Custody

Published on: June 25, 2013

Domestic Violence Victim Charged with Neglect

by Stephen Bilkis

In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York’s statutory scheme for child protective proceedings. The action was brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.

A New York Family Lawyer said that, respondent mother, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983, against the New York City Administration for Children’s Services (ACS). The action was later consolidated with similar complaints by the three named plaintiff mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they “engaged in domestic violence” and that defendants removed and detained children without probable cause and without due process of law. That policy and its implementation according to plaintiff mothers constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution. A New York Child Custody Lawyer said that, in August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A), and their children (Subclass B). For each plaintiff, at least one ground for removal was that the custodial mother had been assaulted by an intimate partner and failed to protect the child or children from exposure to that domestic violence. In January 2002, the District Court granted a preliminary injunction, concluding that the City may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer”.

A Bronx Family Lawyer said that, the court found that ACS unnecessarily, routinely charged mothers with neglect and removed their children where the mothers who had engaged in no violence themselves had been the victims of domestic violence; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court; that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency’s written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year.

Published on: June 23, 2013

Court Hears Petition Regarding Allegations of Mother’s Neglect

by Stephen Bilkis

The order appealed from is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to Family Court for further proceedings in accordance with the Memorandum that Family Court erred in determining that the petitioner mother failed to prove by a preponderance of the evidence that the children who are the subject of the proceeding are neglected children based upon domestic violence between the respondent father and the mother of the children and in therefore dismissing the petition. The court notes at the outset that the respective Attorneys for the Children did not take an appeal from the order, and thus to the extent that their briefs raise contentions not raised by the petitioner mother, they have not been considered.

A New York Family Lawyer said that upon review of the record, the petitioner established by a preponderance of the evidence that the children were in imminent danger of emotional impairment based upon the alleged incidents of domestic violence between the children’s mother and the respondent. In connection with her admission in the separate neglect proceeding brought against her, the mother admitted that she and the respondent had several disagreements and arguments in the presence of the children and that sometimes the children were afraid. The respondent father failed to appear at the instant fact-finding hearing, and thus the court draw the strongest inference against her that the opposing evidence permits based upon her failure to testify at the hearing.

According to the evidence presented at the fact-finding hearing, when the police responded to the residence on a specified date, both the mother and the respondent admitted that they had been engaged in a loud argument in the living room, during which they struck each other. The police officer observed a scratch on the mother’s neck, which the mother admitted she received while she and the respondent were fighting. The police officer further observed that the one-year-old child (younger child) was crying in a bedroom, and he described the child as shook up and scared. The court conclude that the younger child’s proximity to the physical and verbal fighting that occurred in the living room, together with the evidence of a pattern of ongoing domestic violence in the home, placed him in imminent risk of emotional harm.

Published on: June 23, 2013

Husband is Charged with Harrassment

by Stephen Bilkis

The Defendant is charged by Prosecutor’s Information with violating Penal Law §240.25, Harassment in the first degree as a Class B Misdemeanor. The allegations involve the Defendant allegedly threatening his wife, by saying, in different occasions, the phrases “I’m going to slit your fucking throat,” and “You ever talk about my mother, I’ll put a bullet in your fuckin head.” A New York Family Lawyer said that, in her Supporting Deposition the Complainant also alleges that the Defendant threatened her by stating “I’m going to chop you up and spread you on the highway.” The Complainant alleges four other instances of threats of physical domestic violence including allegations that the Defendant has thrown chairs at her. In the domestic Incident report the Complainant alleges being in fear of physical injury from her husband.

A Nassau County Criminal Attorney said that, defendant moves for various discovery relief and moves that the Court to inspect the Grand Jury minutes regarding this matter and to dismiss the Prosecutor’s Information after said review. Finally, Defendant moves the Court to dismiss the information against him pursuant to C.P.L.§100.15 and 100.40 based on the assertion that the information is facially insufficient. The People join in the Defendant’s motion to dismiss the complaint.

The issue to be resolved in this case is whether or not the information filed is sufficient.

Published on: June 22, 2013

Administration for Child Service Files Petition for Neglect of Six Children

by Stephen Bilkis

On November 8, 2010, ACS (Administration for Children’s Services) filed petitions against a mother alleging that her six children were neglected children pursuant to Family Court Act. At that time, the youngest child was a new-born and the oldest child, was 16 years old. A New York Family Lawyer said five of the children were living with their mother in New York City having recently relocated from Washington, D.C. A 14 year old daughter had returned to Washington D.C., after coming to New York City briefly with her siblings when they relocated.

The petitions alleged that the respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the school-age children were not enrolled in school in New York City during the 2010 2011 academic year until October 14, 2010. Additionally, the petitions alleged that the respondent misused marijuana; that she gave birth with a positive toxicology for marijuana and that she was not participating in a drug treatment program. A fact-finding hearing was conducted before the Court.

A New York Custody Lawyer called ACS called two witnesses on their direct case, the caseworker and the respondent mother. In addition ACS introduced a number of documents into evidence. These included oral report transmissions dated November 3, 2010 and November 4, 2010 as well as the hospital records for the mother and the baby.

Published on: June 21, 2013

Petitioner Claims Respondent Violated Order for Protection

by Stephen Bilkis

The petitioner spouse filed a supplemental petition alleging that the respondent failed to obey the modified order of protection issued by the court. A New York Family Lawyer said the supplemental petition alleged that the respondent, upon release from incarceration for prior violation of the order of protection, arrived at the petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to the petitioner’s residence and subsequently on March 11, 1994, that a car belonging to a friend was towed from the petitioner’s driveway, and the petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found the respondent had filed a complaint and stated to be the owner of the property and claimed that the car was illegally parked and have the car towed.

A warrant was issued for the respondent’s arrest. The respondent was returned on the warrant on March 21, 1994, and issue joined. A New York Custody Lawyer said the hearing was held and at the conclusion of the hearing the court made two findings beyond a reasonable doubt to wit that the respondent willfully violated the final order of protection by attempting to gain entry to the petitioner’s residence and that the respondent willfully violated the final order of protection by having a vehicle lawfully parked on the petitioner’s property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner.

At the dispositional phase of the supplemental proceeding brought pursuant to Family Court Act 846, the court based on the prior history of family offense activity perpetrated upon the petitioner by the respondent; the fact that the respondent had been committed previously by a County court to incarceration for one hundred and eighty days; that the respondent apart from that commitment, had been civilly committed by the court for willful violation of the order of protection to incarceration for six months; that the respondent upon release from his most recent commitment had almost simultaneously violated the order of protection again; that the respondent’s behavior indicated an intractable design to continue to annoy and harass the petitioner; and considering the welfare not only of the petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation and of four months for the finding of violation occurring on March 11, 1994, to run consecutively.

Published on: June 20, 2013

Court Hears Case Regarding Termination of Parental Rights

by Stephen Bilkis

This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law against respondent mother (RM) in connection to her child, FA, four years old. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness. A New York Family Lawyer said the Court held a fact finding hearings and on June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

Petitioner presented the testimony of doctor, qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a doctor, a qualified expert in the field of forensic psychology, and RM who testified on her own behalf.

A New York Custody Lawyer said the underlying child protective proceeding in this case involves the brutal murder of the child, AB, by RM’s ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child’s surviving half-sibling, JB, was filed against RM and her ex-paramour, JL, pursuant to the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.

Published on: June 19, 2013

Petitioner Seeks to Remove Order of Protection Against Him

by Stephen Bilkis

Petitioner is charged with a family offense involving his two preteen sons. At the arraignment, held at the First District Court on April 3, 2009, a temporary stay away order of protection (TOP) was issued against him, pursuant to Criminal Procedure Law. The TOP had an expiration date of April 8, 2009. A New York Family Lawyer said there is no indication in the record that whether the judge directed a TOP hearing or that one was requested by petitioner or his counsel at that time.

On that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney the record is devoid of any request by petitioner’s counsel for a TOP hearing before the assigned judge. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner’s counsel for 2:30 p.m. but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.

Thereafter, as set forth in the civil minutes of the Count)’ Clerk, a notice of petition and petition of an Article 78 proceeding was filed therewith on August 24, 2009. No Request For Judicial Intervention (RJI) was filed for that special proceeding. Subsequently, on August 27,2009, an application for the instant Order to Show Cause was argued before the court. A New York Custody Lawyer said the transcript of that argument showed that the court declined to stay the temporary order of protection and struck that provision from the Order to Show Cause. That order was accompanied by an RJI that was specific to the Order to Show Cause. It appears from the record, that the Article 78 petition, with the separate notice of petition, was never initialized for submission to the Supreme Court. What is before the Court is just the undated Order to Show Cause and various motion papers in opposition to that request and in reply thereto.

Published on: June 18, 2013

Petitioner Seeks Sole Custody in Light of Abuse Allegations

by Stephen Bilkis

Before the Court are cross petitions filed by the father and the mother seeking custody of the child LJ born June 1, 1998. The father, LR, filed his petition on December 27, 2007. The mother, KR, filed her petition on December 31, 2007.

A New York Family Lawyer said the child is currently in the temporary custody of the Department of Social Services (hereinafter referred to as “DSS”) as the result of a removal pursuant to a neglect proceeding. He was placed by DSS with the paternal grandmother, EA, in January, 2006 pursuant to the Family Court Act.

Currently, the DSS is ready to return the child to a parent but has no position as to which parent. As each parent has filed for custody of the child, a hearing was held leaving that determination to be made by this Court.

Published on: June 17, 2013

Petitioner Sues Police in Domestic Violence Incident

by Stephen Bilkis

On the evening of February 13, 1992, plaintiff pulled her car alongside an area where Nassau County police officers were investigating an auto accident and jumped out, screaming for help. Plaintiff mother (PM) informed the officers that her husband, TM, against whom she had obtained an order of protection, was in her car threatening her with a knife. A New York Family Lawyer said the plaintiff showed the officers the order of protection and told them that there was a warrant for her husband’s arrest based on a previous violation of the order. The officers removed plaintiff’s husband from the car and one of them assured her that they would take care of him. After plaintiff left, however, the officers did not arrest her husband. The next morning, as plaintiff left home for work, her husband, who had been hiding outside, attacked her with a machete, inflicting serious injuries.

A New York Family Lawyer said the plaintiff sued Nassau County for the negligence of its police officers in failing to take her husband into custody. Plaintiff did not join her husband as a defendant, nor was he impleaded by the County as a party. At the pre-charge conference, defendant County requested that Supreme Court charge the jury that liability for plaintiff’s injuries could be apportioned between itself and the husband. Defendant argued that CPLR article 16, which limits a tortfeasor’s joint liability for non-economic losses to its proportional share if its culpability is 50% or less, applied to this case. The Trial Judge declined to instruct the jury that they may apportion culpability between the County and the intentional tortfeasor, plaintiff’s husband, because of a “very strong issue of a public policy as established in the Family Court Act with respect to orders of protection.” The jury returned a $1.5 million verdict for non-economic losses against defendant.

On appeal to the Appellate Division, the County challenged the trial court’s ruling. In addition to defending the trial court ruling, plaintiff argued that apportionment did not apply both because the case involved an intentional tort and because the County had violated a non-delegable duty. The Appellate Division reversed, holding that none of the proffered exemptions applied. The

Published on: June 15, 2013

Couple Seeks Dissolution After Arranged Marriage

by Stephen Bilkis

The parties are Sunni Muslim and the marriage was arranged between the families. On 18 June 1998, the parties got married at a civil ceremony in New York, and on 10 July 1998, the religious ceremony was performed. Thereafter, within 48 hours after the religious ceremony, defendant-wife left the marital residence and never returned. A New York Family Lawyer said that consequently, on 29 July 1998, plaintiff-husband filed a summons with notice in the Supreme Court to annul the marriage based upon fraud. On 6 November 1998, defendant-wife filed a verified answer and counterclaim seeking a divorce upon the grounds of cruel and inhuman treatment. The defendant-wife’s counterclaim contains allegations which, if true, may rise to the level of spousal abuse. In addition, the wife counterclaims for money damages in the sum of $21,000 for plaintiff’s failure to abide by a religious wedding contract, referred to as a “Mehr agreement”, defendant’s share of the wedding gifts, monies expended by defendant’s family for a lavish wedding, return of defendant’s jewelry, and the award of counsel fees. In regard to defendant-wife’s allegations of suffering, abuse, and violence by her husband on their wedding night, on 20 August 1998, defendant-wife filed a petition for an order of protection in the Court of Common Pleas in Delaware County, Pennsylvania. However, on 17 September 1998, the petition was withdrawn by defendant-wife, and the Court issued an order stating that the withdrawal was with prejudice to the petitioner. Defendant-wife also filed a criminal complaint against plaintiff-husband for the crime of Harassment in the Court of Common Pleas of Delaware County, Pennsylvania. On 7 December 1998, a preliminary hearing was held.

A New York Custody Lawyer said the defendant-wife appeared pro se, while plaintiff-husband was represented by counsel. The court dismissed the criminal complaint since defendant-wife failed to prove a prima facie case that a crime was committed and that the husband had committed the crime charged.

On 21 September 1998, defendant-wife obtained an order of protection in a Family Court in Queens County, New York, which was subsequently dismissed by that Court on 10 December 1998 since a matrimonial proceeding was pending in the Supreme Court, Nassau County. On 11 December 1998, defendant-wife submitted an order to show cause ex parte to the Supreme Court, Nassau County, requesting a temporary order of protection against plaintiff-husband, which was assigned to another Justice of the court due to the unavailability of the Justice assigned to the case. The affidavit by the wife in support of the order to show cause contained substantially, in sum and substance, the same allegations of abuse and domestic violence averred in the counterclaims. In addition, defendant-wife claimed that plaintiff-husband had violated a previous temporary order of protection without making reference to the date issued and the name of the court and judge who issued the order. Subsequently, the defendant’s application was granted, and the temporary order of protection was issued by the Supreme Court Justice. The order was to expire on 16 December 1998, the date the case was scheduled to appear before the Court. On that date, counsel for the defendant-wife submitted an application to be relieved, pursuant to CPLR § 321, which was granted by the order of the Court on 23 December 1998. The action was stayed until 15 January 1999 in order to allow defendant-wife to obtain an attorney. The temporary order of protection issued on 11 December 1998 was extended by the Court until 15 January 1999 over the objections of plaintiff’s counsel. Plaintiff’s counsel then requested a hearing on the record and sought to vacate the temporary order of protection issued upon the ground that the allegations by the wife were contrived and fabricated in order to have his client repeatedly arrested on false allegation of violation of the temporary order of protection. According to plaintiff-husband’s counsel, plaintiff-husband is a neurologist, and his ability to care for his patients has been severely impaired by the wife’s conduct. The Court has extended the temporary order of protection several times until a hearing could be held on plaintiff’s application to vacate the temporary order of protection. The temporary order of protection has been extended to 17 May 1999 by order of the Court dated 23 February 1999.