Westchester County

Published on: July 23, 2014

Court Decides Issue Related to Paternity Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding brought by the mother of two out-of-wedlock children, all residing in Florida, for their support by their New York putative father. The issue is whether an adjudication of the father’s paternity in a prior proceeding between these parties, and his acknowledgment therein of paternity, are binding and sufficient basis for an order of support, in the face of his contentions that he was then unrepresented by counsel and that the adjudicating court lacked jurisdiction.

A New York Custody Lawyer said the Uniform Support of Dependents Law (USDL) provides for a dependent in one state to their petition that a reciprocating state enforce a duty of support against a respondent domiciled, residing, or found in the latter, testimony being taken from each party ex parte in the respective states. Besides support for spouses and legitimate children, the USDL provides that the natural parents of a child born out of wedlock shall be severally liable for the support of such child, but the liability of the natural father shall not be enforceable unless he has been adjudicated to be the child’s father by a court of competent jurisdiction, or he has acknowledged or shall acknowledge paternity of the child in open court or by a verified written statement.

A Westchester County Family Lawyer said the respondent father denies the mother’s claim, in her present petition filed in Florida, that he is the father of her children. However, in a USDL proceeding between these parties in 1962, when the petitioner mother resided and filed a petition in Arizona, the Children’s Court of Nassau County held the father liable for the support of the children, on the basis of his oral acknowledgment of paternity in that Court.

Published on: July 15, 2014

Appellant Claims Order to Pay Child Support in Arrears is Incorrect

by Stephen Bilkis

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted those branches of the plaintiff former wife’s motion which were for awards of child support arrears and counsel fees, and from a money judgment of the same court, which is in favor of the plaintiff and against him.

A New York Custody Lawyer said the appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the money judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment.

A Westchester County Family Lawyer said contrary to the Supreme Court’s determination that a plenary action was necessary to enforce the parties’ stipulation of settlement incorporated but not merged into the judgment of divorce, the plaintiff’s post-judgment motion was a proper vehicle to ascertain the defendant’s child support arrears, if any, that have accrued under that judgment of divorce. The Court also disagree with the Supreme Court’s conclusion that an order determining the defendant’s arrears, modified the child support provisions of the parties’ stipulation of settlement incorporated into the judgment of divorce, or set a new recurring amount of child support that the defendant was required to pay going forward.

Published on: July 11, 2014

Appellant Files for Child Support Order

by Stephen Bilkis

A New York Family Lawyer child support proceedings pursuant to Family Court Act article 4, appellant appeals from (1) an order of the Family Court, Nassau County, which, inter alia, directed him to pay child support arrears in the amount of $5,000 and continued a prior order, obligating him to pay child support in the amount of $800 per month, (2) an order of the same court, which committed him to the Nassau County Correctional Facility for a period of six months for his wilful violation of the order, and denied him the opportunity to purge his sentence, (3) an order of the same court, which denied his motion to stay all proceedings before the Support Magistrate pending a ruling on his motion to disqualify the Support Magistrate, (4) an order of the same court, which denied his motion, among other things, for leave to reargue his motion, inter alia, to expunge his record of incarceration and to impose a sanction on the attorney for the petitioner, which was denied in a prior order of the same court, (5) stated portions of an order of the same court, which denied those branches of his motion, among other things, which were, in effect, to transfer the matter from the Family Court, Nassau County, to the Supreme Court, Nassau County, and for the recusal of the Judge, and (6) an order of the same court which denied his motion to hold nonparty in contempt of court for failure to comply with a subpoena.

A New York Child Custody Lawyer said that the appellant contends that the Family Court erred in adjudicating him in contempt of court and in directing that he be incarcerated for a period of six months. The appellant’s contentions are without merit. This issue is not rendered academic by reason of the appellant’s subsequent payment of all child support arrears, which resulted in his release. To the extent that a case may be construed as holding otherwise, it should not be followed. Specifically, the appellant never challenged the amount of arrears owed or the validity of the underlying child support order. The appellant’s failure to pay child support pursuant to a lawful order constituted prima facie evidence of a wilful violation.

The appeal from so much of the order, as determined that there would be no opportunity for the appellant to purge himself of the contempt must be dismissed as academic in light of the appellant’s concession that he was, in fact, released from jail approximately one week after his incarceration, upon full payment of the child support arrears.

Published on: May 17, 2014

Court Determines Whether Personal Injury Case States Cause of Action Against Defendant Parents

by Stephen Bilkis

A New York Family Lawyer said that on or about September 27, 2008 at about 2:30 a.m, plaintiff was a rear seat passenger in a vehicle operated by defendant driver and owned by his mother, and her husband, sustained injuries when defendant driver lost control of his vehicle and struck a tree head on. A Nassau Order of Protection Lawyer said that, at the time of the accident, only possessed a junior’s driver’s license. Prior to the accident, between the hours of 8:30 p.m. and 10:30 p.m., defendant driver and plaintiff were a guests at a party held in the home of defendant, located in Port Washington, New York, and hosted by teen-aged defendant and her daughter. Defendant was at her place of employment in New York City and was not on site during the party. All guests were under the age of twenty-one (21) and alcohol and drugs were consumed on the premises. Defendant driver is alleged to have consumed alcohol and drugs at the party and to have left the party in an intoxicated and/or impaired state. Plaintiff has admitted during his pre-trial deposition, that he consumed drugs and alcohol during the hours preceding the accident. Defendant driver is alleged to have operated his vehicle while under the influence of controlled substances and the subject accident was a direct consequence.

A New York Child Custody Lawyer said that, plaintiff and his mother, “plaintiffs”, commenced the underlying personal injury action against all defendants on or about December 9, 2008. The plaintiffs allege liability against defendant driver under the theory of negligence and against his parents, vicarious liability as owners of the vehicle. In addition they plead causes of action against his parents in negligence per se, and negligent entrustment of a vehicle. The plaintiffs also allege that plaintiff victim sustained a serious injury pursuant to the no fault statutory provisions. The defendants set forth five affirmative defenses in its answer: Plaintiff’s damages were caused by his culpable conduct; the complaint failed to state a cause of action; he failed to use or misused his seatbelt; he did not sustain a serious injury; and he was obligated to mitigate his damages and he failed to do so.

A Nassau Child Custody Lawyer said that, upon the plaintiffs’ motion on or about May, 2009, this Court granted summary judgment as to the first cause of action against the defendants, while denying the defendants’ motion for an Order consolidating the three pending related causes of action against them, instead joining the three actions for a joint trial. The plaintiffs then moved this Court on or about December 21, 2009 pursuant to CPLR 3212, for an Order granting Summary Judgment as to the second cause of action alleging that plaintiff sustained a serious injury, and for an Order pursuant to CPLR 3211 dismissing the defendants’ first, second, third, and fifth affirmative defenses. The Court granted the plaintiff’s motion as to the first, second and third affirmative defenses while reserving its decision on the fifth pending completion of discovery. The defendants’ concession that plaintiff sustained a serious injury, obviated striking of the fourth affirmative defense.

Published on: May 15, 2014

Mother Petitions Court to Hold Spouse in Contempt of Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered March 16, 1998, the father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County, dated December 14, 2007, which, inter alia, after a hearing, granted the mother’s motion to hold him in contempt for failure to comply with a prior order of the same court, dated July 19, 2006, and committed him to a term of incarceration for a period of 30 days unless he purged himself of his contempt by paying the sum of $25,000 to the mother, and granted the mother’s separate motion for an upward modification of his child support obligation from the sum of $2,058 per month to the sum of $3,535.50 per month, and for an award of 50% of certain educational expenses for the parties’ two younger children.

A New York Child Custody Lawyer said that, the parties were divorced in 1998, and has four children. The instant appeal is from an order which granted the mother’s motion to hold the father in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and granted her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

A Westchester County Family Lawyer said the issue in this case is whether the mother’s motion that the father be placed in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and to grant her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

Published on: May 6, 2014

Wife Appeals Judgment Regarding Spousal Support

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered April 10, 1989, the defendant former wife appeals from (1) stated portions of an order of the Supreme Court, Nassau County, entered May 7, 1996, which, after a hearing, inter alia, reduced the plaintiff former husband’s total child support and maintenance obligation to $300 per week, and (2) so much of a judgment of the same court, entered May 23, 1996, as failed to award her interest on the support arrears.

A New York Custody Lawyer said that, on May 10, 1985, the parties entered into a stipulation of settlement in New York concerning their marital dispute. The stipulation provided for, among other things, maintenance for the respondent and child support for the children, in weekly sums, and for cost-of-living increases. By judgment of the Supreme Court, Nassau County, dated September 5, 1985, the respondent was granted an uncontested separation. The judgment of separation provided that the stipulation would survive and not be merged in the judgment. The judgment directed the petitioner to make specific maintenance and child support payments. Further, by order dated March 5, 1993, the judgment of separation was amended nunc pro tunc to incorporate by reference all of the terms of the stipulation.

A Westchester County Family Lawyer said that, by judgment entered October 25, 1988, the petitioner was granted a bilateral uncontested divorce by the Superior Court of New Jersey, Middlesex County. The judgment of divorce makes no provision for maintenance or child support, nor does it refer to the parties’ stipulation in New York which dealt with these economic issues.

Published on: May 4, 2014

Dept. of Social Services Files Case Regarding Abuse of Child

by Stephen Bilkis

A New York Family Lawyer said that, on July 11, 1984, the subject child born June 1, 1984, was removed from the care of her parents, and placed in foster care by the Nassau County Department of Social Services, pursuant to Family Court Act § 1024. On July 12, 1984, the Department of Social Services filed a neglect petition under docket N-250-84, alleging that Cassandra is a neglected child as defined by § 1012 of the Family Court Act, in that: On or about July 10, 1984, respondent-father beat said child’s half sibling, to a degree that it caused said half sibling death on July 11, 1984. Respondent-father beat said half sibling with such force and effect to cause said half sibling to hemorrhage into his abdomen which was a result of lacerations of the mesentery, with a rupture of the small bowel. In addition, said half sibling had multiple rib fractures on both sides. Respondent-mother was present while said half sibling was being beaten and failed to take any steps whatsoever to prevent it from happening or continuing. It is most likely that said child will be treated in a similar manner.

A New York Child Custody Lawyer said that, by order of this Court, dated July 18, 1984, temporary physical custody of the subject child was placed in the Department of Social Services. By amended temporary order of October 26, 1984, temporary physical custody was continued in the Department of Social Services, with visitation for the parents to be arranged by the Department. On March 28, 1985, the Court ordered the Department of Social Services to arrange visitation for the respondents with Cassandra for one hour each week in the Nassau County Correctional Center. There was a final disposition of the neglect petition. On that date the Court, on consent, adjudged the subject child to be an abused child within the meaning of Article 10 of the Family Court Act, based on the conviction of Eleanor C of Criminally Negligent Homicide in the County Court and ordered that she be placed in the full custody of the Nassau County Department of Social Services for a period of eighteen months, with visitation to the mother arranged by the Department at the Nassau County Correction Center or any other place of confinement. The order further provided that the mother may make application for full custody of the subject child upon her release. On March 18, 1986, there was a final disposition of the neglect petition. The respondent-father waived a dispositional hearing and shared custody of the subject child was placed in the Department of Social Services for a period of eighteen months.

A Westchester County Family Lawyer said that, shortly after the emergency removal and the commencement of the above-mentioned neglect proceeding, the subject child’s paternal grandmother, filed a petition, and dated July 27, 1984, seeking full custody of the subject child. The petitioner testified on her own behalf and called a psychiatrist, and Senior Consulting Psychiatrist, Nassau County Department of Mental Health, as witnesses. A home study of the family, conducted by the Department of Social Services of New Brunswick, Canada, was received in evidence as Petitioner’s Exhibit I. The mental health evaluation made by the psychiatrist pursuant to the stipulation executed by the parties and their respective attorneys was received in evidence as Petitioner’s Exhibit II and a report of interviews with the family conducted by him was placed in evidence as Petitioner’s Exhibit III.

Published on: May 1, 2014

Court Decides on on New Job for Family Court Hearing

by Stephen Bilkis

A New York Family Lawyer said that, in a custody proceeding pursuant to Family Court Act article 6, and a related habeas corpus proceeding, the attorney for the children appeals (1), by permission, from an order of the Family Court, Kings County, dated May 3, 2010, which, without a hearing, awarded temporary child custody of the children to the father until March 14, 2011, and (2) from an order of the same court dated May 21, 2010, which sustained the father’s petition for a writ of habeas corpus and directed the mother to return the children to the father. By decision and order on motion of this Court dated July 12, 2010, enforcement of the orders was stayed pending the hearing and determination of the appeals.

A New York Child Custody Lawyer said that, this case involves a custody dispute between the father of the subject children, who are teenagers, and their adult sister, who had custody of the subject children, based upon an agreement with the mother, which was later revoked.

The issue in this case is whether the court erred in granting custody to the father.

Published on: April 16, 2014

Paternal Aunt Seeks Custody of Children

by Stephen Bilkis

A New York Family Lawyer said that, on September 22, 1965 the parents of the foster children at bar, who are minors under the age of fourteen years, died in Jacksonville, Florida, where the parents and children had been domiciled. On September 25, 1965, petitioner herein, who is the children’s paternal aunt, together with her mother, who is the paternal grandmother, left Florida with the children for her home in Nassau County where they have since resided. Petitioner, who resides with her mother, had left her home in Nassau County for Florida on September 23, 1965 because of the sudden deaths of the children’s parents. Upon arriving in Jacksonville, petitioner had met with the objectants, the children’s maternal grandparents, who had been summoned from their home in Columbus, Georgia. Objectant mistakenly relying upon an improperly executed will signed by her daughter who had attempted to appoint petitioner the children’s testamentary guardian, on September 24, 1965 told petitioner, in substance, that petitioner would have shared custody of the children. On the same day, petitioner and her mother advised a judge of the County Judges’ Court for Duval County, Florida, in which Jacksonville is located, that they intended to take the children to their home in New York. The judge stated that, because no one else claimed custody of the children, he did not detect any objection to petitioner’s plan. We indicate the nature of the initial acquisition of the physical custody of the children by petitioner and her mother in order to emphasize that their conduct therein was not tainted by any unlawful or duplicitous act.

A New York Custody Lawyer said that, on December 1, 1965 objectants, still domiciliaries of Georgia, filed a petition in the county Judges’ Court for Duval County, Florida, seeking physical custody of the children. On January 24, 1966 petitioner filed the adoption petitions at bar in the Surrogate’s Court, Nassau County. On February 11, 1966 petitioner and others filed an answer in the Florida court objecting to the petition therein on the ground, Inter alia, that the adoption proceeding herein was pending before the Surrogate’s Court. On April 4, 1966 objectants filed their objections to the petitions at bar and, on April 28, 1966 a hearing was held thereon in the Surrogate’s Court. On May 4, 1966 the Florida court made an order granting custody to objectant during the Christmas and summer vacations from school and to petitioner during the remainder of the year and appointing petitioner and said objectant joint guardians of the persons of the children. However, on June 23, 1966 the decree now under review was made, dismissing the objections to and granting the adoption petitions at bar.

A Westchester County Family Lawyer said that, the objectants argue that (1) the Federal Constitution requires that full faith and credit be given to the Florida order with respect to its provisions concerning full custody and guardianship and (2) the adoption is void because the consent of a person or authorized agency having lawful custody of the children had not been obtained. At the time of the entry of the adoption decree, petitioner, as the children’s paternal aunt, did not have their lawful custody, as that custody is defined by section 109, subdivision 6, of the Domestic Relations Law, for she neither was their natural guardian nor had she been appointed their guardian by a New York court.

Published on: April 8, 2014

ACS Files Suit Against Mother AllegingEducational and Medical Neglect

by Stephen Bilkis

A New York Family Lawyer said that, ACS filed a petition against respondent mother alleging educational and medical neglect as well as a failure to comply with April 2004 and August 2004 referrals to the Family Preservation Program. Specifically, the petition alleged that from July 2004 until the filing of the petition, respondent mother failed to ensure that the child attended weekly psychiatric appointments and received prescribed medication although he had been hospitalized and diagnosed with “impulse control disorder and conduct disorder.” In addition, the petition alleged that the child missed 45 days of school during the 2003-2004 school year and that respondent mother never signed the necessary paperwork for the child to see a paraprofessional to assist him with his homework although a referral had been made by the child’s guidance counselor. A fact-finding hearing was conducted over the course of 14 months during seven court dates beginning on November 28, 2005 and ending on January 25, 2007. At the conclusion of the hearing, the Judge dismissed the petition with prejudice.

A New York Custody Lawyer said that, eight months later, ACS filed the instant petition against respondent mother alleging among other things educational and medical neglect as well as a failure to comply with referrals for services. The first paragraph in the petition alleges that respondent mother suffers from a personality disorder and that she has refused to undergo a mental health evaluation. The second paragraph in the petition alleges that respondent mother failed to ensure that the child Jeffery attends weekly psychiatric appointments and receives prescribed medication although he has been diagnosed with “attention deficit disorder.” The third paragraph in the petition alleges that the child’s whereabouts are unknown although respondent mother indicated that he was residing in Florida with an older sibling and he was observed in New York in July 2007. The fourth paragraph in the petition alleges that Jeffery missed 65 days of school during the Fall 2005 semester, 77 days of school during the Spring 2006 semester, 69 days of school during the Fall 2006 semester and 24 days of school during the Spring 2007 semester. The fifth paragraph in the petition alleges that respondent mother failed to have a dog removed from her home although the dog bit two children in May 2005, as well as Jeffery in August 2007 and that he required medical attention as a result. The sixth paragraph in the petition alleges that respondent mother refused offers for preventative services and family counseling, that she has inadequate food in the home and that she lacks a reliable means of support.

A Westchester County Family Lawyer said the issue in this case in this pre-fact-finding Family Court Act article 10 proceeding is whether to grant respondent mother’s motion to dismiss specified allegations in the petition filed by the Administration for Children’s Services based on res judicata, failure to state a cause of action and a defense established by documentary evidence.