Custody

Published on: March 3, 2013

Custodial Parent Makes a Request to Relocate

by Stephen Bilkis

In this case, the parties were divorced by judgment dated February 13, 2003. The Appellant father appealed from the order of the Supreme Court, Queens County dated August 28, 2009, which granted the Respondent mother’s motion for permission to relocate to North Carolina with the parties’ child.

A New York Family Lawyer said the parties in this case separated shortly after their daughter was born in 2000. They divorced in 2003, after a 2 1/2-year marriage. While the Respondent mother had child custody pursuant to a stipulation of settlement in the divorce proceeding, the child spent the first three weekends of each month with the Appellant father and his family, in addition to holidays and summer vacation.

The Respondent mother moved in the Supreme Court for permission to relocate to North Carolina with the child. At an expedited hearing, Respondent mother asserted that she desired a new beginning for herself and the child and that they would enjoy a higher standard of living and an improved quality of life. A New York Custody Lawyer said while Respondent mother initially proposed continuing the Appellant father’s existing visitation and bearing the expense of flying the child to New York three times per month, she subsequently suggested reducing the Appellant father’s visitation to one visit per month, with extended summer vacation.

Published on: March 2, 2013

Father Claims Child is Being Sexually Abused

by Stephen Bilkis

Each party to these post-judgment proceedings seeks modification of the Judgment of Divorce from joint custody to sole custody. A New York Family Lawyer said the issue in the father’s case is whether the mother’s allegation of sexual abuse of the child involving the father and her request of the Court to restrict his access to the child constitutes a change of circumstances to modify the award of joint custody with physical residence to the mother, and if so, whether it is in the best interest of the child for sole custody and physical residence to be awarded to the father. The mother in her petition alleges the father is an unfit parent based on the sexual abuse allegations and requests his visitation be eliminated or supervised. The Court finds that there has been a sufficient change of circumstances and it is in the best interests of the child for her father to be granted sole custody.

The parties to this custody proceeding were married on September 7, 1991. There is one child of the marriage, born on July 27, 1995. They were divorced by Judgment of Divorce dated October 11, 1999 in the Supreme Court of the State of New York. A New York Custody Lawyer said the Judgment incorporated a Stipulation of Settlement entered into between the parties on the record in Court on July 30, 1999, and a written stipulation regarding custody, dated July 30, 1999, which survives and is not merged in the Judgment, and pursuant to which the parties share joint child custody, with primary physical child custody to the mother. The Supreme Court did not retain exclusive jurisdiction to modify the Judgment. The father was awarded child visitation schedule that consisted of Wednesday evenings between 5:30 p.m. and 7:30 p.m.; alternate weekends beginning Friday evenings at 6:00 p.m. through Sunday at 6:00 p.m.; and two weeks summer vacation in July and two weeks in August. The order also made provisions for holidays.

The complainant father and the opponent mother each seek modification of the Judgment and sole legal and physical custody of the child. A Nassau County Family Lawyer said the child has lived with her mother throughout her life. The father argues that the mother’s repeated fourth false accusation of sexual abuse, is indicative of the mother’s emotional instability and her attempts to frustrate his relationship with his daughter and that it is in the child’s best interest that the Judgment be modified to award him sole legal and physical custody. The Court finds that the mother’s fourth allegation of sexual abuse of the child is a sufficient change in circumstance, in that the mother, in part of a continuing pattern of attacks on the father in which she asked the Court to be her partner, interferes with and compromises his relationship with the child and, potentially, compromises the child’s future development. The Court finds that it is in the child’s best interest for custody to be awarded to the father in that continued joint custody and physical residence to the mother is detrimental to the child’s current and future development.

Published on: March 1, 2013

Young Mother Faces Neglect Charges

by Stephen Bilkis

A neglect complaint was filed against a 16 years old mother alleging that she left her child with her mother and other unknown individuals without making adequate provisions for her care. There were also allegations of poor hygiene and medical neglect with respect to a serious diaper rash. The 16 years old mother made an admission of neglect and her child was placed with the commissioner for an initial period of twelve months. A New York Family Lawyer said the goal of the permanency plan was return to the parent and the young mother was expected to complete parenting skills classes, engage in therapy and to obtain suitable housing and employment in order to meet that goal.

A social service group was assigned as the foster care agency to manage the family. The record in court contains no evidence as to when the said agency received the contract. There are no records at all when the child was placed in care. Almost three full years, the agency placed into evidence and the only records documenting an assorted 13 months of casework by no less than five different caseworkers. The young mother testified on her own behalf and the law guardian consequently did not present any independent evidence.

The complainant alleges that although the agency arranged visitation between the young mother and her child, the mother for more than a year following the date on which the child came into the agency’s care, failed substantially and continuously or repeatedly to maintain contact with her child. The caseworker’s records do not reflect any formal visitation schedule set up by the agency between the mother and her child. A New York Custody Lawyer said in fact, the casework records only noted the visits by the mother to her child in the foster home in passing, as part of her observations in home visits at the foster home, or in conversations with the foster mother. However, those limited references suggested that the visitation between the mother and her child was regular and frequent.

Published on: February 25, 2013

Court Decides that Family Court and Criminal Court have Concurrent Jurisdiction

by Stephen Bilkis

A woman filed divorce action against her husband on the ground of abuse. A New York Family Lawyer said the Court issued a decree of divorce and gave the custody of their son to the woman. An Order of Protection was made permanent by the Court; the husband was ordered to leave the conjugal apartment and not to assault, menace or otherwise commit any disorderly conduct with his ex-spouse. The husband was given visitation rights. However, twelve months after the order, the woman filed a family offense petition before the Family Court.

She filed a complaint with the police that her ex-husband had violated the Order of Protection issued by the Family Court by going to her apartment, hitting her in front of their son, repeatedly calling her home phone number and threatening her and her child. The police arrested her ex-husband and he was arraigned.

At his arraignment he asked the dismissal of the cases for aggravated assault, aggravated harassment and harassment on the ground that his ex-wife filed an election where she agreed that these charges be tried not before the criminal courts but within the Family court that had jurisdiction over them.

Published on: February 24, 2013

Court Decides if Puerto Rican Custody Order can be Upheld in New York

by Stephen Bilkis

A Puerto Rican couple married while they were citizens and residents of Puerto Rico. They had one son. The marriage was acrimonious. A New York Family Lawyer said the husband physically abused the wife and threatened her life. He threw out the woman from their conjugal home. The woman escaped her abusive husband and fled with her seven month old son.

The wife lived with her relatives in San Juan, the capital of Puerto Rico but then a few months later, she left Puerto Rico and settled for good in New York City. Soon after the wife left the conjugal home with her son, her husband filed divorce proceedings against his wife. The woman was not served a summons. She had no idea that divorce proceedings had been filed against her. The husband served her notice of the divorce proceedings by publication in a newspaper of general circulation in Puerto Rico. On the date of the hearing, the wife failed to appear. A default decree of divorce was ordered. Custody was awarded to the husband and no visitation rights were awarded to the woman. The Puerto Rican Court recognized that at the time that it ordered the custody of the child to be given to the father, the physical custody of the child was with the wife. For this reason, the Puerto Rican divorce court also ordered the husband to pay $10 weekly support until such time that the husband gains custody of his son. Despite the custody decree, the husband never looked for his son. He never took physical custody of their son. And he did not pay child support as mandated by the Puerto Rican Court.

A New York Custody Lawyer said the wife went back to Puerto Rico six years after the divorce decree was entered against her. She asked the Puerto Rican divorce court to enforce that part of its decision for her ex-husband to pay child support of $10.

Published on: February 23, 2013

Court Discusses Whether Plaintiff Sufficiently Stated a Cause of Action

by Stephen Bilkis

Prior to the incident, infant plaintiff’s father was known to the defendant’s police officers at the 43rd Precinct, having previously been arrested by them approximately six times for drunkenness, abusive and physical assault upon his family. In July, 1975 he assaulted his wife with a knife, inflicting lacerations which required suturing at the Hospital; a New York Family Lawyer said that she thereafter brought a divorce action, which resulted in further violence by the infant plaintiff’s father and threats by him that he would kill her and the children if she proceeded with the divorce action. A Bronx Order of Protection Lawyer said that, the infant’s mother thereupon went into the Family Court where, she obtained a preliminary order of protection against her husband; thereafter, the order was finalized for one year and, over her strenuous objections, was amended to grant to the father visitation with the infant plaintiff from 10:00 A.M. on Saturdays to 6:00 P.M. on Sundays. After the parties left the courtroom the father attempted to assault his wife and he had to be restrained by a court officer. The Family Court judge was informed of the incident and thereupon directed the court officer to get him out of the building; however, the judge did not rescind his week-end visitation with the infant.

A Bronx Order of Protection Lawyer said that, in accordance with the provisions of the Family Court Act, a “Certificate of Order of Protection” was duly issued to the infant’s mother by the clerk of that court on November 6, 1975 certifying that an Order of Protection had been issued to her, pursuant to which the infant’s father was forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward petitioner and he is to remain away from the home of said petitioner.”

A New York Custody Lawyer said two days later, the infant’s mother took the infant to the 43rd Precinct to accord the infant’s father his week-end visitation. He took the infant and, as he was walking away, he made a death threat against his wife, and the infant, and he indicated to his wife that before the week-end was up she would be making “the sign of the cross” which to them meant that there would be a death. The mother immediately went into the precinct and told the desk officer of the death threats to herself and the infant; she showed the desk officer the Certificate of Order of Protection; she advised him of her fears and told him that she was frightened for the safety of her child and herself and that the Order of Protection protected her from such threats and she requested the police to take her husband into custody for violating said order. However, the police refused to do anything whatsoever. The infant’s father failed to return the infant at 6:00 P.M., as required by the Order of Protection. The mother again went into the station house and she again spoke to the police officer and the lieutenant she again demanded that the police arrest her husband for violating the order and protect the infant; once again the police refused to do anything whatsoever and told her to wait a couple of hours and that “perhaps” the father had taken the infant to a movie. Thereafter, the infant father’s sister entered his apartment. She found him lying on the floor with an empty whiskey bottle and an empty pill bottle lying beside him. She also found the infant, who had been viciously attacked, mutilated and severely injured by her father and she telephoned the police. The father had attacked the infant at about 7:00 P.M. with a fork, a knife and screwdriver; he had attempted to saw her leg off with a saw; she had been slashed from head to toe and she had sustained severe multiple internal injuries. Minutes later police officers from the same 43rd Precinct arrived and they rushed the infant to the Hospital in their police car, without waiting for an ambulance; the infant was immediately taken into surgery and she was operated. The infant was in a coma for several days and she remained in a critical condition for approximately three weeks and was hospitalized until December 19, 1975 she remains severely and permanently disabled. The father was arrested after the attack on the infant and he was thereafter indicted by the Grand Jury, tried and found guilty of attempted murder of the infant and he is now serving a jail sentence for the crime.

Published on: February 21, 2013

Court Decides Visitation Rights of Incarcerated Parents

by Stephen Bilkis

The children in question were placed in petitioner’s foster care. A New York Family Lawyer said the birth mother’s drug use was the catalyst for the placement. Her whereabouts are unknown and she was not present at any of the Family Court proceedings. Respondent is the father of the children. At the time of the children’s placement, he was incarcerated in state prison on a murder conviction and will remain incarcerated until at least May 2016. By that time, both children will have passed their 18th birthdays. In early August 2000, an agency case worker took the children to visit respondent in prison.

A Bronx Child Custody Lawyer said that, according to the agency worker this was the only visit respondent had with the children prior to the agency’s filing of separate petitions seeking the termination of his parental rights. These petitions alleged that respondent had evinced intent to forgo those rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and had therefore abandoned them. She testified that she contacted respondent through prison channels after the aforementioned visit, but he never responded or contacted her. Some of the letters she sent to him were returned to the agency but she did not produce at the hearing copies of any of the letters she claimed to have sent. She testified that respondent provided no financial support for the children did not maintain contact with them, did not send cards, letters or gifts and that no one contacted the agency on his behalf before the petitions were filed. She maintained that the agency did nothing to prevent or discourage respondent from coming forward, nor were there any other obstacles that might have prevented him from contacting the agency.

A New York Custody Lawyer said that, on cross-examination, however, the agency worker testified that before the petitions were filed, she telephonically spoke with a family service specialist from the Osborne Association who had contacted her on respondent’s behalf regarding the children. The Association facilitates family visits for prisoners incarcerated in New York correctional facilities. She gave the specialist the children’s foster parents’ names and addresses, as well as a letter acknowledging that the agency was in agreement with the Association’s scheduling a visit between the children and respondent in August 2004. She stated that the first time she personally met with the specialist was during that month. Upon questioning by the court, she admitted that she did not send any letters to respondent between February and August 2004 to notify him of any conferences, and did not make any other attempt to contact him during that six-month period. She never asked her supervisor if she could contact respondent directly, either orally or in writing, but stated that she would have had no problem with such direct communication had she known it was permitted.

Published on: February 20, 2013

Court Discusses Concept of Permanent Neglect

by Stephen Bilkis

This is an appeal from an order of the Family Court, New York County, dismissing a petition brought by petitioner Hospital seeking (1) termination of the parental rights of respondent mother; (2) custody of the subject child; and (3) a declaration that the child was free for adoption, pursuant to Social Services Law Section 384-b and Family Court Act, Article Six. A New York Family Lawyer said the out-of-wedlock infant was born on March 25, 1974. The current whereabouts of the father are unknown and there is no evidence of any contact or support by him at any time. The infant came into the custody of the hospital on April 21, 1976 after he was found strapped in his stroller, alone and unattended, at about 4 a. m., near an abandoned building in Brooklyn. The mother was apprehended and arrested for burglary of the building. She subsequently pleaded guilty to criminal trespass. She claimed that on her way to the store with the child she was pursued and had to leave the infant unattended. In consequence of this incident, a finding of neglect was made against the mother by the Family Court, Kings County.

A New York Custody Lawyer said that, the child was placed with the Commissioner of Social Services for an initial period of eight months. Thereafter placement was extended until March, 1979. The mother, herself, had been placed in foster care at the age of 3 because her own mother was unable to care for her and her five brothers and sisters, four of whom were placed in foster care. Her schooling ended at the 10th grade. She was transferred from one institution to another and from one foster family to another until the age of 18. The longest period with a foster parent was from 1972 to 1974. Although she knew her parents, she had no relationship with them. In a psychological evaluation in connection with the placement of the subject child, the mother was diagnosed as an inadequate personality with anxiety features needing psychiatric treatment and counseling. “Therapy should be directed in part to help her to accept responsibility for everything which may happen to her infant.”

During 1976 the mother visited with her son on 12 or 13 separate occasions out of a possible 60 available dates, as noted in the agency records. On September 17, 1976, at the extension of placement hearing, she indicated upset at the decision. She believed her son should have been released to her. She was directed to avail herself of counseling which the agency was directed to provide. In December 1976 she expressed upset that her son was in a foster home in Bronx. In view of the fact that she lived in Brooklyn and she was in an advanced state of pregnancy with a second child, it would be difficult for her to make the long trip to Bronx and visit her son. She could not visit him until after the baby was born. During the entire year 1977, the mother visited the subject child only once. In October 1977 she advised the agency that she wanted her son returned but she was too busy with her second baby. During 1977 she had financial problems, moved from place to place and had fires in at least two of her places of residence. On June 8, 1978 she stated that she could not plan for his son, that she no longer lived with his paramour and was now living with another man. She wished the agency to continue to care for her son and to help her with the many decisions she would have to make. Her new paramour had three children in foster care in Brooklyn. She admitted she could not care for the three children in addition to his son.

Published on: February 19, 2013

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

The natural parents, never married but lived together from 1967 to 1974, during which time three children were born. 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.A New York Family Lawyer said in 1975 the natural mother voluntarily placed the second born child, who suffers from severe physical and mental handicaps, in temporary foster care. The mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the Commissioner of Social Services custody for 18 months. A Bronx Child Custody Lawyer said that, during his entire imprisonment the natural father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the natural mother. Only after the agency, through its own diligent efforts, located him in a Correctional Facility in August 1977, did the natural father learned of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek 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. A New York Custody Lawyer said after she had been placed in their home for some two months, the foster parents’ requested that the two other children join her; the children were reunited in September 1977 for the first time since 1975.

A Bronx Child Custody Lawyer said that the agency denied the natural father’s requests for 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 natural father, having been only one year old when he was imprisoned, and the handicapped child being mentally incapacitated. When these proceedings came to trial the natural father was unemployed, on parole, and living on public assistance with a woman he had known less than a year, who was expecting his child in December 1978. A New York Custody Lawyer said the foster parents live with the three children in a three-bedroom suburban garden apartment. The foster father is employed as a maintenance man; foster mother is a full-time housewife.

A Nassau County Family Lawyer said that the New York Hospital filed a petition pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of custody and guardianship to NYFH; a petition was also 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.

Published on: February 19, 2013

Respondent Claims Due Process Rights Were Violated

by Stephen Bilkis

In this custody proceeding, a New York Family Lawyer said that, the Family Court, Bronx, awarded petitioner mother sole physical and legal custody of the parties’ child dismissed respondent father’s petitions based on violations of temporary orders of visitation, denied respondent’s second motion to dismiss the child custody petition, and issued a five-year order of protection forbidding respondent from exercising any corporal punishment against the child. A Bronx Order of Protection Lawyer said that defendant father appealed the decision.

The issue in this case is whether the Family Court erred in awarding the sole physical and legal custody of the child to the petitioner mother.

A New York Custody Lawyer said the Court said that, with regard to deprivation of respondent’s visitation rights, he had ample opportunity to present evidence of petitioner’s violations during the custody trial, but failed to do so. Moreover, the record indicates that petitioner supported the child’s regular and frequent visits with her father. Denial of respondent’s request for a subpoena was a proper exercise of discretion. There is no indication in the record that petitioner was using illegal drugs or had used them in the recent past, or that she had any medical or psychological condition that might negatively impact on her care for the child.