Articles Posted in Queens

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.

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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.

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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.

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A Bronx Order of Protection Lawyer said that, the petitioners, pursuant to Article 78 CPLR, seek relief in the nature of prohibition restraining the respondent court (Family Court) from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing. Relief pursuant to Article 78 CPLR is an appropriate remedy upon such claim. Movant has properly sought such relief here (CPLR 506(b)).

A New York Family Lawyer said that, the infant petitioner was charged with the commission of an act which would be a crime if committed by an adult. A fact-finding hearing was commenced thereon and there was a failure of proof when the complaining witness admitted she could not identify the infant. The record submitted establishes that there may have been a witness who might have supplied the necessary identification, but that the witness did not appear and indicated that he would not obey a subpoena to compel his attendance. In addition, it appears that the Court viewed, but without the objection of the attorney for the infant petitioner, probation reports and other records concerning a prior ‘Person in Need of Supervision’ petition brought by the infant petitioner’s mother. Thereupon, the Court declared a mistrial and set the case down for a new hearing upon the expressed grounds ‘because of failure of necessary witness to respond to subpoena and because of Judge’s perusal of other records of respondent’ (the infant petitioner herein).

The issue in this case is whether the Family Court should be restrained from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing.

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The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical child custody. The father was given visitation rights every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation also allowed relocation within 25–miles of the father’s house in Bronx County.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

A New York Custody Lawyer said that after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying to mirror my own childhood. I had a wonderful suburban upbringing. The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.

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The complainant woman filed a Family Offense Petition in the Family Court of Bronx County against her husband. A New York Family Lawyer said acting on the petition, the Family Court issued a permanent Order of Protection in favor of the wife. The Order, the duration of which is 12 months, directed that the husband shall refrain from acts constituting assault, menacing, reckless endangerment, and/or disorderly conduct directed against his wife and it is further ordered that the husband is excluded from the wife’s apartment.

Earlier, the Bronx County Family Court had issued an order governing visitation by the husband to their child.

On August 10, 1987, the complainant filed a Petition for Violation of the Order of Protection in the Bronx Family Court based on conduct allegedly engaged in by the husband on several occasions. It is the conduct complained of on August 9 and 10, 1987 along with the events of July 26, 1987 which likewise form the basis of the criminal charges. A New York Custody Lawyer said also on August 10, 1987, the complainant filed with the Family Court a Petition for Modification of the Visitation Order. Both petitions were signed by the wife on August 10, 1987. The husband was arrested on the wife’s complaint to the police and given a desk appearance ticket returnable in the Bronx Criminal Court.

Plaintiffs are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the custody of their natural parents in February 1982 after it was determined that the five-year-old child had contracted gonorrhea of the throat. The children were first placed with defendant Society and, after approximately two months, were transferred to the custody of defendant Agency. A New York Family Lawyer said that, at her deposition, the five-year-old child testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told the five-year-old child to say that she had fallen off a bicycle. The third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. The said child was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with the said child. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.

A New York Custody Lawyer said that, the complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.

A Queens Family Lawyer said that, this litigation has a long and tortuous history. Plaintiffs filed a bill of particulars in 1985 and a further bill in 1986. The City filed a bill of particulars in 1994, and defendant Agency filed its bill of particulars in 2000. It appears that no depositions were conducted until 1991 and that plaintiffs were not deposed until 1999. The instant motions to dismiss the complaint were interposed in March 2002. All defendants contended that they were subject to statutory immunity pursuant to Social Services Law § 419. Defendant Agency also sought dismissal on two additional grounds: that plaintiffs failed to comply with discovery demands (CPLR 3124, 3126), particularly with respect to deposition testimony, and that the evidence failed to demonstrate LWS knew or should have known that the foster families with whom it placed plaintiffs were unfit. In addition to statutory immunity, the City maintained that it was immune from liability under New York common law.

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The mother of this child petitioned Supreme Court, Special Term, and upon this basis an order was issued requiring the father to show cause why the infant daughter of the parties should not be returned to the mother’s custody. A New York Family Lawyer said that, on October 2, 1961, the parties entered into a separation agreement by which this child’s custody was placed with the mother subject to visitation by father. On October 13, 1961 the Inferior Court, Geneva, State of Alabama, incorporated this custody agreement in its decree divorcing these parents at the suit of the mother. At that time the child was four years old, the only issue of this marriage.

A Bronx Child Custody Lawyer said that, the Special Term of the Supreme Court transferred custody of this child from father to mother on the basis of opposing affidavits, and on default of father, but its order of November 17, 1967 was reversed and remanded to the Special Term for a hearing. A New York Custody Lawyer said the Special Term of the Supreme Court then referred the proceeding to the Family Court under Section 651 of the Family Court Act.

The issues here concern the procedures and criteria and remedy to resolve child custody and visitation affecting this child, as between her divorced parents.

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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.

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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.