New York City

Published on: September 3, 2013

Child Protective Services Claims Mother Incapable of Guardianship

by Stephen Bilkis

In this child protective proceeding, a County Social Services/Child Protective Services, seeks adjudication that the subject child is a neglected child within the meaning of FCA (Family Court Advisory).

A New York Family Lawyer said that by petition, CPS (Child Protective Services) alleges that the mother has placed the child at imminent risk of becoming physically, mentally and emotionally impaired, in that the mother’s seriously impaired mental condition renders her unable to provide adequate guardianship, supervision and care to the child. CPS further alleges that the mother has failed to secure suitable housing for the child.

The mother was served with the summons and petition but did not appear on the first court date. At that time, an order was issued placing the child in the custody of maternal grandmother, and an order of protection was issued restricting the mother’s contact with the child to visitation supervised by the Department of Social Services.

Published on: September 2, 2013

Father Incarcerated for Failure to Pay Child Support

by Stephen Bilkis

In a support proceeding pursuant to Family Court Act article 4, the appeal is from an order of the Family Court, Suffolk County, which directed that the appellant be imprisoned for 48 days. By decision and order, the court dismissed the appeal as academic.

A New York Family Lawyer said that pursuant to the 1985 judgment entered in the parties’ divorce action, the father was obligated to pay $250 a week in child support for their four children, or $62.50 a week per child. In 1989, the father petitioned for a downward modification based on their oldest daughter’s emancipation and because the father then had custody of the parties’ oldest son. The mother petitioned for an increase in support. Following a hearing which was held over a period of almost one year, the Hearing Examiner issued an order, which obligated the father to pay child support of $400 a week for the two children, who remained in the mother’s custody, retroactive to July 1989. Beginning in January1991, daughter’s 21st birthday, the father was required to pay child support of $300 a week for the son. The Hearing Examiner concluded that the testimony of the father, a self-employed certified public accountant, regarding his finances was not credible and imputed income to him of $150,000 a year. A New York Custody Lawyer said that since the order was made retroactive to the date the petition was filed, substantial arrears had accumulated. In an order, the Family Court, Suffolk County denied the father’s objections to the Hearing Examiner’s order.

The father appealed from the order and that appeal was transferred to the Appellate Division, Fourth Department. Later, while the appeal was pending, the mother moved for an order to hold the father in contempt for his failure to pay support pursuant to the order. A Queens Family Lawyer said the father, by cross petition, sought a downward modification of support. The matter was heard by a different Hearing Examiner than the one who issued the order, who concluded that the father failed to comply with the support order, that his noncompliance was willful, and that his testimony as to his finances was incredible. At that point, the arrears totalled over $46,000. In May 1993, the Family Court confirmed the Hearing Examiner’s finding that the father’s failure to comply with the prior order was willful, found him in contempt, and sentenced him to 48 days in jail unless he purged his contempt by paying $24,000 towards the arrears. The father served the period of incarceration and was released in July 1993.

Published on: August 20, 2013

Court Decides if Temporary Order for Protection in Merited

by Stephen Bilkis

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Family Lawyer said that defendant was arrested and charged with Assault in the Third Degree, and with Harrasment, on the complaint of his wife. According to the complaint of Police Officer Graves, corroborated by the wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Custody Lawyer said that at his arraignment, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of protection, effective unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The effect of this Temporary Order of protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.

Published on: August 19, 2013

Court Discusses a Conversion Divorce Proceeding

by Stephen Bilkis

In a divorce action, the plaintiff wife appeals from a judgment of the Supreme Court, Suffolk County, which granted the defendant husband’s counterclaim for a conversion divorce and awarded custody of the parties’ infant children, visitation, child support and occupancy of the marital residence pursuant to the terms of a separation agreement.

Judgment reversed, on the law and as a matter of discretion, without costs or disbursements, and matter remitted to the Supreme Court, Suffolk County, for determination of plaintiff wife’s causes of action for divorce and ancillary issues, and entry of judgment in favor of defendant on his counterclaim for a conversion divorce is stayed pending that determination.

A New York Family Lawyer said that the parties were married in 1969 in Kansas, and thereafter moved to Suffolk County, New York. They have three sons, born in 1969, 1971, and 1975, respectively. In 1982, the parties executed and filed a written separation agreement. The agreement was drawn by use of a “do it yourself” kit, and neither party was represented by counsel. The agreement provided, inter alia, for custody, child support, visitation, a mutual waiver of support, maintenance and alimony, ownership and possession of the marital residence, distribution of personal property, and a mutual waiver of inheritance rights. The agreement further provided that it would be incorporated by reference in any subsequent divorce decree and would survive, not merge in, any such decree.

Published on: August 18, 2013

Court Decides Modification of Child Support Issue

by Stephen Bilkis

In a child support modification proceedings under the Family Court Act, a wife seeks an order of the Court modifying upwards the child support provisions of a December 1973 divorce decree entered between the parties, which provisions were adopted and made part of an enforcement order entered in Court on October 18, 1976.

A New York Family Lawyer said the parties were married in New York in 1958, with eight children being born of the union. By divorce decree, the husband was directed to pay $20.00 per week for each of the eight children, for a total of $160.00 per week. The wife now seeks an increase of the $20.00 per child, per week figure, alleging the increased needs of the children, and the husband’s improved ability to pay.

A New York Custody Lawyer said the t issue is the time from which the required change in circumstances is to be measured. The Court record of the prior proceedings between the parties indicates that orders were made relative to the husband’s support obligation on March 13, 1984, November 16, 1983, May 3, 1982, April 17, 1981, February 4, 1980, November 21, 1978, and October 18, 1976 (the original enforcement order).

Published on: August 17, 2013

Petitioner Accused of Misrepresenting Income

by Stephen Bilkis

A proceeding was commenced pursuant to Criminal Procedure Laws and Rule (CPLR) to review a determination of the respondent Government Agency dated May 15, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency that the petitioner mother had willfully withheld information as to a change in income. A New York Family Lawyer said the determination is annulled, on the law, and the petition granted, without costs or disbursements.

The sole evidence in the record of willful withholding of information is the fact that the petitioner mother received a child support check and failed to report it to the respondent Government Agency. She had made no effort to conceal her child support rights. She executed an assignment of these rights to the Agency and appeared in court to press these rights prior to receipt of the check. Her un-contradicted testimony at the fair hearing was that she thought the check she received was the money remaining after the respondent Agency had taken what it was owed. This does not rise to the level of substantial evidence that she had willfully withheld information as to a change of income.

Moreover, a New York Custody Lawyer said the respondent Government Agency failed to notify the mother adequately of her duty to report changes in income. There was only a general certification signed by the mother at the time of her application for assistance. It did not contain any examples of what constituted changes in income nor is there any evidence that the mother was given verbal examples. Since she had not hidden her eligibility for child support and received the support check subsequent to her assignment of support rights, she had no reason to consider this a change in income.

Published on: August 3, 2013

Father Appeals Child Support and Custody Order

by Stephen Bilkis

In an action, inter alia, for awards of child custody and child support, the plaintiff father appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated October 25, 2007, as, in effect, granted that branch of the defendant mother’s cross motion which was for child support pendente lite to the extent of directing him to pay the defendant mother the sum of $426 per week.

A New York Famiy Lawyer said that, the parties, who were never married to each other, are the parents of two young children. In May 2006 the father filed a petition in the Family Court, Suffolk County seeking custody of the children. The mother cross-petitioned for custody, and additionally petitioned for child support. During the course of the Family Court proceedings, the parties entered into a so-ordered stipulation in which they agreed to temporarily share equal physical custody of the children. After the parties reached their temporary custody agreement, a Family Court Support Magistrate denied the mother’s petition for child support.

A New York Custody Lawyer said that, the Support Magistrate found that the parties had joint residential custody, and deemed the father the noncustodial parent because he had a greater income. However, the Support Magistrate declined to direct the father to pay child support because he was paying his adult daughter the sum of approximately $300 per week to care for the children in his home, and the children thus spent a greater amount of time at his residence.

Published on: July 25, 2013

Petitioner Claims Respondent is in Contempt of Visitation Order

by Stephen Bilkis

Petitioner A and Respondent B, residents of the State of Indiana, separated in July 2000. A seeks custody of C, their sixteen year old child. B moved to Illinois after the separation while A and C and their other children continued to reside in Indiana. A New York Family Lawyer said a divorce action was commenced in Indiana and the parties were divorced in 2001. Their settlement agreement provided custody of the unemancipated children to A and established B’s visitation rights.

A New York Child Custody Lawyer said A and C were granted permission by the Indiana Court to relocate to the State of New York in May 2002. The order directed visitation for B to take place in Illinois so he petitioned for finding of contempt arising out of visitation disputes. The Indiana Court found both parties in contempt but it did not order any change in custody.

By order of the Indiana court dated 25 September 2002, Diane was again found in contempt for failure to comply with B’s visitation rights. However, the Court found that it was not in C’s best interest to move her to Illinois to live with her father. By this time, neither the parties, nor the children, resided in Indiana.

Published on: July 7, 2013

Court Rules on Tragic Death of Infant

by Stephen Bilkis

At shortly after 1:00 a.m., an officer and his partner went to an apartment in response to a radio report of a person in distress. A New York Family Lawyer said outside the building, they were joined by two other police officers. In front of the building, the officers met a woman, who stated that her cousin, had a baby and the baby, who was up in the apartment, had died

A New York Custody Lawyer said the woman led them up to the apartment, where they met the offender’s grandaunt. One of the officers directly moved into a bedroom where he saw the offender resting on one bed and the baby, wrapped in a towel, on the other bed. A garbage bag containing what appeared to be the afterbirth was near the baby’s body. The officer assesses the baby’s pulse and felt nothing. The emergency medical services arrived shortly afterward. Since there was a dead infant, the officer was obliged to contact a detective supervisor, the crime scene unit and the district attorney’s office.

The officer did not ask the offender further questions aside from asking her how she felt. In the investigation, the officer testified that the offender remained in the bedroom from the time of his arrival until she was later taken to the hospital. The officer also asserted that the offender was not restrained in the apartment, was not under arrest and she was not even arrested the following day.

Published on: June 28, 2013

Court Decides of Release of Firearms Appropriate

by Stephen Bilkis

This matter has had a convoluted history and presents a legislative “glitch.” A New York Family Lawyer said that during a contested divorce proceeding, the Family Court issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before the Judge. A New York Custody Lawyer said that, pursuant to the temporary order of protection, the Sheriff’s Department seized 26 guns belonging to the petitioner. Thereafter, on May 2, 2001, the Judge issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, the Judge withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.

Subsequently, Nassau County Family Lawyer said that, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by the Judge.

A Nassau Family Lawyer said that, on December 2, 2002, in compliance with this court’s order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection that the Judge had issued. Although the petition was unopposed, it was dismissed by the said Judge due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed. As a result, the matter was brought before this court by notice of motion for renewal of this court’s previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before the Judge, it was necessary for the court to conduct a hearing. A Nassau County Custody Lawyer said for the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.