Custody

Published on: June 14, 2013

Plaintiff Seeks Divorce on Grounds of Cruel and Inhumane Treatment

by Stephen Bilkis

On or about 10 June 2003, an action was filed seeking divorce on the ground of cruel and inhuman treatment, and ancillary relief. On 23 December 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. A New York Family Lawyer said the plaintiff was granted omnibus pendente lite financial relief pursuant to an order dated 24 February 2004. On 8 February 2005, the parties entered into a written parenting-time stipulation. On 1 February 2005, the trial of the action commenced. On that date, an inquest was conducted and plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues. The trial continued on 2 February 2005; days thereafter; and concluded on 4 March 2005. At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian. The parties stipulated that the issue of counsel fees would be determined upon the submission of affirmations which were thereafter served and filed and marked. The plaintiff testified on her own behalf and called seven witnesses. The defendant, on the other hand, testified on his own behalf, and called his mother and a private investigator, as witnesses. The expert appointed by the Court to conduct a custody forensic evaluation also testified.

On Custody:

A New York Custody Lawyer said each party sought sole legal and physical custody of the children.

Published on: June 13, 2013

Court Decides if Natural Parents Should be Divested of Custody

by Stephen Bilkis

This consolidated-proceeding before the court is somewhat complex procedural posture. A New York Family Lawyer said there are three separate matters: a petition filed by New York Foundling Hospital (hereafter “the agency”) pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of child custody and guardianship to NYFH; a petition filed by the Commissioner of Social Services (“CSS”) pursuant to Family Court Act (“FCA”) Section 1055 seeking an extension of this court’s original placement order entered in the course of a prior Article Ten neglect proceeding; and a petition in the form of a writ of habeas corpus filed by the natural father seeking return of the children to his custody. All three petitions were consolidated, and a hearing was held on October 19 and 20 and concluded on October 25, 1978. Counsel was requested to submit post-trial memoranda in lieu of oral summations; the last was received on December 22, 1978.

A Bronx Family Lawyer said that, the natural parents, never married but lived together from 1967 to 1974, during which time three children were born: Yvonne, on October 23, 1968; Gladys, on June 9, 1970, and William, on April 20, 1973. In August 1974, after many earlier criminal convictions, the natural father was convicted on drug charges and sentenced to prison for a two-year-to life sentence. He was imprisoned until September 1977. In 1975 the natural mother voluntarily placed the subject child, who suffers from severe physical and mental handicaps, in temporary foster care. In 1976 the mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the CSS’s custody for 18 months.

A Bronx Custody Lawyer said that, during his entire imprisonment the father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the mother. Only after the agency, through its own diligent efforts, located him in the Correctional Facility in August 1977, did he learn of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek child custody or visitation. The three children, meanwhile, had lived in separate foster homes and facilities until summer 1977. The foster parents, had asked the agency for a handicapped child to adopt in 1976. After the subject child had been placed in their home for some two months, the foster parents requested that the natural parents join her; the children were reunited in September 1977 for the first time since 1975. In October 1977 the agency denied the father’s requests for child custody or visitation, and he began legal proceedings to protect his rights. On December 1, 1977 he was adjudicated the legal father, and, by agreement among counsel he had two visits with the children, the first in December 1977 and the second in February 1978. Only the oldest child, had any recollection of her father, the child having been only one year old when his father was imprisoned, and the other child being mentally incapacitated. Visits were discontinued when the natural parents became upset by them.

Published on: June 12, 2013

Petitioners Request for Modification of Child Support Denied

by Stephen Bilkis

A New York Family Lawyer said that, in proceedings for an upward modification of child support, the petitioner mother appeals from an order of the Family Court, Putnam County, entered August 18, 1992, which denied her objections to an order of the same court, entered July 6, 1992, which dismissed the petitions without prejudice, “as defective”.

The petitioner appellant mother, a resident of Putnam County, and the respondent father, a resident of the Bronx, were divorced in 1973. They have two children, the younger of whom is the subject of the instant petitions. A Bronx Child Support Lawyer said that, the mother filed the instant petitions in the Family Court, Putnam County, to enforce and modify a 1986 support order of the Family Court, Bronx County, to collect dental expenses incurred by the parties’ younger son, and to compel the father to contribute toward this child’s college expenses. The Family Court dismissed the petitions without prejudice, finding that they should have been brought pursuant to the procedures of the Uniform Support of Dependents Law (Domestic Relations Law article 3-A, hereinafter USDL) and not pursuant to Family Court Act article 4, and that accordingly, the matter should have been transferred to the Family Court, Bronx County.

The issue in this case is whether the Family erred in denying the petition for modification of child support by the mother.

Published on: June 12, 2013

Court Decides if Juvenile is entitled to Habeas Corpus Relief

by Stephen Bilkis

Upon this Writ of Habeas Corpus, petitioner Elizabeth Stuart Calvert, the Law Guardian of Relator, seeks his release upon the grounds that Family Court Judge improperly adjourned the dispositional hearing beyond the total twenty (20) day period authorized for “good cause” under FCA § 350.1, subd. 5. A New York Family Lawyer said that, on July 6, 1987, the Relator, under 16 years of age, was arrested inside premises 849 Bruckner Boulevard, Bronx, New York, by Police Officer Gwendolyn Guy of the 41st Precinct, Bronx County. Thereafter, a Bronx Family Lawyer said that, a juvenile delinquency petition, under FCA § 311.1 was filed charging Relator with acts which, if an adult, constitute the crimes of: Burglary in the Second and Third Degrees; Criminal Trespass in the Second Degree; Possession of Burglar’s Tools and Criminal Mischief in the Fourth Degree. Relator was present, with his father and step-mother, represented by the Legal Aid Society, which entered a denial and objected to his remand until July 10, 1987, by Family Court Judge.

A Bronx Order of Protection Lawyer said that, on July 10, 1987, Relator pleaded guilty to Criminal Trespass in the Second Degree before the Judge in full satisfaction of the entire FCA § 311.1 petition. The case was set down for a dispositional hearing on July 20, 1987, with the New York City Probation Department (“Probation”) directed to investigate and report (“I & R”) Relator’s background and circumstances, as well as explore placement by the adjourned date. In addition, the Court’s Mental Health Services (“MHS”) was ordered to conduct a mental health study and status examination and report to the Court by the July 20, 1987, adjourned date. In the interim, Relator was remanded to the New York City Commissioner of Juvenile Justice (“CJJ”), which referred Relator to a non-secure detention (“NSD”) facility.

A New York Custody Lawyer said that, At about 11:30 P.M. on July 19, 1987, Relator left the NSD facility without permission, returning to his father’s and cousin’s home (same building) the next morning, claiming he spent most of the night outdoors. Relator’s father then telephoned the Police Department, which returned Relator to CJJ in a secure detention facility (Spofford Juvenile Center) and Family Court custody that morning, being the adjourned date. On July 20, 1987, Relator and his father appeared before Family Court Judge, receiving reports that the Probation Department had not begun its I& R and MHS, had to re-schedule its July 15, 1987 examination because CJJ failed to produce Relator. Since Relator was then detained over ten (10) days, a “good cause” finding was required under FCA § 350.1, subd. 3(a). Judge Lynch found such “good cause” over the objections of Relator and counsel, based upon Relator’s absence from Court that very morning, which probably prevented the Probation interview. A dispositional hearing was now re-scheduled for July 30, 1987, by the Judge ordering, as did Judge Fields on July 10, 1987, the New York City agencies (Probation and MHS) to take the identical actions (I & R and mental health study and status examinations) and make the same reports to the Court. According to Petitioner, the Court, “remarked that failure to complete these reports would require the Realtor’s release on parole on the adjourned date.”

Published on: June 12, 2013

Couples Battle for Custody in Light of Abuse Allegations

by Stephen Bilkis

On 17 July 1997, plaintiff (husband) and defendant (wife) got married. The parties had two children: A who was born on 19 December 2002, and B who was born on 15 December 2004. On 30 June 2005, a matrimonial action was filed by plaintiff. The Court conducted a non-jury trial on March 17, 18, 19, 22, April 8, 9, 12, 13, 2010. A New York Family Lawyer said the plaintiff called one witness to testify at the trial while defendant called four witnesses to testify at the trial. At the request of the Attorney for the Children, the Court conducted in-camera interviews of the two children. Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of the matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the children was changed by the Court twice. The defendant has had temporary physical custody of the children since 15 April 2008.

On the Findings of Fact:

A New York Custody Lawyer said the testimony of plaintiff was found not credible and was often false. Here, plaintiff was extremely combative on the witness stand; he was unable to follow simple Court directives regarding his conduct, demeanor, and decorum during the proceedings; his testimony often defied logic, reason, and common sense; he claimed that he was verbally and emotionally abused by defendant throughout the entire marriage, yet his examples of this alleged abuse consisted of defendant calling him a bum, saying that he did not care, and that he was not responsible; his testimony regarding his prior employment history and finances was vague and evasive; he was unable to provide a clear employment history; he was unable to explain why he has not worked in over six years; he provided no explanation whatsoever regarding why he has not paid the Court Ordered child support for over two years; his testimony regarding the problems which he experienced with supervised visitation was unsupported by the record; the three defense witnesses directly and consistently contradicted his accounts of the problems experienced during the supervised visitation; and each witness unequivocally indicated that it was him who caused all of the problems during visitation.

Published on: June 11, 2013

Complaining Witnesses Seeks to Recant Testimony in Domestic Violence Dispute

by Stephen Bilkis

The case involves a repetitive issue concerning domestic violence. A New York Family Lawyer said the complaining witness/victim of domestic violence wishes to recant her testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.

Defendant moved for an order, pursuant to CPL § 410.20(1), modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the order of protection of the Court dated 3 February 2010. Defense counsel moved post-conviction and post-sentencing for the aforesaid reliefs on three separate dockets after the defendant in a negotiated plea was convicted and sentenced to forty-five (45) days in jail, three (3) years of probation and a “stay away” order of protection in favor of the complainant. More specifically, the defendant in this case pled guilty to one count of Penal law § 120.45(2), stalking in the fourth degree, another count of Penal law § 215.50(3), criminal contempt in the second degree while the count of Penal law § 240.30(1), aggravated harassment in the second degree was dismissed in satisfaction.

The defendant’s motion was denied in its entirety.

Published on: June 11, 2013

Court Questions Jurisdiction of Stay Away Order

by Stephen Bilkis

A man filed a request for an order granting him a decision prohibiting his opponent from continuing the temporary stay away order of protection against him. The opponent however opposes the application, in its entirety.

A New York Family Lawyer said this case started when the man was arrested because of the complaint of a woman. On that same day, the judge of the district court arraigned the man. Over the man’s counsel’s objection, the judge set bail and as a condition of bail, she issued a temporary stay away order of protection against the man. Even if the man’s counsel requested that a hearing be held concerning the propriety of issuing the order, no hearing was conducted at that time. Instead, the judge ordered that the hearing be held on the date of the next adjournment. The man appeared before his opponent. After hearing the arguments from both parties regarding to whether or not to hold a temporary stay away order of protection hearing. But, the court denied the man’s counsel’s application for the hearing.

The man, when arrested in the criminal matter and for some time prior, shared a residence with the complainant and their child. Sources revealed that pursuant to the temporary stay away order of protection, the man was required to stay away from the complainant at her home and it resulted in his inability to legally live in his home.

Published on: June 10, 2013

Court Decides Adoption Case

by Stephen Bilkis

The Court adjudicated the child as neglected child in a 59-page written decision outlining the history of the neglect case as well as the dispositional orders issued by the Court on the same date. A New York Family Lawyer said at that point, the child had been in care. The judge’s dispositional order was quite clear. It required that the children be placed in care for 12 months and the defendant mother be placed under the Administration for Child Services (ACS) supervision for 12 months.

The order of the court also issued an order of protection against the respondent mother in favor of the children providing that she shall not interfere with their care and custody by ACS or its agent and shall have only supervised visitation with the children at the agency and that she was required to comply with the terms and conditions specified in said order of protection which was incorporated into the dispositional order. Furthermore, the dispositional order required that the respondent mother was to establish and maintain a verifiable place of residence and keep ACS/Agency appraised of her residence at all times, as well as a means of reliable communication such as mailing address and telephone number. A New York Custody Lawyer said she was also to establish a verifiable source of income. The mother was to be notified of the planning conferences to be held with respect to the children. She has the right to attend such conferences and the right of respondent to be accompanied by counsel or other person. It also required that the children were to continue to receive therapy and that ACS was to undertake diligent efforts to encourage and work with the respondent in an effort to effectuate the discharge of the children to her care and respondent was to cooperate, as well, in that regard. It also continued the warrant for the return of the son to foster care.

The dispositional order also wants the ACS to submit written progress reports to the Court, to the respondent mother and the Law Guardian concerning the status of the respondent mother and the children and the implementation of the Court’s order. It also required ACS was to file a petition for a permanency hearing.

Published on: June 9, 2013

Wife Seeks Dissolution Based on Cruel and Inhuman Punishment

by Stephen Bilkis

The husband, age 59 at the time of trial, first came to the United States. He became a member of the Excavators Union. While he was in Italy for approximately eight months, he married his defendant wife. A New York Family Lawyer said they moved into a four room house he owned in Italy. The record is not clear whether the house was already fully built or was still incomplete. Doors, a new roof and a back house were added thereafter. The husband did some of the work and paid for the rest. Prior to the marriage the husband acquired an additional plot of land adjoining the property on which the house stood, with his own funds and in his own name. The parties’ first child was born in Italy. At the time of the child’s birth the husband had already returned to America. Over the next nine years, the husband made three trips to Italy for a total of two years. During those years, the parties had three more children, all born in Italy, twins were born in October 1964 and a son born in July 1968. The wife maintained the house and cared for the children with some assistance from her parents and his parents during those nine years. She cared for the animals, grew crops, and worked as a seamstress and supported herself and the children with limited assistance sent by her husband from America.

A New York Custody Lawyer said upon the insistence of the wife, the husband, by then an American citizen, brought his wife and four children to New York in December 1971. The family took up residence in a small Bronx apartment which the husband had rented.

Within two months of her arrival, the wife began to work as a seamstress, in a factory and at home. She maintained this occupation almost continuously from then until the time of trial, earning between $140 and $150 per week. A Nassau County Family Lawyer said she also maintained the household. The husband was then earning approximately $300 per week. He paid the rent for the apartment, and for a subsequent apartment to which the family moved, at the rate of $120 per month, as well as gas, electric and telephone bills. He made mortgage payments of approximately $140 per month on the parcels of unimproved land which he purchased. The income tax returns of the parties indicate a range of income for the family from $7,000 in 1971 to $21,000 in 1974. The extent to which the husband and the wife each provided funds for food, clothing, etc. is unclear from the record.

Published on: June 9, 2013

Probation Revoked for Juvenile Delinquent

by Stephen Bilkis

A petition was filed against a 15 year old boy alleging that he is a juvenile delinquent. A New York Family Lawyer said the petition alleged that the boy committed acts which, were he an adult, would constitute the crime of criminal possession of a weapon, criminal mischief, and reckless endangerment.

The boy appeared in the court and he was released to the custody of his mother. The court also directed the boy to attend an alternative to detention program and that he observe a 6:00 p.m. curfew.

Later, the presentment agency filed an application to remove the boy from the alternatives to detention program because he had been arrested for attempted burglary. He also missed forty days of school and had been suspended from school twice.