five allegations of fact in support of one cause of action for malicious prosecution based on defendant’s commencement of three Family Court proceedings and one Criminal Court complaint against the plaintiff. Defendant contends that the plaintiff’s complaint does not state a cause of action and merits sanctions as frivolous.

A New York Custody Lawyer said that, the undisputed facts establish that the parties were married on May 21, 1989 in Brooklyn, New York. They have a daughter born on October 29, 1989, and a son born on March 10, 1992. By written agreement dated April 22, 2001, the parties legally separated. On June 19, 2001, defendant’s action for divorce was resolved by a divorce judgment issued by the Kings County Supreme Court. The divorce judgment incorporated the parties’ separation agreement and granted the defendant, among other things, custody of their children, six hundred dollars of monthly child support payments, and additional child support for the children’s unreimbursed medical and school expenses. The judgment also granted the Family Court concurrent jurisdiction with the Supreme Court on issues of maintenance, support, custody and visitation.

A Westchester County Family Lawyer said that, defendant commenced three separate civil proceedings against the plaintiff in Kings County Family Court. Pursuant to Article 8 of the Family Court Act, defendant filed a petition, under docket number O-08296/02, alleging that the plaintiff committed certain family offenses. Family Court Judge found that there was good cause shown to issue the defendant a temporary order of protection restraining the plaintiff from assaulting, harassing, menacing or threatening her. The petition was eventually dismissed.

Published on: March 17, 2014

Court Hears Case Regarding Child Abuse and Neglect

by Stephen Bilkis

A New York Family Lawyer said that, New York City Children’s Services (hereinafter NYCCS) filed a petition against respondent mother alleging that her son’s physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired, as a result of her failure to exercise a minimum degree of care in supplying him with an adequate education in accordance with the provisions of part I of article 65 of the Education Law. Specifically, the petition alleges that the boy missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.

A New York Child Custody Lawyer said that, on the day the petition was filed, the boy was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. The fact-finding hearing was conducted on July 29, 2008, November 17, 2008 and January 7, 2009. NYCCS called one witness, a caseworker, on its direct case. She testified that the original oral report transmission (hereinafter ORT) was received from the Children’s Aid Society on June 14, 2007. That day, NYCCS convened a case conference.

The proof with respect to educational neglect consisted solely of the records that NYCCS introduced into evidence including the ORT, the boy’s school records from the 2006-2007 and 2007-2008 school years, the ORT dated September 18, 2008, the ORT dated November 21, 2008, and his school records from the 2007-2008 school year. His school records establish numerous unexcused absences during the period prior to the filing of the petition. For the 2006-2007 school year, he attended P.S. 582 during September 2006. An attendance sheet from P.S. 582 indicates that he was absent seven days that month and late five times. Thereafter he was suspended for fighting.2 after his suspension, he attended P.S. 252 in February 2007. An attendance sheet from P.S. 252 indicates that he was absent four days in February 2007. After that, he was transferred to a “suspension school,” P.S. 607 or the Academy, from February 2007 until January 2008.

Published on: March 16, 2014

Court Hears Case Regarding Promoting Contraband

by Stephen Bilkis

A New York Lawyer said that, the presentment agency filed a petition charging that the respondent committed an act which if committed by an adult would constitute the crime of promoting contraband in the second degree. A fact-finding hearing commenced before me on October 6, 2003 and was continued on October 8, 2003. A Community Associates and Probation Officer testified for the presentment agency.

A New York Child Custody Lawyer said that, on August 25, 2003 the respondent made his initial appearance concerning a petition filed against him in Kings County Family Court. He was released on that date with the condition that he attend Kings Alternatives to Detention. (Hereinafter ATD.)The director of Kings ATD. She testified that participants in Kings ATD are required to attend the program Monday through Friday, from 8:00 a.m. to 4:00 p.m. The program is located on the sixth floor of 345 Broadway and consists of offices for the probation staff, a cafeteria, a recreational area, and classrooms for the attendees.

She also told the court that the attendees are not locked inside the building, but that they are supposed to remain inside the facility during its hours of operation. Attendees who leave the premises during operating hours are considered absent without leave, and ATD “would request of the court their parole to ATD be terminated forthwith.” She went on to say that before entering the premises of Kings ATD, each attendee is searched. A security officer has the attendees empty their pockets and then conducts a pat down of each attendee.

Published on: March 15, 2014

Family Court Hears Case Regarding Juvenile Respondents

by Stephen Bilkis

This decision follows the release of the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c), after the court held a pre-petition hearing and determined that the court had jurisdiction to detain the respondents pending a petition being filed.

A New York Family Lawyer said that, on Sunday, August 7, 2011 at about 7 p.m. uniformed police officers took both thirteen-year-old respondents into custody in connection with an alleged robbery occurring on the same date. Apparently, respondent D was identified in a show-up and arrested by the uniformed officers before being transported to the 94th Precinct. The basis for the detention of respondent is less clear, although he also may have been under arrest. Both respondents were detained at the 94th Precinct for over twenty-four hours until the evening of August 8, when they were taken to the Horizons detention center, from which the respondents were brought to the Kings County Family Court on the morning of Tuesday, August 9, 2011. Altogether the respondents were in custody for about thirty-eight hours before being produced in court. These facts came to light in a pre-petition hearing held under Family Court Act § 307.4 on the morning of August 9.

A New York Custody Lawyer said that, while in detention at the 94th Precinct on Sunday night, the respondents were placed in lineups arranged by detectives in connection with an investigation into events occurring on Saturday August 6, unrelated to the event that lead to their detention by the uniformed officers on August 7. Specifically, the detective testified that the respondents were detained at about 7 p.m. on August 7 by the uniformed police officers in regard to an alleged robbery. The uniformed officers brought the respondents to the 94th Precinct. The detective understood that defendant was under arrest, although he was not certain about the other defendant. The uniformed officers notified the respondents’ parents, who appeared at the precinct sometime around 8 p.m. on August 7. The detective suspected that the respondents may have been involved in two additional crimes on August 6. Apparently the detective questioned both respondents in the presence of their parent in relation to the August 6 crimes, and defendant made a statement at about 8:35 p.m. on August 7. The detective arranged for both respondents to be placed in line-ups at about 12:45 a.m. on August 8 with regard to one of the August 6 crimes. The result of those line-ups is unclear. The detective decided to conduct a second line-up with regard to the second August 6 crime, later in the day on August 8.