New York City

Published on: April 17, 2014

The issue in this case is whether the Supreme Court erred in holding that the Department must accept prisoners within 10 days after they are State-ready.

by Stephen Bilkis

A New York Family Lawyer said that, this CPLR article 78 proceeding was originally commenced by 43 of New York’s 58 County Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners.

A New York Child Custody Lawyer said the respondents include representatives of the Department of Correctional Services, which is charged with the responsibility of accepting and keeping all persons sentenced to a term of imprisonment in a State correctional facility, the Commission of Correction, which oversees all correctional institutions in the State and promulgates rules and regulations establishing minimum standards for the care of persons confined therein, and the State Division of Parole, which is responsible for the supervision of persons paroled from State correctional facilities.

A Suffolk County Family Lawyer said the genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility. After sentencing, there is some delay while certain paperwork is processed before the prisoner is “State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.

Published on: April 17, 2014

Court Decides Private Placement Adoption

by Stephen Bilkis

In these private placement adoption proceedings, infants were placed with prospective adoptive parents in violation of the Interstate Compact on the Placement of Children and New York’s laws requiring certification of prospective adoptive parents as “qualified adoptive parents”.

Inexplicably, the administrator of the Interstate Compact gave approval for the placements.

A New York Family Lawyer said that, in the first case, petitioners hired a California attorney and two New York attorneys to assist them in attempting to adopt a child. On the advice of their first New York attorney, they caused a pre-placement investigation to be undertaken in August, 1990, and a certified social worker completed the investigation of them that same month. Petitioners retained present counsel in November, 1990. Although present counsel advised them to initiate New York’s certification process immediately, they waited until May 21, 1991 to file a petition for certification. They submitted with the petition a copy of the 1990 pre-placement investigation, a financial statement showing them to own more than 5 million dollars in property, and a copy of their 1989 tax return showing them to have an income of $1,500,000. The tax return lists as residents of the State of Connecticut. The date the certification petition was filed, the court ordered a report on them from the Statewide Central Register of Child Abuse and Maltreatment.

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 15, 2014

Court Decides Case Regarding Request for Class Action

by Stephen Bilkis

A New York Family Lawyer said in this case, petitioners appeal from so much of a judgment, as denied their request for class action treatment and dismissed so much of their consolidated proceedings as challenged the respondents’ 22-hour per day lock-in policy with respect to certain pretrial detainees.

A New York Custody lawyer said that initially the respondents argue that because none of the named appellants is at the present time incarcerated at the Correctional Center, this matter should be deemed academic and the appeal dismissed.

The Court disagreed inasmuch as the lock-in of pretrial detainees will doubtless recur and because the questions presented on this appeal are of substantial importance and general interest.

Published on: April 14, 2014

Defendant Contends that Court Failed to Properly Establish Foundational Requirements for Admission of Evidence

by Stephen Bilkis

This is a proceeding wherein the defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.

A New York Family Lawyer said the court presided over a Jury Trial from 31 March 2008 through 3 April 2008. The People called five witnesses, A, B, C, D and E at trial. After the People rested, the defendant made a motion for a Trial Order of Dismissal. The People contested the defendant’s motion. The basis of the defendant’s motion was the failure of the People to have the defendant’s urine test results admitted into evidence, thereby failing to establish a prima facie case against the defendant. The People argued that the urine test results should have been received into evidence. The defendant’s motion for a Trial Order of Dismissal was granted by this Court.

A New York Custody Lawyer said the court finds that the People’s failure to properly establish the foundational requirements for admission of the urine test results is fatal in the prosecution of a Driving While Impaired by Drugs case. Therefore, defendant’s motion for a Trial Order of Dismissal must be granted.

Published on: April 14, 2014

Defendant Contends Court Lacked Foundational Requirements for Admission of Evidence

by Stephen Bilkis

In this case, defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.

A New York Family Lawyer said that in October 2005, a civilian witness called 911 from his mobile phone and reported that he observed another vehicle operating in an erratic manner on Wantagh Avenue, in Levittown, County of Nassau. He pulled the other vehicle over and waited for the Police to arrive. A Police officer, a Sergeant Shea of the Nassau County Police Department arrived at the scene shortly thereafter. He testified that he spoke with the civilian witness and the defendant and noticed that defendant appeared nervous and disheveled. He also testified that the defendant was unsteady on her feet and seemed impaired in some way. As a result of the defendant’s appearance, the Sgt. requested that the defendant submit to Standardized Field Sobriety Tests (S.F.S.T.). The Sgt. explained that S.F.S.T. are divided attention tests which are used nationwide by Police departments to determine if someone is intoxicated or impaired by drugs. After observing the defendant’s performance on the S.F.S.T., the Sgt. arrested the defendant for Driving While Intoxicated and brought her to the Central Testing Section of the Nassau County Police Department in Mineola for processing and testing.

A New York Child Custody Lawyer said the Sgt., upon arriving at Central Testing he requested that the defendant submit to a chemical test of her breath to determine the level of alcohol in her blood. The defendant consented to the breath test and the breath test was administered to the defendant. He requested that the defendant submit to a urine test to determine what, if any, drugs were in her blood. The defendant consented to the urine test. The defendant went into a bathroom with a female Police Officer and an empty urine container. When the defendant came out of the bathroom, the urine container was filled with a liquid. The Sgt. testified that he sealed the urine container with red evidence tape and affixed to it a label with the defendant’s name. The urine container was later brought by Sgt. Shea to the Police lab and locked in the Toxicology refrigerator.

Published on: April 13, 2014

Court Hears Custody Case File by Sheriffs

by Stephen Bilkis

This is a Custody action was commenced originally Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners.

A New York Family Lawyer said that the genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility.

After sentencing, there is some delay while certain paperwork is processed before the prisoner is “State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.

Published on: April 13, 2014

Guardians Sue for Termination of Parental Rights

by Stephen Bilkis

A New York Family Lawyer said that a father was in prison at the time of his child’s birth, and was ultimately sentenced to a determinate ten years of imprisonment upon his conviction for attempted robbery. While the man was in prison, he filed a petition seeking visitation with his child, resulting in the issuance of an order of custody. The order provided that the mother of the child would have the custody and the father would have visitation at the correctional center at least once a month.

Afterward, a New York Child Custody Lawyer said the child came into the care of the county’s department of social services as the result of an emergency removal. The child was then placed with foster parents. The department of social services subsequently filed a petition against the mother alleging that the child was a neglected child as a consequence of the mother’s substance abuse.

Subsequently, a Long Island Family Lawyer said the court issued an order of fact finding and disposition with continued placement. The court also modified the permanency plan to adoption, and shortly thereafter, changed to dual goals of adoption/reunification with the mother.

Published on: April 12, 2014

Court Decides Custody Battle When Mother Remarries

by Stephen Bilkis

A New York Family Lawyer said the parties, in this matter, shared custody of their children. Physical custody was awarded to the mother, subject to the father’s right to visitation as set forth in their separation agreement which was incorporated but did not merge with the judgment of their divorce. The separation agreement provided that the father would have mid-week overnight visitation with the children.

Almost one year after, a New York Custody Lawyer said the mother married another man. After the marriage the mother, her new husband, her children, and eventually the two children from the second union lived together in a house owned by the man’s parents. An increase in property taxes led the man’s parents to decide to sell the house. The man’s parents offered to assist with housing expenses if the man and the mother decided to relocate to the Albany area.

From then on, and as a result of the said conversation with his parents, the man began to search for a new job, in an effort to effectuate the said relocation. Afterward, the man was offered a job with a waste and recycling company in the Albany area. Even if it is the mother’s contention that she discussed the possibility of relocation with her former husband, there is some argument as to whether the father of the children initially voiced any objection.

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.