New York City

Published on: May 2, 2014

Department of Social Services Files Petition to Remove Child from Home

by Stephen Bilkis

A New York Family Lawyer said that, on or about July 5, 2007, the Nassau County Department of Social Services (hereinafter “DSS”) filed petitions against the respondent, seeking the removal of her two children. On the same date, the respondent filed petitions seeking the return of her sons pursuant to FCA § 1028. A hearing was held and on July 24, 2007 respondent’s return petition was denied and the children remained in the physical custody of DSS.

A New York Child Custody Lawyer said that, the respondent consented to a finding of neglect in the underlying neglect petition. The Order of Custody to DSS was vacated; a one year Order of Supervision was entered and the children were returned to the respondent. The terms of the Order indicated that the respondent was to cooperate with DSS and Preventive Services, and attend the PACT program. Thereafter, the respondent voluntarily placed the children in foster care, as she reported to be suffering from depression at that time. The children were placed in the home of a certified foster parent, where they continue to reside. The first subject child was three years old and the other was ten months old at the time that they were placed in the foster parent’s home.

A Bronx Family Lawyer said that, the respondent gave birth to her third child, Emma P., on October 10, 2008. On February 9, 2009, DSS filed a neglect petition against the respondent, on behalf of this child, in Nassau County. On February 25, 2009 the Administration for Children’s Services (hereinafter “ACS”) additionally filed neglect petitions against the respondent in Queens County where the respondent had been living regarding the same child. The Queens County Court paroled the child to the non-respondent father, with supervision by ACS. Additionally, the Court issued a Temporary Order of Protection, which vacated the respondent from the home, prohibited the respondent from having any contact with the child if under the influence of drugs or alcohol and only allowed for agency supervised visits. Upon consultation with this Court, the case was transferred to Nassau County Family Court on or about April 2, 2009.

Published on: April 30, 2014

Court Rules on Mother’s Motion for Attorney Fees

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding, a father appeals from an order of the court, which denied his objection and granted the mother’s motion for an award of an attorney’s fee.

Subsequently, the court ordered to reverse the previous decision, on the law, without costs or disbursements, so much of the order, as granted the mother’s motion for an award of an attorney’s fee. The matter is also remitted to the family court, for a new determination of the mother’s motion.

A New York Child Custody Lawyer said sources revealed that in a previous related case, the court stated that even if the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless controlled by the equities of the case and the financial circumstances of the parties.

Published on: April 28, 2014

Court Rules on Huntley Hearing

by Stephen Bilkis

It is reasonable for a patient to seek the independent advice of two experts before embarking on a course of treatment. Two experts may evaluate the same data and may arrive at different conclusions. But it is illogical for a patient to seek a second opinion immediately thereafter from the same expert who rendered the first opinion.

A New York Family Lawyer said tht primilarly in the Family Court where the same judge presides at the Huntley Hearing and the fact-finding hearing, it is illogical to re-litigate the same issues determined at the preliminary hearing by requiring that the testimony at the Huntley Hearing be repeated at the fact-finding hearing.

A Staten Island Family Lawyer said that nothing contained in this article, however, precludes a defendant from attempting to establish at a trial that evidence introduced by the people of a pre-trial statement made by him should be disregarded by the jury or other trier of the facts on the ground that such statement was involuntarily. Even though the issue of the admissibility of such evidence was not submitted to the court, or was determined adversely to the defendant upon motion, the defendant may adduce trial evidence and otherwise contend that the statement was involuntarily made. In a case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.

Published on: April 24, 2014

Court Discusses Use of Forensic Evidence in Custody Dispute

by Stephen Bilkis

In this Custody action, the issue involved is of import not only because it appears to lack any precedent, but even more so, because it goes to the very heart of the present and future effectiveness of the forensic and probation referral procedure utilized by the Nassau County Supreme Court as an aid in the determination of contested custody actions.

A New York Family Lawyer said that pursuant to this procedure the court, with the consent of the parties and counsel, ordered a forensic evaluation of the parties and infant issue through the Nassau County Department of Mental Health, Division of Forensic Services, and a probation report through the Probation Department of Nassau County.

Thereafter, a New York Child Custody Lawyer said in deeming the recommendations contained in the reports to be adverse to the interest of his client, counsel for the defendant-wife referred her to a private psychiatrist for examination and evaluation.

Published on: April 23, 2014

Foster Parents Seek to Adopt Child

by Stephen Bilkis

By court order, the complainants, who are foster parents, seek the return of a four year old child who was placed with them for prospective adoption by the county’s department of social services, to whom the natural parents had surrendered the child custody.

A New York Family Lawyer said the child was placed with them after the complainants had been approved as adoptive parents following an investigation and observation over a protracted period. The child remained in their care under periodic supervision and review by a caseworker, until he was removed.

The removal of the child followed an investigation of an incident and was reported to the department. The reported incident involved an alleged severe beating of the child by the foster mother, who allegedly had inflicted massive bruises and welts on the child’s back, buttocks and thigh area. A caseworker investigated the report and the caseworker, who had been supervising the child’s guardianship, also investigated it the following day.

Published on: April 22, 2014

Court Decides Custody Battle

by Stephen Bilkis

A New York Family Lawyer said in the instant case, the mother and the father both filed petitions in the Nassau County Family Court seeking child custody. The father withdrew his petition and the court granted the mother’s petition without conducting an evidentiary hearing. The father filed a petition in the Queens County Family Court, seeking modification of the Nassau County order to award him child custody. After a full evidentiary hearing in the Family Court of Queens County, that court denied the father’s petition.

The father failed to present evidence of a change in circumstances during the three-month period between the granting of the mother’s child custody petition in Nassau County and his petition for modification in Queens County sufficient to warrant a change in custody. Moreover, the testimony and recommendations of the forensic examiner and the child’s therapist that a change in child custody would be detrimental to the well-being of the child were uncontradicted by the record and properly credited by the Family Court. The court’s determination that a change in custody would not be in the child’s best interests was based upon consideration of the totality of the circumstances and had a sound and substantial basis in the record.

A New York Custody Lawyer said in a proceeding to determine child custody, in which the mother cross-petitioned for modification of an order of the Bronx County Family Court granting the father child custody of the parties’ daughter, the father appeals from a dispositional order of the Nassau County Family Court which, after a hearing, granted permanent child custody of the parties’ two children to the mother.

Published on: April 21, 2014

Petitioner Discovers Previous Divorce Proceedings Never Finalized

by Stephen Bilkis

A New York Family Lawyer said a husband and wife, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of the said marriage, the wife believed that she had been divorced from her prior husband with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce which incorporated but did not merge with the Agreement. This notwithstanding, the husband and wife lived as husband and wife with the son of the prior marriage and on May 15, 2001, they had the child subject to this proceeding.

Difficulties apparently ensued between the couple in 2004, prompting the wife a practicing attorney to commence child custody, family offense and child support proceedings against her husband in Nassau County Family Court. A Temporary Order of Protection was issued in the wife’s favor. There was Child Protective Services involvement with the family. The Family Court entered a Temporary Order of Support ordering the husband to pay temporary support and child care expenses in the sum of $486 biweekly to the wife. The husband was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

Shortly thereafter, a New York Custody Lawyer said the husband commenced an Action for Annulment against the wife in the District Court of Clark County in the State of Nevada, on the grounds that the wife was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the wife failed to answer or appear on that action and a default was declared against her. The Judicial District Court issued a Decree of Annulment declaring the second marriage to be null and void and of no effect, and restoring each of the parties to the status of a single unmarried person. Relevantly, the Decree also adjudged and decreed that each party be awarded his or her property as determined in accordance with Nevada law and that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her.

Published on: April 20, 2014

Father Petitions for Custody of Child Born Out of Wedlock

by Stephen Bilkis

A New York Family Lawyer said this proceeding involves a natural father’s effort to gain child custody of his daughter born out of wedlock, from the respondent Nassau County Department of Social Services to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

Meanwhile, a New York Custody Lawyer said only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought child custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for child custody of his daughter. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

A Queens Family Lawyer said the critical issue presented is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child’s best interests. In denying the petitioner father’s application for child custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing child custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.

Published on: April 19, 2014

Father Petitions to Obtain Custody of Child Born Out of Wedlock

by Stephen Bilkis

A New York Family Lawyer said that, in a child custody proceeding pursuant to Family Court Act article 6 for custody of the subject child, the petitioner appeals from an order of the Family Court, Nassau County, dated April 27, 1989, which, after a hearing, dismissed the petition.

A New York Custody Lawyer said that this proceeding involves a natural father’s effort to gain custody of his daughter born out of wedlock on July 31, 1988, from the respondent Nassau County Department of Social Services (hereinafter the Department) to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The subject child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

A Staten Island Family Lawyer said that, meanwhile, on August 5, 1988, only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for custody of his daughter on September 8, 1988. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded, inter alia, that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

Published on: April 18, 2014

The issue in this case is whether the writ of habeas corpus should be granted.

by Stephen Bilkis

A York Family Lawyer said that, this proceeding was originated by the Petition for a Writ of Habeas Corpus of, filed in the Franklin County Clerk’s office on November 29, 2010. Petitioner, who is an inmate at the Bare Hill Correctional Facility, purported to challenge his continued incarceration in the custody of the New York State Department of Correctional Services. More specifically, petitioner asserted an entitlement to 717 additional days of jail time credit. He further asserted that with the application of such additional credit the conditional release date of his 4-year determinate sentence would have been reached on September 11, 2010.

A New York Custody Lawyer said that, the Court issued an Order to Show Cause on December 9, 2010 and as a part thereof this proceeding was converted into a proceeding for judgment pursuant to Article 78 of the CPLR. An Amended Order to Show Cause was issued on April 12, 2011. The Court has since received a reviewed the Answer and Return of the respondent verified on May 27, 2011, supported by the Letter Memorandum of an Assistant Attorney General, dated May 27, 2011. The Court has also received and reviewed the Answer of the other respondent dated May 26, 2011, supported by the Memorandum of Law of the Deputy Nassau County Attorney, dated May 27, 2011. Finally, the Court has received and reviewed petitioner’s Reply to both sets of answering papers, filed in the Franklin County Clerk’s office on June 9, 2011.

A Staten Island Family Lawyer said that, on January 7, 2010 petitioner was sentenced in Supreme Court, Nassau County, as a second felony offender, to a controlling determinate term of 4 years, with 3 years post-release supervision, upon his convictions of the crimes of Criminal Sale of Controlled Substance 3° and Criminal Possession of a Controlled Substance 7. The offenses underlying such conviction s were apparently committed in January of 2007. Petitioner was received into DOCS custody on April 8, 2010, certified by the respondent as entitled to 397 days of jail time credit (Penal Law §70.30(3)). DOCS officials currently calculate the maximum expiration and conditional release dates of petitioner’s sentences as March 5, 2013 and August 7, 2012, respectively. Petitioner asserts that he is entitled to an additional 717 days of jail time credit covering the period he was under Nassau T. A. S. C. [Treatment Alternatives to Street Crime] supervision, which was court mandated pursuant to petitioner’s plea agreement.”