Custody

Published on: April 11, 2013

Court Decides Criminal Case Regarding Child Neglect

by Stephen Bilkis

In this criminal case, one of the allegations in the neglect proceeding involves defendant’s purported violation of an interim order of protection issued by a Family Court judge. In its earlier decision dated June 15, 2012, this Court ruled, inter alia, that the claim of double jeopardy had not ripened because the Family Court hearing was, and in fact still is, ongoing, and no punitive sanction has been imposed. A New York Family Lawyer said that, the Court denies the motion to renew, but grants the motion for re-argument. Upon re-argument, based on the specific facts of this case and analysis of federal constitutional principles, the Court reverses its original ruling to the extent of finding this prosecution is barred from proceeding as a matter of federal constitutional law.

A Bronx Family Lawyer said that, in the criminal matter, the trial court denied defendant’s motion to dismiss the indictment on double jeopardy grounds. Defendant was subsequently convicted in the criminal action on each of the five counts of criminal contempt and aggravated harassment, following a jury trial. A New York Custody Lawyer said the Court of Appeals found that “because the same acts violated both orders, it would be impossible for defendant to be guilty of first degree criminal contempt for violating the City Court order of protection without concomitantly being guilty of violating the Family Court order of protection.” Thus, the Court held that the criminal contempt prosecution was barred because of the previous conviction “under Family Court Act article 8.”

A Bronx Order of Protection Lawyer said that, on October 7, 2010, an interim order of protection was issued under Section 1029 of the Family Court Act in connection with a civil child neglect proceeding brought under Article 10 of that act. Five additional interim orders of protection were issued between that date and August 17, 2011. A subsequent neglect petition, a civil case also brought under Article 10, alleges, inter alia, defendant violated those interim orders of protection based on conduct which is said to have occurred on January 4, 2011. The criminal case contains a single count alleging a violation of an order of protection issued in Supreme Court, Bronx County on May 26, 2011. Thus, one of the allegations in the civil pleading involves conduct which allegedly took place five months prior to the issuance of the order of protection defendant is accused of violating in this matter.

Published on: April 10, 2013

Court Determines Whether Legal Guardians Acted in Good Faith

by Stephen Bilkis

Sometime in August 1987, a child (the subject child) who was then 5 years of age was brought by her mother, the plaintiff, to a certain hospital with complaints of constipation and occasional bloody stools. Defendant A, a doctor, examined her in the presence of another doctor, B, and suspected sexual abuse. A New York Family Lawyer said this was then reported to the Bureau of Child Welfare. Thereafter, the child was taken from her parents’ custody, remained in the hospital for two weeks, and was ultimately placed in the care of her maternal grandmother.

Consequently, the City filed a sexual abuse petition in Family Court of Bronx County. The Legal Aid Society, and its staff attorneys (the Legal Aid defendants), were assigned as the law guardian for the child. The parents denied involvement in any sexual abuse. On 15 December 1987, the court held a fact finding hearing. The law guardian took the position that the physical findings were inconsistent with the explanations offered by the parents and were consistent with sexual abuse of the child. The court found, by a preponderance of the credible evidence, that the child was sexually abused. On 23 June 1986, after a dispositional hearing, the court placed the child with the Department of Social Services for 18 months. Eventually the child was returned to her parents’ custody.

A New York Custody Lawyer said the parents sued, in their own right and as the parents and natural guardians of the subject child. On the first cause of action, on behalf of the subject child, the parents alleged legal and medical malpractice. They claimed that the Legal Aid defendants should have called C, also a doctor at the hospital, to testify at the fact finding hearing; that C had dealt with the parties and had concluded, without a physical examination of the child, that there was no sexual abuse; that C did testify at the dispositional hearing; that the hospital and its doctors committed medical malpractice by misdiagnosing the case and by submitting an erroneous report of sexual abuse; that the City and its attorneys, the defendants, prosecuted the matter in the Family Court to which they too failed to subpoena C. On the second cause of action, plaintiff mother filed it against her attorney in the Family Court, D. On the third cause of action, plaintiff father filed it against his attorney in the Family Court, E.

Published on: April 9, 2013

Plaintiff Claims Fraud, Duress and Undue Influence in Divorce Case

by Stephen Bilkis

Plaintiff is the daughter of an immigrant with his first wife who had come to the country and prospered greatly. She is physically disabled. A New York Family Lawyer said when she was six months of age, she was a victim of poliomyelitis. She walked in braces for most of her life. When she was at her thirties, she was able to walk without braces after extensive medical treatments, including surgery, but still required the aid of two canes. At the age of 33, she met a man on a cruise ship whom she later married. They spent most of their time in France, with frequent visits to her parents at their home in New York. She had always been supported by her father even after she got married. She and her husband were entirely supported by her father.

Sometime in 1952, plaintiff got pregnant, and because of her physical condition, the child could only be delivered by caesarean section. During this time, her father, who was then sick with diabetes, sustained a coronary thrombosis, and her husband was also seriously ill, suffering from ulcers and requiring critical surgery, with no assurance of successful outcome. A New York Custody Lawyer said the medical bills of her husband, in the past and those to come, were shouldered by her father. She was supplied with many additional facilities and aids required by reason of her physical handicaps. The impending caesarean delivery was also supposed to be financed by her father, who was himself an ill man.

On 17 January 1952, when plaintiff was at her father’s apartment in Manhattan and while her father and his wife were in Florida, she signed a certain trust indenture, at which time she sprained her ankle. However, in the summer of 1951, plaintiff had apparently been presented with a trust indenture similar, in large part, to the one that she signed in 1952. This trust, too, made unusual provisions, which in fact were invalid, for any children she might have. This draft was discussed in great detail, even being corrected in several particulars by plaintiff. Most importantly, this draft also provided for the corpus to be eventually diverted to the children of plaintiff’s sister.

Published on: April 6, 2013

Court Determines if Subpoenas Were Defective

by Stephen Bilkis

In an action by the guardian of the person and property of an incompetent (ward), the founder and former president and chief executive officer of defendant and third-party plaintiff, a not-for-profit corporation formed in 1968 to deliver various health-related and other services to the poor in the South Bronx. A New York Family Lawyer said the suit includes claims for, among other things, breach of contract, an accounting of deferred compensation deposited into a trust account for the ward, liquidated damages, and breach of corporation’s obligation to pay the ward’s medical expenses and retirement benefits.

According to a New York Custody Lawyer, the corporation answered the complaint, denying the material allegations therein, and commenced a third-party action against the ward’s Family Trust, established by the members of his family, in which it alleges, inter alia, that the ward engaged in various acts of self-dealing and malfeasance, including improper maintenance of time records and misuse of corporate funds and credit cards for certain personal expenses for hotels, trips and gifts. According to the corporation, the incompetent previously obtained substantial payments and benefits from it and now seeks additional compensation based on unverified, inaccurate and unreliable time records, as well as unauthorized benefits and insurance policies for himself and others. The corporation also seeks damages and/or an offset against all amounts sought by plaintiff, plus a return of prior payments made to, or on behalf of, the ward during the period he breached his fiduciary duties, including disgorgement of assets transferred by the ward to the family trust.

Thereafter, the corporation served a total of 13 subpoenas duces tecum on nonparties, including 3 nonparty movants, seeking, inter alia, production of all documents concerning the ward’s relationship to the nonparty movants, any business trips taken by him on behalf of the nonparty movants, and the employment or equity interest of any member of his family in the nonparty movants. A Nassau County Family Lawyer said the subpoenas also sought all documents regarding any equity interest of the corporation’s former comptroller, and the payment of salary, benefits and dividends to him in connection with his relationship to the nonparty movants. Finally, the subpoenas sought all documents concerning any contracts between the nonparty movants and the corporation.

Published on: April 6, 2013

Court Decides Validity of Custody Order from Dominican Republic

by Stephen Bilkis

In this Family case, the subject children are the parties’ twin sons, born in the Dominican Republic. The father obtained a default order of custody there in 2002, an order appealed by the mother and affirmed by the Dominican court, a month after she had brought the boys to the United States. In quick succession, the Integrated Domestic Violence Court—which has jurisdiction over both criminal and Family law matters—received a criminal prosecution against the father based on his alleged threats to kill the mother; a writ of habeas corpus filed by the father under article 6 of the Family Court Act seeking enforcement of the Dominican custody order; a petition for custody of the two boys filed by the mother under article 6 of the Family Court Act; and a Family offense petition filed the same day by the mother under article 8 of the Family Court Act, alleging additional acts of domestic violence.

A Bronx County Family Attorney said that a law guardian assigned to represent the children reported an extensive history of domestic violence. Based upon this information, the court assumed temporary emergency jurisdiction under Domestic Relations Law § 76-c, and directed the Administration for Children’s Services to interview both parents and the children.

A New York Family Lawyer said the review of the documents of the Dominican proceedings confirms that the mother and father separated in 1998. At that time, pursuant to an agreement signed before assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the Family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately. The mother left the Dominican Republic in 1999, leaving the children with her mother, remarrying in 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents of the Distrito Nacional. The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.

Published on: April 5, 2013

Respondent Mother Found in Civil Contempt

by Stephen Bilkis

In this abuse and neglect case, the Administration for Children’s Services (ACS) filed child neglect petitions, pursuant to Family Court Act Article 10, against Respondent Mother in Bronx County Family Court. A New York Family Lawyer said the petitions alleged that a hospital social worker stated that the child, two years of age, had been in the hospital since January 2009, due to his failure-to-thrive and developmental delays, and that he had special needs, a G-tube, which was required for feeding, and a colostomy bag, and that he required exceptional care and special medical equipment. The social worker stated that Respondent Mother had taken the child on a visit and then refused to return him to the hospital. She did not have necessary medical supplies, nor had she completed the medical training to care for the child.

A Bronx Family Attorney said that when Respondent Mother returned the child to the hospital on July 2010, the child was “observed by hospital staff to be dehydrated with sunken eyes and dry lips. The subject child had also lost approximately 20 percent of his body weight.” The Petition also alleged that in January 2010 she attempted to remove the child from the hospital without permission and the police had to be called. In the seven months prior to June 2010, Respondent Mother had visited with the child only three times and had not called the hospital to inquire about him. The Petition further stated that the four children who resided with Respondent Mother did not have up-to-date immunizations. A New York Custody Lawyer said the Petition alleged that all of the children were neglected children or in imminent danger of becoming neglected.

Thereafter, an ACS Attorney and an ACS Caseworker appeared before the Court. The Caseworker stated that he had told Respondent Mother of that day’s court date and she told him she would be present. However, she did not appear. He informed the Court that he was not certain as to the whereabouts of the Respondent Mother and the subject children. ACS requested the Court to remand the children to the custody of the ACS Commissioner. The Court directed the ACS Caseworker to step outside to telephone Respondent Mother to inquire as to where she and the children were, and arrange to meet with her. The case was recalled, and the ACS Caseworker returned to court and said that he had spoken to Respondent Mother. She had refused to divulge her location and that of the children. He said he had scheduled a meeting with her at the ACS Brooklyn Field Office. Based on Respondent Mother’s refusal to disclose her whereabouts and that of the children, the Court issued a Warrant of Arrest for Respondent Mother, and ordered production of the children, but stayed execution of the Warrant, directing Respondent Mother to appear voluntarily in Court on July 2010, with the children. The Court granted ACS’s request to remand the child, who remained hospitalized, but denied ACS’s request to remand the four children who resided with Respondent Mother. The Court instructed the ACS Caseworker to inform Respondent Mother of its mandate that she appear in court, provide her with the stayed warrant, again request information as to where she and the subject children were residing, and inquire as to the children’s health care.

Published on: April 3, 2013

Court Determines Neglect within Meaning of Family Court Act

by Stephen Bilkis

On March 12, 1996, the accused mother brought her two-year-old daughter to North Central Bronx Hospital for a neurological examination and psychiatric evaluation on the recommendation of her pediatrician. The child suffered from febrile seizures, frequent ear infections and pica, an eating disorder involving ingestion of nonfood such as paint chips. The director of the hospital’s Child and Adolescent Crisis Intervention Program, which operates out of the emergency room, examined the child and observed the mother’s behavior while she was in the emergency room with her daughter. A New York Family Lawyer said he testified at the Family Court fact-finding hearing she was extremely irritable and hostile toward the child. Specifically, she called the child a bitch; repeatedly referred to the child as a bad child. The child deliberately engaged in disruptive behavior to irritate her mother, such as climbing on the stove, turning on the burners, and setting papers on fire. The mother said that her child barely slept at night, and that she in turn prevented the child from napping during the day to show her what it felt like to stay awake. While at the hospital, when the child indicated she had to go to the bathroom, the mother told her to go ahead and wet herself. The accused mother also said it was a miracle that she had not killed the child; that she had thoughts of killing herself; and that she had an insurance policy that would take care of her other children.

The hospital director observed that, while in the emergency room, the child stayed away from her mother, running and climbing everywhere but the mother made no effort to supervise or restrain her. Based on his observations and examination of the child, he believed that Megan was suffering from various language disorders and hearing impairment, as well as severe hyper-activity. A New York Custody Lawyer said based on the mother’s statement that the child ate lipstick, nail polish and powder, he suspected that she might also have lead poisoning. He informed the mother that her child needed certain assessments or tests, and explained that some of her disruptive behavior might be due to her physical ailments. She denied that the child suffered from any of the physical ailments enumerated and initially refused to consent to any of the tests, insisting that the child did not need them.

The hospital director further testified that the accused mother said three times that she had a weapon on her and made specific threats toward him and other hospital staff. He and the staff became so concerned by her behavior and threats that they were moved to contact the adult psychiatric emergency room to have respondent examined.

Published on: April 2, 2013

Court Hears Case Regarding Professional Misconduct of Legal Counsel

by Stephen Bilkis

The petition contains 10 charges of professional misconduct against the accused counsel. After a hearing, the Special Referee sustained all 10 charges. The Grievance Committee moved to confirm the Special Referee’s report. A New York Family Lawyer said in response to the Grievance Committee’s motion, the accused counsel submits that, although his misconduct adversely reflects upon his fitness to practice law, it does not rise to the level suggested by Grievance Counsel with respect to a final sanction. The accused requests that any further discipline be limited to a suspension of one year, retroactive to the date of his interim suspension.

As set forth in the petition, the accused counsel was on the Family Court Panel of the Assigned Counsel Plan for the Appellate Division, First Department between approximately 1980 and March 4, 1996. As an attorney on the panel, the accused was assigned to represent indigent clients in the Bronx County Family Court.

A New York Custody Lawyer said on or about October 1992, the accused was assigned to represent a client in a Family Court matter in Bronx. During several meetings with that client, in conference rooms at the Bronx County Family Court, the accused man addressed sexually suggestive remarks to the complainant, requesting all the time that she touch his penis.

Published on: April 1, 2013

Petitioner Seeks Protective Order in Light of Domestic Violence

by Stephen Bilkis

On June 30, 2010, Petitioner filed an Illegal Lockout proceeding by order to show cause in lieu of notice of petition, alleging that on May 5, 2010, his wife, Respondent had illegally locked him out of their apartment located at 1880 Valentine Avenue, Bronx, New York. Neither party appeared on the return date nor did the court dismiss the petition. A New York Family Lawyer said that, petitioner filed a second Illegal Lockout proceeding. On that occasion, Petitioner alleged that Respondent wife had locked him out of the subject premises in February 2010. Although Respondent appeared, Petitioner again failed to appear and the court dismissed that proceeding as well.

A New York Custody Lawyer said that, petitioner filed the Illegal Lockout proceeding now before the court, by order to show cause in lieu of notice of petition, on July 16, 2010, alleging that his wife had locked him out of the subject premises. Petitioner further alleged that he had contacted the police and that the police ordered him to leave. On July 23, 2010, both parties appeared and this court ascertained that on July 16, 2010, Family Court, Bronx County, granted each party a Temporary Order of Protection against the other. The Order of Protection obtained by respondent directed to petitioner, to stay away from respondent and the three minor children who reside with her at 1880 Valentine Avenue, Bronx, New York, and expressly excluded Petitioner from their home, the subject premises. In addition, Petitioner herein was directed to stay away from respondent’s place of employment and to refrain from any communication or other contact with the parties listed in the Order, except for court-ordered visitation with the parties’ infant child. Further, there was currently pending in Family Court a Family Offense proceeding, and a child custody and visitation proceeding, which listed petitioner’s address as 1160 Wheeler Avenue, Apt. # 1, Bronx, New York, not the address of the subject premises of this Lockout proceeding. Based upon the information presented, this court determined that Family Court was the most appropriate forum to resolve the parties’ dispute and dismissed the petition. The parties were directed to seek recourse in Family Court.

A Queens Family Lawyer said that, petitioner filed an order to show cause in Housing Court, alleging that the Family Court petition did not accurately state his address. On July 30, 2010, this court denied Petitioner’s motion based upon improper service. On August 4, 2010, Petitioner filed a second order to show cause in which he alleged that he had proof that Family Court had misstated his address. On August 13, 2010, the motion was adjourned to September 7, 2010. Petitioner failed to appear and the court again denied the motion.

Published on: March 20, 2013

Mother Charged with Severe Abuse of Child

by Stephen Bilkis

On June 9, 2009, the Administration for Children’s Services (ACS) filed a petition against Respondent Mother alleging she had abused and neglected her daughter. On June 8, 2009, a physician at the Medical Center reported that the child was brought to the hospital by EMS after Respondent found the child in an abnormal sleeping position and when he repositioned the child he had an abnormal pulse. A New York Family Lawyer said the child was brought to the hospital at 4:53 p.m. at which time he was pulse-less and all attempts to revive the child were unsuccessful; the child was pronounced dead at 6:30 p.m. The medical examiner reported that the official cause of death for the child is whiplash, shaking and blunt impacts of the head with subarachnoid and subdural hemorrhages. The child’s death has been ruled a homicide.

A New York Custody Lawyer said that, respondent-mother admitted to ACS ESC and Police at the 47th precinct that on June 8, 2009, the child, woke up around 1:00 p.m. and was fussing and crying and didn’t want to sleep. The Respondent mother admitted that she was stressed out and tired and that the Respondent-mother shook the baby forcefully, several times at which point the baby stopped crying and the Respondent mother put him back in bed to sleep.

A New York Custody Lawyer said that, in its Summation dated November 7, 2011, ACS stated that it has presented clear and convincing evidence that Respondent Mother acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven “aggravated circumstances” and that the infant was a “severely” abused child as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a), and that Respondent Mother failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as defined in Social Services Law 384-b (8) (a) as to the subject child. Further, based on the clear and convincing evidence of the heinous nature of Respondent Mother’s abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist Respondent Mother in reunification with the surviving child.