Manhattan

Published on: November 1, 2015

Wife Seeks Money From Defendant for Back Child Support

by Stephen Bilkis

In this plenary action in contract brought by a wife who seeks a money judgment for arrears in support payments due her under a separation agreement, the overriding issue is the proper interpretation of a provision of the agreement. Section 23 of the agreement specifically declares that the agreement is to survive any subsequent divorce decree obtained by either party, and it further provides that although the custody, spousal support and maintenance provisions of the separation agreement may be incorporated by reference into such a divorce decree, they are not to be merged within it. Some time following the separation, the husband obtained a bilateral Mexican divorce decree which incorporated those sections of the separation agreement but specifically declared that they were to survive the decree. Eventually, the wife deemed it necessary to seek an order of support in Family Court, Nassau County, for the $200 per week support and maintenance provided in the divorce decree pursuant to the terms of the separation agreement (see Family Ct. Act, § 422, subd. (b); § 461, subd. (b); § 466, subd. (c)). The husband countered with a request that the amount of support and maintenance be decreased, and, following issuance of several orders not pertinent to this appeal, Family Court ultimately decreased the amount of support and maintenance awarded by the divorce decree to $95 a week and issued a support order for that amount.

The wife then commenced this action in Supreme Court, Nassau County, seeking a money judgment in the amount of the difference between the support and maintenance payments established by the separation agreement and the reduced amount provided by the Family Court order. In response, the husband contended that pursuant to section 24 of the separation agreement, the modification by Family Court of the amount of support and maintenance due under the divorce decree served also as a modification of the separation agreement provisions pertaining to support and maintenance. Following a nonjury trial, Supreme Court ruled in favor of the husband, concluding that pursuant to section 24 of the separation agreement, the modification of the divorce decree by Family Court did in fact cause a similar modification of the separation agreement.

Published on: October 4, 2015

ASC Brings Action Against Mother for Severe Abuse

by Stephen Bilkis

On June 20, 2011, the Administration for Children’s Services (ACS) filed a petition against respondent mother alleging that she derivatively severely abused the subject child by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child’s five-year-old sibling Jamar resulting in his death.

The subject child under the age of eighteen whose parent subjected the child to reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law:

Published on: July 18, 2015

Court Listens to Two Related Cases Pursuant to Social Services Law 384b

by Stephen Bilkis

The two cases below are about family law and proceedings.

The first case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Published on: July 10, 2015

Petitioner Seeks Reimbursement of Social Assistance Left

by Stephen Bilkis

Mrs. GR, together with her disabled husband and six minor children, are clients of the Nassau County Department of Social Services. Around July 31, 1969, Mrs. GR, who had just cashed her public assistance check, was concededly robbed of the proceeds of that check, leaving her totally without funds for the month of August. Apparently, she requested emergency assistance from the Department, but this request was denied. She thereupon brought this Article 78 proceeding that the Commissioner of the Nassau County Department of Social Services (hereinafter the ‘Commissioner’) be directed to pay her $484, the amount of her monthly assistance check.

After service of the petition upon him, the Commissioner served a Third-party petition upon George K. Wyman, as Commissioner of the Department of Social Services of the State of New York seeking a direction that Commissioner Wyman reimburse him for any funds he was directed to pay to Mrs. GR.

Published on: July 4, 2015

Court Discusses the Issue of Equitable Estoppel in Paternity Proceeding

by Stephen Bilkis

The case before the Court was referred by the Support Magistrate on the issue of equitable estoppel in this paternity proceeding. The petitioner began a child support proceeding pursuant to the Uniform Interstate Family Support Act (UIFSA) as she resides in Oregon, and the respondent resides here in Nassau County.

The respondent requested genetic testing for the purpose of denying paternity. A law guardian was assigned to represent the child. The law guardian has moved to have respondent equitably estopped from denying paternity.

Published on: May 4, 2015

Court Discusses Outcome of Juvenile Hearing

by Stephen Bilkis

The respondent has moved to vacate this Court’s order dated February 21, 2007 which, upon his consent, extends his placement with the New York State Office of Children and Family Services (“OCFS”) as a juvenile delinquent for twelve months and directs that OCFS continue respondent’s present placement with L & W, an authorized agency within the meaning of Social Services Law §371 (10).

In support of the motion to vacate the Court’s order extending his placement with OCFS for L & W, respondent contends that: (i) the Family Court was without jurisdiction to extend placement; (ii) the proceedings were defective in that the Court did not have the authority to reconvert the proceeding from a Person in Need of Supervision (“PINS”) proceeding to a juvenile delinquency proceeding; and (iii) even assuming that the Court had jurisdiction to extend placement with OCFS that placement could not be extended beyond his 18th birthday without his consent.

Published on: March 16, 2015

Court Discusses Mother’s Liability for Counsel Fees

by Stephen Bilkis

On May 19, 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties’ children. By Mexican decree dated May 31, 1969, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

On January 21, 1977, defendant’s former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant’s children. By order of the Family Court, an increase in support payments on behalf of the child was directed and denied relief to the child, suggesting that he would have to bring a proceeding on his own against his father since he had attained the age of 18 years.

The plaintiff was retained to represent him in connection with a petition for support under Article 4 of the Family Court Act. Thereafter, the Honorable Judge of the Family Court, Nassau County, rendered a decision granting the child an order of support in which he was awarded $30 per week in support. The aforesaid order denied plaintiff counsel fees in connection with the Family Court proceeding on the ground that the Court had no authority to grant said fees. The Court held “The petitioner is attending college on a full-time basis and is not an emancipated child and the mother is employed but her income is insufficient to meet the needs of herself, her daughter and son she is not in a financial position to provide support or any portion of the support required by her son. Plaintiff then commenced this action seeking counsel fees from the defendant based upon the fact that the legal services rendered to the son were necessaries for which the father was liable.

Published on: September 28, 2014

Father Seeks to Restrain Mother from Relocating Children

by Stephen Bilkis

A New York Family Lawyer said in the matter before the Court concerns child custody of two children. The children are the biological children of the divorced parties herein. The current proceedings were commenced when the father filed petitions pursuant to Article 6 of the Family Court Act (FCA) in Albany County Family Court seeking child custody or, in the alternative, to restrain the mother from relocating with the children. After the mother relocated with the children to South Carolina, The Albany County Family Court issued an order granting the father temporary child custody of the children. The father went to South Carolina to obtain physical child custody of the children and then immediately relocated to Nassau County, New York. The Albany Family Court matter was thereafter transferred to this Court. The mother also filed her own petitions seeking child custody.

A New York Divorce Lawyer said that pursuant to a stipulation and Judgment of Divorce, the parties were divorced in 2004. As per the terms of their stipulation, the parties had joint legal child custody of the children with the mother having physical child custody and the father having certain rights of parenting time. At the time of the divorce, the parties were living in the Albany, New York area, having relocated together from Long Island. Immediately after the divorce was finalized, the parties continued to live together for financial reasons, but eventually moved into separate apartments in the Albany area, with the children living with the mother.

A New York City Family Lawyer said the father exercised his parenting rights during this time, though the extent to which he did so is in dispute. The mother met her current husband, a resident of South Carolina, in an online chat room and began a long distance relationship which resulted in one of them traveling once every few months to see the other. At other times they would both travel and meet somewhere in the middle. At some point during 2005 the mother had a hysterectomy which she blamed for causing her to lose her job. The loss of her job, and the father’s alleged failure to provide regular child support, placed her in dire financial straits which she believed could only be remedied by a relocation to South Carolina where, aside from the new husband, her mother and sister resided.

Published on: September 23, 2014

Court Decides of Petition for Relocation Should be Granted

by Stephen Bilkis

A New York Family Lawyer said that, the petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

A New York Divorce Lawyer said that, on April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, Andrew Smith, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

A New York City Family Lawyer said that, on June 5, 2003, the Court ordered that the parties submit to an investigation and report with the Nassau County Probation Department, Family Division. The Court also ordered that Ms. Susan Silverstein, forensic evaluator, prepare a report. On June 30, 2003, the respondent filed an order to show cause with this Court, requesting that the petitioner be enjoined from relocating the children from her residence or, alternatively, why the respondent should not be given custody of the children. A temporary order was made thereafter, dated August 28, 2003, which restrained the petitioner from leaving the jurisdiction of this Court with the Jones children until the time of hearing. The petitioner made arrangements for Joe and Ann to remain in the same school district in Nassau County for the start of the 2003-2004 school year by residing with their maternal grandmother.

Published on: September 19, 2014

Court Decides if Memorandum Issued by Probation Board is Valid

by Stephen Bilkis

A New York Family Lawyer said that, this distressing turn of events came to the attention of the court following a memorandum dated January 30, 1989 to the Probation Directors throughout the entire state from the counsel to the New York State Department of Probation and Correctional Alternatives. The memorandum sets forth a restricted procedure relating to adoption matters where the court is placed in the untenable position of designating the Probation Department as the agent of the court. This cumbersome procedure restricts Probation to a convoluted means of criminal investigative inquiry only by U.S. mail to the DCJS, and the reply by U.S. mail and not via NYSPIN; notwithstanding statutory and court rules requiring adoption investigations to be completed within thirty (30) days.

A New York Divorce Lawyer said that, the situation relating to custody matters is even more ludicrous. Since January 30, 1989, the Probation Departments may no longer access criminal history information under any circumstances in custody cases. The only alternative is the outrageous and unacceptable proposed procedure that the onus should be placed upon the court in each and every instance to issue court-ordered subpoenas directed to the DCJS to produce the report directly to the court. Thus, the clear inference of this proposed procedure amongst the various agencies would be that this report should be for the eyes of the court only, and not Probation. However, even if the procedure would allow for the court to make it available to Probation, it would be a protracted and ineffective procedure which would undermine the effectiveness of the Probation report, and impede their statutory obligation to conduct a full and complete probation investigation. Furthermore, it is not a proper function of the court to, in effect, become part of the investigative process and, in so doing, to even create the possible perception that the court is acting unfairly or prejudicial to either of the parties.

A New York Divorce Lawyer said that, apparently the Probation Department exhausted their persuasive efforts to resolve this dilemma by making further requests through the Division of State Police, as well as the Department of Justice in Washington, D.C., all to no avail. Thus, on February 8, 1989, a directive was issued by the Nassau County Probation Department that, inasmuch as they were being denied necessary access to criminal history of the parties via NYSPIN, their staff was directed not to make recommendations to the court in custody cases.