Custody

Published on: December 18, 2013

Petitioner Claims Invalid Service of Summons

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding for support pursuant to Article 4 of the Family Court Act. The clerk of the court mailed a summons to the respondent, directing him to appear for a hearing. No attempt at personal or substituted service was made prior to the mailing of the summons.

A New York Custody Lawyer said that the respondent has appeared specially and moved, pursuant to Section 3211(a) (8) of the Civil Practice Law and Rules, to dismiss the petition on the ground that service by mail in the first instance does not comply with the requirements of Section 427 of the Family Court

A Queens Child Custody Lawyer said Section 427 provides as follows: ‘(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service.

Published on: December 17, 2013

Mother Petitioner Child’s Petit Larceny Charge

by Stephen Bilkis

In April 1979, the Grand Jury of Kings County found reasonable cause to believe that respondents herein had committed acts which, if done by a person over the age of sixteen (16), would constitute the crimes of petit larceny, criminal possession of stolen property in the third degree, assault in the third degree and harassment.

A New York Family lawyer said that, petitions were filed in the above-captioned matters in the Intake a Part of Kings County Family Court. The office of Corporation Counsel of the City of New York appeared in support of the petitions and the Legal Aid Society was appointed to represent both respondents for the purpose of arraignment only. Stayed warrants were then issued for respondents and their parents, since they had failed to appear at the arraignment in this Court, per the Supreme Court order.

A New York Custody Lawyer said in the adjourned date, the two respondents and their mothers made timely appearances in this Court as did the Assistant Corporation Counsel and the Law Guardian (Legal Aid Society).On that date, with both respondents and their mothers present, the Assistant Corporation Counsel informed the Court that he was not ready to proceed to trial, since the complaining witness had failed to appear. Motions were therefore made on behalf of both respondents to dismiss the instant petitions. These motions are now before the Court and are the subject of this decision.

Published on: December 17, 2013

Court Discusses Juvenile Deliquency Proceeding Moved to Family Court

by Stephen Bilkis

A New York Family Lawyer said the respondent in a juvenile delinquency proceeding originated by removal to Family Court is not automatically entitled to inspect or to receive a copy of the minutes of any Grand Jury proceeding which must be transferred to Family Court when the case is removed.

In the first case, a presentation was made to the Grand Jury concerning the alleged participation of respondent and an adult, in robbery in December 1979. Pursuant to CPL 190.71 the Grand Jury requested that the matter pending against respondent be removed to Family Court and accused respondent of committing acts which, if committed by an adult, would constitute the crime of robbery in the second degree. A New York Custody Lawyer said the Supreme Court made and filed an implementing order of removal, and the matter was transferred to Family Court, Kings County.

Following arraignment, respondent by his Law Guardian moved orally to dismiss the petition for lack of jurisdiction on the ground that the forwarding court in making the transfer to Family Court had failed to forward a copy of the Grand Jury minutes, and further to inspect the Grand Jury minutes, a copy of which was then in the possession of the Corporation Counsel. Family Court denied both motions, and on application by respondent the Appellate Division granted permission to appeal, limited to so much of the Family Court order as denied the motion to inspect or obtain a copy of the minutes of the Grand Jury.

Published on: December 16, 2013

Social Services Seeks Guardianship and Custody of Children

by Stephen Bilkis

A New York Family Lawyer said this is a petition brought by an authorized agency under Social Services Law § 384-b[7] seeking to commit the guardianship and custody of the children, A (d.o.b. 1/14/91), B (d.o.b. 3/6/94), and C (d.o.b. 6/14/01) to the agency for the purpose of consenting to the adoption by their foster mother, who is their mother’s sister.

The respondent M is the children’s mother. The respondent F is the children’s father. The children came into foster care in July 2001, following C’s birth with positive toxicology for heroin. The children were then placed following the mother’s admission to neglect based upon heroin addiction.

The court at the time of placement in November 2001, directed that the mother enter an inpatient drug program and complete a parenting skills class.

Published on: December 15, 2013

Court Reverses Order Regarding Jurisdiction Issue

by Stephen Bilkis

Two cases of similar nature have come before the court for resolution.

A New York Family Lawyer said the first case is a child custody and visitation proceeding where the mother appeals from an order of the Family Court, Kings County, dated 20 May 2003 which granted those branches of the father’s motion which were to dismiss the petitions for modification of an order of visitation dated 2 December 2002 on the ground of forum non conveniens and an order of the same court dated 3 June 2003 which granted that branch of the father’s motion which was to dismiss a family offense petition for an order of protection against the father on the ground of forum non conveniens pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8.

The court orders the reversal of said orders, on the law, with costs. Also, those branches of the motion which were to dismiss the petitions are denied, and the proceedings are transferred from the Family Court, Kings County to the Family Court, Richmond County.

Published on: December 13, 2013

Father Seeks Full Custody

by Stephen Bilkis

On 22 September 2004, by order to show cause, plaintiff father moves for an order to modify the provisions of the parties’ judgment of divorce, dated 24 April 2002, so as to grant him full legal and residential custody of the child of the marriage, born January 1, 1997; appoint a law guardian to represent the interests of said child; and, directing that the residence of said child remain within the State of New York pending the hearing of this application.

A New York Family Lawyer said the order to show cause granted a temporary restraining order providing that the child shall remain in New York and shall not be removed from the jurisdiction pending hearing of the application. By order to show cause dated 20 October 2004, defendant mother moved for an order directing plaintiff to immediately return the child to her, as his custodial parent.

This case sprung from the marriage of the parties in Brooklyn on 31 October 1996. Defendant gave birth to the child on 1 January 1997 in Norway; defendant had returned to Norway to avail herself of health insurance coverage and to be near her family. A New York Custody Lawyer said the child and defendant mother returned to Brooklyn soon after the child’s birth and the family resided in Kings County, New York, throughout their marriage.

Published on: November 19, 2013

Family Court Discusses Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said the complainant husband seeks to modify a separation agreement entered into with his former wife. The defendant wife was granted child custody of their three minor children.

The issue before the court is whether it has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to entertain the husband’s application.

The parties were married in Rochester, New York and subsequently resided in this state as husband and wife. A New York Child Custody Lawyer said the three children were born in New York State during the course of the marriage. The parties entered into a separation agreement in same state. The separation agreement was incorporated into, but survived, a New York State decree of divorce.

Published on: November 18, 2013

Court Discusses Scope of the Child Support Standards Act

by Stephen Bilkis

A New York Family Lawyer said that this is an appeal from a judgment of the Supreme Court, entered January 8, 2003 in Tompkins County, which, inter alia, modified plaintiff’s child support obligations. The parties were married in December 1988 and are the parents of a son born in 1991. They separated in January 2001, agreeing to a shared custodial arrangement whereby the child alternates between his parents’ homes on a weekly basis, which has apparently been successful. A New York Divorce Lawyer said that, in March 2001, defendant, the mother, commenced a proceeding in Family Court seeking child support and maintenance. It is undisputed that, during the marriage, the parties’ primary source of income was a trust fund created solely from plaintiff’s proceeds from a medical malpractice action arising from surgery in 1978 in which his spinal cord was negligently severed causing quadriplegia.

A New York Visitation Lawyer said that, although the parties’ income tax return reflects that their combined income in 2000 was $55,493, a Support Magistrate, in an October 2001 decision and order, calculated defendant’s 2000 income as $15,600, plaintiff’s 2000 income as $127,172.48, i.e., 100% of the principal and interest which plaintiff drew from the trust in 2000, and found a total combined parental income of $142,772, with 89% attributable to plaintiff. After considering the statutory factors contained in Family Ct Act § 413 (1) (f) (see Domestic Relations Law § 240 [1-b] [f]) and articulating justification for a lower child support obligation, the Support Magistrate capped plaintiff’s income at $80,000 and ordered him to pay $1,133.33 in monthly child support and $2,000 in monthly non-durational maintenance, provide the child with medical insurance and pay 89% of the child’s uninsured medical and day care expenses.

A New York Custody Lawyer said that, plaintiff filed written objections to that determination and Family Court, by order dated November 20, 2001, modified the Support Magistrate’s order only to the extent of limiting maintenance to five years. The Family Court order was not appealed by either party. In September 2001, before the completion of the foregoing Family Court proceedings, plaintiff commenced this action for divorce in Supreme Court. In lieu of a trial in Supreme Court, the parties apparently agreed to permit the court to determine all disputed issues in the matrimonial action, including modification of child support and maintenance, based on a document dated October 4, 2002 entitled “Joint Proposed Findings of Fact” (hereinafter the stipulation), which included facts upon which the parties agreed and disagreed. Appended to the stipulation were, among other things, Family Court’s decision and order, the Support Magistrate’s findings of fact, decision and order, a transcript of the hearing before the Support Magistrate, updated statements of net worth and a number of other documents related to the parties’ finances, including information regarding plaintiff’s diminishing trust.

Published on: November 17, 2013

Court Discusses Arbitration Award

by Stephen Bilkis

Plaintiff having failed to demonstrate that she attempted to exhaust other, less drastic, remedies to enforce the pendente lite support order, she is not entitled to an order holding defendant in contempt. Defendant’s net worth statement indicates that he has assets within the jurisdiction available to satisfy his current obligations

A New York Family Lawyer said that defendant, in his net worth statement, alleges that he has “no regular salary–Past 3 months’ averaged $1,666.00.” Defendant is 45 years old, in good health, has a Master’s Degree in Music, and is self-employed by a corporation in which he holds 95% of the stock. The court finds defendant’s claimed income incredible, since he lists expenses of $2,992 a month, but income of only $1,666. Furthermore, it would appear the rabbinical court also found that defendant’s ability to pay child support exceeded his claimed income, since it found him to be liable for child support of $250 a week and school tuition of $1,666 a month. Defendant has a 35% interest in a $1.3 million shopping center, and paid his attorneys a retainer of $3,500. Defendant fails to submit tax returns or any other documents which would support his claimed income, and it is apparent that defendant is able to determine the amount of salary he will receive from his corporation. Nevertheless, there is simply no evidence that defendant earns the $100,000 p.a. claimed by plaintiff, and in view of the defendant’s now having submitted a net worth statement, his child support obligation will be reduced to basic child support of $2,500 per month, a sum very close to that determined to be appropriate, as well as payment of unreimbursed medical costs. In the event it is determined at trial that defendant’s income is higher than alleged in the Net Worth Statement, the amount of child support will be adjusted retroactively to comply with Domestic Relations Law § 240(1-b).

Defendant now seeks to confirm the arbitration award of the religious tribunal, which is opposed by plaintiff on public policy grounds.

Published on: November 16, 2013

Court Redetermines Child Support Order

by Stephen Bilkis

The parties, married in 1978 and subsequently divorced, have been before in Court on three prior occasions stemming from petitioner’s January 1995 application for an upward modification of respondent’s weekly child support obligation for the parties’ two children, born in 1980 and 1983. A New York Family Lawyer said the decision rendered, the Court reversed Family Court’s order which set respondent’s weekly child support obligation and remitted the matter for further record articulation of the factors supporting Family Court’s determination to deviate from the application of the statutory percentage to the parties’ combined income. Upon remittal, the Hearing Examiner made some additional findings but adhered to the weekly child support order. Family Court, by order, denied petitioner’s objections and confirmed the Hearing Examiner’s order.

A Delaware County Family attorney said that petitioner commenced an action seeking an upward modification of the order based upon respondent’s increased earnings and a decrease in her household income. A New York Custody Lawyer said the petitioner also sought a nunc pro tunc modification of the order, pursuant to Family Court Act § 451, claiming that respondent had concealed earned overtime income at the time of the original support hearing. She also sought a direction that respondent pay his future child support through the Child support Collection Unit and an award of counsel fees. Family Court modified its order in an order entered. The court increased respondent’s weekly child support obligation retroactive to April 7, 1997, granted petitioner’s request for the payment of future child support through the Child support Collection Unit and denied her applications for a nunc pro tunc order and for counsel fees.

Petitioner appeals.