Custody

Published on: July 24, 2013

Court Discusses Domestic Relations Law

by Stephen Bilkis

On 2 August 1999, this proceeding was commenced by the filing of an order to show cause. The petitioner is seeking a modification of a custodial visitation schedule established as a result of a stipulation of settlement subsequently incorporated but not merged into a judgment of divorce dated 13 September 1995 in the Rockland County Supreme Court. A New York Family Lawyer said the respondent has filed an affirmation in opposition and an attorney’s affirmation in which the issue of this court’s jurisdiction to hear the matter is raised. The respondent claims that the home State for the child is New Jersey and, therefore, this court is without jurisdiction to proceed.

The Law Guardian for the child has submitted a reply affirmation in which she takes the position that this court does have jurisdiction. On 23 August 1999, the petitioner submitted an affidavit in response to the respondent’s answer together with a memorandum of law. On 26 August 1999, the respondent filed a reply affirmation.

A New York Custody Lawyer said the facts in this proceeding are not in significant dispute. The parties have joint custody of A who is now almost 10 years of age. A resides with B in Lincoln Park, New Jersey, during the week, as well as the first weekend of every month during the school year. She splits summer vacation and alternates other vacations and holidays with her parents. In addition, the child has a Wednesday visitation with her mother from 6:00 P.M. to 8:00 P.M. The parties have joint legal custody.

Published on: July 7, 2013

Court Rules on Tragic Death of Infant

by Stephen Bilkis

At shortly after 1:00 a.m., an officer and his partner went to an apartment in response to a radio report of a person in distress. A New York Family Lawyer said outside the building, they were joined by two other police officers. In front of the building, the officers met a woman, who stated that her cousin, had a baby and the baby, who was up in the apartment, had died

A New York Custody Lawyer said the woman led them up to the apartment, where they met the offender’s grandaunt. One of the officers directly moved into a bedroom where he saw the offender resting on one bed and the baby, wrapped in a towel, on the other bed. A garbage bag containing what appeared to be the afterbirth was near the baby’s body. The officer assesses the baby’s pulse and felt nothing. The emergency medical services arrived shortly afterward. Since there was a dead infant, the officer was obliged to contact a detective supervisor, the crime scene unit and the district attorney’s office.

The officer did not ask the offender further questions aside from asking her how she felt. In the investigation, the officer testified that the offender remained in the bedroom from the time of his arrival until she was later taken to the hospital. The officer also asserted that the offender was not restrained in the apartment, was not under arrest and she was not even arrested the following day.

Published on: July 6, 2013

Court Rules on Neglect Petition

by Stephen Bilkis

A mother of a boy, now age seven, has been the subject of child protective proceedings since he was ten- weeks-old. The boy is currently placed in foster care as a result of the most recent order of disposition issued by the Court against his mother, the Respondent.

A New York Family Lawyer said the mother has volunteered to participate in an instructional film being produced by her attorneys and has consented to the filming and participation of the boy as well. The Legal Aid Society, representing the boy and the Administration for Children’s Services (ACS) oppose such filming and have asked the Court to find that the use and dissemination of the boy’s image and identity is against his best interests and should be prohibited. For the reasons that follow, the Court conducted a hearing to determine whether the mother’s consent to the filming of her son should stand or whether her consent must be overridden.

The Respondent-mother was first brought before Bronx County Family Court after ACS filed a child neglect petition in October 2004, naming the boy as the subject child. The boy was a ten-week-old infant at the time of the filing. In June 2005, the then-presiding judge awarded the mother an Adjournment in Contemplation of Dismissal (ACD), pursuant to Family Court Act. The mother successfully completed the requirements of the ACD and the case was dismissed by operation of law in May 2006.

Published on: July 5, 2013

Court Determines if Mother is Unfit Parent

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. 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.

A New York Family Lawyer said 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 said the 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: July 3, 2013

Court Decides Custody Battle

by Stephen Bilkis

In this visitation/child custody proceeding, the parties resided together as a couple at the time of their daughter’s birth. A New York Family Lawyer said within several weeks, respondent and daughter vacated the home and moved to New Jersey, where respondent filed and obtained the equivalent of a temporary order of protection from a Camden, New Jersey court based upon alleged physical and verbal abuse by plaintiff. The parties have been engaged in nearly continuous litigation since the daughter was approximately eight weeks old, with the exception of the five year hiatus.

A New York Custody Lawyer said that after a hearing in which the New Jersey court did not completely hear his side of the events, the New Jersey court issued a restraining order and directed that Petitioner pay compensation to the mother. Petitioner was also ordered to pay child support, an order with which the father admittedly did not comply. According to the father’s testimony, the mother did sue him successfully to enforce the child support order. What ultimately happened to the New Jersey order is not completely clear. The father averred that this order was reversed on appeal and that the parties were “bound over to Manhattan Family Court” because of “jurisdictional issues”.

A Bronx Family Lawyer said in January 1997, Respondent moved to the Bronx with the daughter. After the New Jersey court adjudicated that proceeding without issuing a final order of custody, petitioner visited with daughter sporadically for the next few years. The father’s testimony concerning his contact with the subject child during the very early years of the daughter’s life appears inconsistent and somewhat puzzling. At one point, the father testified that from 1996 to 1998, he knew that the daughter resided with the mother in New Jersey. He stated that he did not file any court papers seeking visitation because he wanted visitation in New York City, but knew that he could not compel visitation in that location. In fact, the mother moved to The Bronx several months after temporarily residing in New Jersey in 1996.

Published on: July 2, 2013

Court Decides Equitable Distribution, Maintenance and Support

by Stephen Bilkis

Defendant wife is now 52 years of age while plaintiff-husband is 56 years of age. A New York Family Lawyer sometime in August 1973, the parties got married. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was 18 years of age and a high school graduate. During the course of their marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation, the youngest son resided in Israel or was a resident student at a certain university, fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Custody Lawyer said that sometime in November 2004, the wife commenced a divorce action against her husband which she later withdrew. Thus, sometime in December 2004, the husband commenced a divorce action against his wife. The parties litigated in Family Court from 10 November 2004, through 31 January 2005. The husband also brought a writ of habeas corpus against his wife and her mother which was dismissed. The Family Court action was then consolidated into the Supreme Court action, on consent. On 10 June 2005, the husband was granted a divorce, on consent and after proof, on the grounds of constructive abandonment. Shortly thereafter, the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

A Nassau County Family Lawyer said that on 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The parties agreed, inter alia, of a shared joint decision making concerning their youngest daughter, age 13; that the wife would have physical custody; that there would be a parent coordinator; that the husband, the wife and child would separately enroll in therapy; and of a supervised visitation and a mechanism for the child and father to re-establish their relationship. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and the same was vacated, on consent.

Published on: July 1, 2013

Court Discusses Domestic Violence Case

by Stephen Bilkis

This criminal case involved the violent assault of the plaintiff by an intruder into her apartment, the intruder having made a duplicate key to the apartment after being furnished the original key by the landlord for the purpose of repairs being made in the apartment. A New York Family Lawyer said that, having been found negligent by the jury for its conduct and ineffective security, the landlord sought to apportion the total fault between itself and the non-defendant intentional tortfeasor, the man who committed the violent assault. In the case before this court, suit was brought against the County of Nassau alleging negligence on the part of its Police Department arising from the following facts.

Plaintiff and her husband had an ongoing marital dispute. He had in the recent past thrown a substance in plaintiff’s eyes, temporarily blinding her, stolen her car and threatened to kill her. A New York Custody Lawyer said that, plaintiff obtained a Temporary Order of Protection against her husband from the Family Court Queens County. The order was renewed by that court and was in effect on the night of the incident which gave rise to the suit against the County. The Family Court had also issued a warrant for the husband’s arrest.

A Queens Family Lawyer said that, on that night plaintiff had attended night classes at LaGuardia Community College in Long Island City. At about 10:00 P.M., she entered her car and shortly after she started to move, her husband, who had hidden himself in the car, (apparently having a set of keys to gain entrance) jumped into the front passenger seat, showed his wife a knife and told her to drive home in Far Rockaway.

Published on: June 30, 2013

Court Discusses Family Court Act

by Stephen Bilkis

On March 4, 2009, the respondents (mother and her sons) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against appellant, respondent’s mother, and her sons’ grandmother. A New York Family Lawyer said that, the alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed the respondent mother to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at the respondent mother during the assault. In addition, the appellant allegedly used a glass bowl to strike one of his grandsons on the head, causing injuries.

Further, the appellant allegedly chased the other grandson with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, a New York Custody Lawyer said that, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree.

Published on: June 29, 2013

Court Decides Constitutionality of Family Law Statute

by Stephen Bilkis

A New York Family Lawyer said when defendant was arraigned in this court on August 25, 1998, on a single count of aggravated harassment in the second degree, two separate non-family offense orders of protection were issued pursuant to CPL 530.13. Both were full stay-away orders protecting four named individuals. The matter was marked for conference and adjourned for two days, at which time the defendant requested a hearing to test the legality of the orders. A New York Custody Lawyer said that, when the matter was adjourned to this court, the People withdrew their prior consent and objected to holding the hearing, arguing that defendant did not have a right to an evidentiary hearing solely at his request. The matter was thereupon adjourned for submission of memoranda of law.

A Queens Family Lawyer said that, defendant’s motion challenges the constitutionality of CPL 530.12 and 530.13, arguing that the failure of these statutes to provide for an adversarial evidentiary hearing at defendant’s request before a temporary order of protection is issued or continued deprives defendant and others similarly situated of due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and article I, Â§ 6 of the New York Constitution.

The issue in this case is whether CPL 530.12 and 530.13 is constitutional.

Published on: June 28, 2013

Court Decides of Release of Firearms Appropriate

by Stephen Bilkis

This matter has had a convoluted history and presents a legislative “glitch.” A New York Family Lawyer said that during a contested divorce proceeding, the Family Court issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before the Judge. A New York Custody Lawyer said that, pursuant to the temporary order of protection, the Sheriff’s Department seized 26 guns belonging to the petitioner. Thereafter, on May 2, 2001, the Judge issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, the Judge withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.

Subsequently, Nassau County Family Lawyer said that, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by the Judge.

A Nassau Family Lawyer said that, on December 2, 2002, in compliance with this court’s order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection that the Judge had issued. Although the petition was unopposed, it was dismissed by the said Judge due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed. As a result, the matter was brought before this court by notice of motion for renewal of this court’s previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before the Judge, it was necessary for the court to conduct a hearing. A Nassau County Custody Lawyer said for the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.