New York City

Published on: February 23, 2013

Court Discusses Whether Plaintiff Sufficiently Stated a Cause of Action

by Stephen Bilkis

Prior to the incident, infant plaintiff’s father was known to the defendant’s police officers at the 43rd Precinct, having previously been arrested by them approximately six times for drunkenness, abusive and physical assault upon his family. In July, 1975 he assaulted his wife with a knife, inflicting lacerations which required suturing at the Hospital; a New York Family Lawyer said that she thereafter brought a divorce action, which resulted in further violence by the infant plaintiff’s father and threats by him that he would kill her and the children if she proceeded with the divorce action. A Bronx Order of Protection Lawyer said that, the infant’s mother thereupon went into the Family Court where, she obtained a preliminary order of protection against her husband; thereafter, the order was finalized for one year and, over her strenuous objections, was amended to grant to the father visitation with the infant plaintiff from 10:00 A.M. on Saturdays to 6:00 P.M. on Sundays. After the parties left the courtroom the father attempted to assault his wife and he had to be restrained by a court officer. The Family Court judge was informed of the incident and thereupon directed the court officer to get him out of the building; however, the judge did not rescind his week-end visitation with the infant.

A Bronx Order of Protection Lawyer said that, in accordance with the provisions of the Family Court Act, a “Certificate of Order of Protection” was duly issued to the infant’s mother by the clerk of that court on November 6, 1975 certifying that an Order of Protection had been issued to her, pursuant to which the infant’s father was forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward petitioner and he is to remain away from the home of said petitioner.”

A New York Custody Lawyer said two days later, the infant’s mother took the infant to the 43rd Precinct to accord the infant’s father his week-end visitation. He took the infant and, as he was walking away, he made a death threat against his wife, and the infant, and he indicated to his wife that before the week-end was up she would be making “the sign of the cross” which to them meant that there would be a death. The mother immediately went into the precinct and told the desk officer of the death threats to herself and the infant; she showed the desk officer the Certificate of Order of Protection; she advised him of her fears and told him that she was frightened for the safety of her child and herself and that the Order of Protection protected her from such threats and she requested the police to take her husband into custody for violating said order. However, the police refused to do anything whatsoever. The infant’s father failed to return the infant at 6:00 P.M., as required by the Order of Protection. The mother again went into the station house and she again spoke to the police officer and the lieutenant she again demanded that the police arrest her husband for violating the order and protect the infant; once again the police refused to do anything whatsoever and told her to wait a couple of hours and that “perhaps” the father had taken the infant to a movie. Thereafter, the infant father’s sister entered his apartment. She found him lying on the floor with an empty whiskey bottle and an empty pill bottle lying beside him. She also found the infant, who had been viciously attacked, mutilated and severely injured by her father and she telephoned the police. The father had attacked the infant at about 7:00 P.M. with a fork, a knife and screwdriver; he had attempted to saw her leg off with a saw; she had been slashed from head to toe and she had sustained severe multiple internal injuries. Minutes later police officers from the same 43rd Precinct arrived and they rushed the infant to the Hospital in their police car, without waiting for an ambulance; the infant was immediately taken into surgery and she was operated. The infant was in a coma for several days and she remained in a critical condition for approximately three weeks and was hospitalized until December 19, 1975 she remains severely and permanently disabled. The father was arrested after the attack on the infant and he was thereafter indicted by the Grand Jury, tried and found guilty of attempted murder of the infant and he is now serving a jail sentence for the crime.

Published on: February 21, 2013

Court Decides Visitation Rights of Incarcerated Parents

by Stephen Bilkis

The children in question were placed in petitioner’s foster care. A New York Family Lawyer said the birth mother’s drug use was the catalyst for the placement. Her whereabouts are unknown and she was not present at any of the Family Court proceedings. Respondent is the father of the children. At the time of the children’s placement, he was incarcerated in state prison on a murder conviction and will remain incarcerated until at least May 2016. By that time, both children will have passed their 18th birthdays. In early August 2000, an agency case worker took the children to visit respondent in prison.

A Bronx Child Custody Lawyer said that, according to the agency worker this was the only visit respondent had with the children prior to the agency’s filing of separate petitions seeking the termination of his parental rights. These petitions alleged that respondent had evinced intent to forgo those rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and had therefore abandoned them. She testified that she contacted respondent through prison channels after the aforementioned visit, but he never responded or contacted her. Some of the letters she sent to him were returned to the agency but she did not produce at the hearing copies of any of the letters she claimed to have sent. She testified that respondent provided no financial support for the children did not maintain contact with them, did not send cards, letters or gifts and that no one contacted the agency on his behalf before the petitions were filed. She maintained that the agency did nothing to prevent or discourage respondent from coming forward, nor were there any other obstacles that might have prevented him from contacting the agency.

A New York Custody Lawyer said that, on cross-examination, however, the agency worker testified that before the petitions were filed, she telephonically spoke with a family service specialist from the Osborne Association who had contacted her on respondent’s behalf regarding the children. The Association facilitates family visits for prisoners incarcerated in New York correctional facilities. She gave the specialist the children’s foster parents’ names and addresses, as well as a letter acknowledging that the agency was in agreement with the Association’s scheduling a visit between the children and respondent in August 2004. She stated that the first time she personally met with the specialist was during that month. Upon questioning by the court, she admitted that she did not send any letters to respondent between February and August 2004 to notify him of any conferences, and did not make any other attempt to contact him during that six-month period. She never asked her supervisor if she could contact respondent directly, either orally or in writing, but stated that she would have had no problem with such direct communication had she known it was permitted.

Published on: February 19, 2013

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

The natural parents, never married but lived together from 1967 to 1974, during which time three children were born. In August 1974, after many earlier criminal convictions, the natural father was convicted on drug charges and sentenced to prison for a two-year-to life sentence.A New York Family Lawyer said in 1975 the natural mother voluntarily placed the second born child, who suffers from severe physical and mental handicaps, in temporary foster care. The mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the Commissioner of Social Services custody for 18 months. A Bronx Child Custody Lawyer said that, during his entire imprisonment the natural father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the natural mother. Only after the agency, through its own diligent efforts, located him in a Correctional Facility in August 1977, did the natural father learned of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek custody or visitation. The three children, meanwhile, had lived in separate foster homes and facilities until summer 1977. The foster parents, had asked the agency for a handicapped child to adopt in 1976. A New York Custody Lawyer said after she had been placed in their home for some two months, the foster parents’ requested that the two other children join her; the children were reunited in September 1977 for the first time since 1975.

A Bronx Child Custody Lawyer said that the agency denied the natural father’s requests for custody or visitation, and he began legal proceedings to protect his rights. On December 1, 1977 he was adjudicated the legal father, and, by agreement among counsel he had two visits with the children, the first in December 1977 and the second in February 1978. Only the oldest child had any recollection of her natural father, having been only one year old when he was imprisoned, and the handicapped child being mentally incapacitated. When these proceedings came to trial the natural father was unemployed, on parole, and living on public assistance with a woman he had known less than a year, who was expecting his child in December 1978. A New York Custody Lawyer said the foster parents live with the three children in a three-bedroom suburban garden apartment. The foster father is employed as a maintenance man; foster mother is a full-time housewife.

A Nassau County Family Lawyer said that the New York Hospital filed a petition pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of custody and guardianship to NYFH; a petition was also filed by the Commissioner of Social Services (“CSS”) pursuant to Family Court Act (“FCA”) Section 1055 seeking an extension of this court’s original placement order entered in the course of a prior Article Ten neglect proceeding; and a petition in the form of a writ of habeas corpus filed by the natural father seeking return of the children to his custody.

Published on: February 18, 2013

Children Placed in Foster Care

by Stephen Bilkis

A woman who was high on drugs found herself married to a man she hardly knew. She never lived with that man she married and she never even had sexual relations with him to her knowledge. A New York Family Lawyer he tried to divorce him in the days that followed but she could not locate him so she could not serve him divorce papers.

The woman later cleaned herself up and stopped taking drugs. By that time, she met another man with whom she fell in love. They lived together as husband and wife without the benefit of a marriage. With this man, she had two children. A New York Custody Lawyer said in the children’s birth certificates, the man was listed as their father and the children used his surname. The children received pediatric care and in the medical records with the children’s pediatrician, the man was indicated as their father. The man was also listed as the children’s next of kin in case of emergency. The father listed the children as his beneficiaries and dependents. He fully supported them with the salary he earned as a construction worker.

The real father of the children (the man who was not the legal husband of the children’s mother) was imprisoned several times during the infancy of the children but he was imprisoned for only short terms of six months. In 1998, he was imprisoned with a term of five years. During his incarceration, he still tried to support the woman and his children with her with earnings as an inmate. He asked his sister to visit the children for him when he couldn’t reach them by telephone because the telephone service at their apartment had been cut off. Months later, the sister of the imprisoned father could no longer find the children or the mother.

Published on: January 28, 2013

Court Maintains that Modification of Custody Must Benefit the Child

by Stephen Bilkis

On 1 September 2009, a Family Court in Kings County issued an order which, after a hearing, in effect, granted the father’s petition to modify a prior custody order of the same court dated 3 August 2004, so as to award him sole legal and physical custody of the subject child with visitation to the mother; denied the mother’s petition for sole legal and physical custody of the subject child, and denied her application to relocate with the subject child to Newburgh, New York. Thus, a New York Family Lawyer said in related child custody proceedings pursuant to Family Court Act Article 6, the mother appeals from the said order.

The court finds that the order must be affirmed, without costs or disbursements.

Under the rules, a relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child. A New York Custody Lawyer said the best interests of the child are determined by a review of the totality of the circumstances. Deference should be accorded to the credibility determinations of the hearing court, which saw and heard the witnesses, and the hearing court’s determination should not be set aside unless it lacks a sound and substantial basis in the record.

Published on: January 26, 2013

Court Says to Alter Existing Custody Arrangment there Must be a Change of Material Circumstances

by Stephen Bilkis

In a matrimonial action in which the parties were divorced by a judgment, the complainant husband appeals from the decision and filed an instant action for a divorce and ancillary relief against his wife. Prior to the entry of the divorce decision, the husband and wife entered into a duly executed stipulation of settlement, which awarded the wife of their children’s custody. The stipulation was incorporated but not merged in the decision of divorce. A New York Family Lawyer said the following to the execution of the stipulation and the entry of the decision, the wife moved to enforce certain terms of the stipulation. Thereafter, the husband sought to transfer the custody of the two minor children to him or to increase his visitation and to suspend or reduce his agreed-upon child support payments.

The court correctly determined that there must be no change of custody of the parties’ two children. Consequently, the court properly refused to transfer custody to the father, or increase his visitation. The mother’s position with regard to visitation did not raise to the level of active interference with or deliberate frustration of the husband’s visitation rights. In addition, the court also examined the husband’s remaining contentions and find that they lack merit.

In another trial, another father also filed an appeal from an order of the family court. The complainant father sought a modification of a decision to permit him to have visitation with his daughter. Based on records, a New York Custody Lawyer said to warrant modification of an order fixing visitation, there must be a change of circumstances, and the change must be material

Published on: January 24, 2013

Responded Taken into Custody Child Removed from Home

by Stephen Bilkis

Respondent is the mother of the two subject children, a boy and a girl. Respondent also has an older daughter, currently a third year student, visits the home on some weekends and during school vacations.

A New York Custody Lawyer said that in February 2008, respondent was arrested and the children services removed the son and the daughter from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. On February 15 2008, the children services filed petitions against respondent in Kings County Family Court. The petitions allege that the mother neglected the child, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, on that day, NYPD responded to a 911 call made from a business near the case address after the son left the home because his mother beat him with a belt. The petitions further allege that the son reported that the beating took place after his mother learned that he had failed a number of classes. When the son tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. The son also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that the daughter is a derivatively neglected child by virtue of the neglect of the son.

On the day the petitions were filed, the judge granted the request of the children services for a removal of the children and temporarily released them to their maternal aunt. The judge entered a temporary order of protection against respondent on behalf of the children directing that she refrain from the use of corporal punishment. A New York Family Lawyer said the Judge also ordered that the mother have liberal supervised visitation at the aunt’s home.

Published on: January 6, 2013

Defendant Contends He Received an Unfair Trial

by Stephen Bilkis

Upon the notice of motion dated July 2, 2010, defendant moves via his attorney for an order pursuant to Criminal Procedure Law (CPL) sections 440.10(1)(H) and 440.20 to vacate the within conviction and to have his sentence therewith set aside. A New York Family Lawyer said defendant argues that his conviction should be vacated and the sentence set aside because of ineffective assistance of counsel, in that, although alibi notice was served and on notice with the court, trial counsel failed to present defendant’s alibi defense and did not call alibi witnesses whose testimony would have exculpated defendant from the within conviction. A hearing on this matter was granted without objection from counsel and held on October 28, 2010. The hearing was continued on December 16, 2010 with oral argument of counsel.

On February 3, 1993 at approximately 8:45 pm at 1033 Broadway in Kings County, the defendant along with three companions was alleged to have robbed four persons inside a pool hall located at that address. A New York Custody Lawyer said the defendant was said to be armed and in the course of the robbery shot two persons one died and the other was wounded, an eyewitness. Eyewitnesses identified the defendant out of a line-up and photo array as one of the people who committed the crimes. Defendant was charged with Murder in the Second Degree, Attempted Murder in the Second Degree, Robbery in the First Degree, and two counts of Criminal Possession of a Weapon.

A Suffolk County Family Lawyer said that, alibi notice had been presented in this matter by defendant’s former Legal Aid attorney which offered the defense that defendant could not have committed the acts he is charged with because at the time of the commission of said crimes defendant was eighteen blocks away at 1217 Jefferson Avenue in Kings County, his family home. Defendant had intended to call the two tenants who live at 1217 Jefferson Avenue. The alibi notice dated April 12, 1993 is addended to defendant’s motion as exhibit A.

Published on: January 5, 2013

Child Perishes Due to Neglect and Abuse

by Stephen Bilkis

CC, born on 1 June 1984, was removed from the care of her parents, A and B, on 11 July 1984 and placed in foster care by the Nassau County Department of Social Services pursuant to Family Court Act § 1024. On 12 July 1984, the Department of Social Services filed a neglect petition alleging that CC is a neglected child as defined by § 1012 of the Family Court Act.

A New York Family Lawyer said on or about 10 July 1984, A beat CC’s half sibling, DD, to a degree that it caused said half sibling death on July 11, 1984. A 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, DD had multiple rib fractures on both sides. B was present while DD was being beaten and failed to take any steps whatsoever to prevent it from happening or continuing. It is most likely that CC will be treated in a similar manner.

By order of this Court, dated 18 July 1984, temporary custody of CC was placed in the Department of Social Services. By amended temporary order of 26 October 1984, temporary custody was continued in the Department of Social Services, with visitation for the parents to be arranged by the Department.

Published on: January 4, 2013

Court Determines Improper Use of Separation Agreement

by Stephen Bilkis

This case is being held in the Supreme Court of the State of New York in Richmond County. The plaintiff of the case is P.B. and the defendant is L.B. The defendant wife has filed a motion for dismissal of the plaintiff’s action for divorce.

Case Background

A New York Family Lawyer said the couple was married in September of 1996. In July of 2005, the parties entered a written agreement of separation. This was filed with the clerk in the Richmond County Court. On the fourteenth page of the separation agreement it states that the husband shall not pursue a divorce against the wife for a period of five years after signing this agreement without the prior written consent of the wife.