Divorce

Published on: March 3, 2015

Court Listens to Case Dealing with Article 16 of the CPLR

by Stephen Bilkis

The issue raised in this case involves the application of Article 16 of the CPLR and its effect on the instructions to be given to the jury concerning apportionment of fault between tortfeasors, one of whom was negligent and the other an intentional tortfeasor, not a party to the lawsuit.

Plaintiff and her husband had an ongoing marital dispute. He had in the recent past thrown a substance in plaintiff’s eyes, temporarily blinding her, stolen her car and threatened to kill her. On January 8, 1992, plaintiff obtained a Temporary Order of protection against her husband from the Family Court Queens County. The order was renewed by that court on January 27, 1992 and was in effect on the night of the incident which gave rise to the suit against the County, February 13, 1992. The Family Court had also issued a warrant for the husband’s arrest.

Published on: March 2, 2015

Court Enforces Judgment Regarding Maintenance

by Stephen Bilkis

This appeal presents an opportunity for this Court to clarify the procedure for enforcing a judgment against an award of maintenance. This procedure differs from those applicable to other types of collection efforts because it harmonizes the judgment creditor’s right to reach these funds with the public policy of protecting the recipients of such funds, though they be judgment debtors.

Counsel said that, the respondent and his former wife, were divorced pursuant to a judgment entered in the Supreme Court, Suffolk County. The judgment of divorce incorporated the terms of a duly-binding separation agreement which provided, inter alia, that respondent would make monthly maintenance payments to his wife. Upon respondent’s failure to make these payments, the Supreme Court, Suffolk County, entered an income execution for support directing his employer, the respondent Prospective Computer, to deduct the maintenance payments from his income and to pay them over to the wife on a monthly basis.

Published on: March 1, 2015

Plaintiff Brings Child Custody Proceeding

by Stephen Bilkis

In a child protective proceeding pursuant to Family Court Act article 10, the Law Guardian appeals from so much of an order of the Family Court, Westchester County, entered January 5, 1989, as granted those branches of the father’s motion which were to compel the production of his daughter for examinations by a medical doctor and either a psychiatrist or psychologist of the movant’s choice.

This child protective proceeding is brought by the Westchester County Department of Social Services pursuant to Family Court Act article 10, alleging that the daughter had been sexually abused by her father. Thereafter, the father moved, inter alia, for a physical examination and a psychiatric or psychological evaluation of the daughter, to be conducted by licensed professionals of his selection. The Family Court granted this relief.

Published on: February 28, 2015

Court Decides Neglect Proceeding

by Stephen Bilkis

In this neglect proceeding commenced by the Nassau County Department of Social Services alleging, in essence, that a child now 15 1/2 years old had been sexually abused by the respondent, her adoptive father, for a period of approximately four (4) years prior to April 10, 1989, respondent moves for an order dismissing the petition and an award of counsel fees. A brief summary of the events leading to this motion is appropriate.

On August 30, 1989, respondent entered a general denial and the matter was set down for trial on October 30, 1989. In companion matters the Court issued temporary orders of protection removing respondent from the home and providing for supervised visitation. The amended petition in these companion matters alleges inter alia respondent’s tendency toward sadistic sexual practice as well as bestiality.

Published on: February 17, 2015

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

In three related proceedings pursuant to Social Services Law § 384–b and Family Court Act article 6 to terminate parental rights on the ground of permanent neglect, the mother appeals from three orders of disposition of the Family Court, Nassau County (Dane, J.)(one as to each child), all dated December 22, 2010, which, upon a fact-finding order of the same court dated January 8, 2010, made after a fact-finding hearing, finding that she permanently neglected the subject children, terminated her parental rights and transferred child custody and guardianship of the subject children to the Commissioner of the Nassau County Department of Social Services for the purpose of adoption. The appeal from the order of disposition brings up for review the fact-finding order.

On the contrary to the mother’s contention, the Family Court properly found that she permanently neglected the subject children Shanea R. and Kyshawn F. The petitioner established by clear and convincing evidence that it made diligent efforts to assist the mother in maintaining contact with the children and planning for the children’s future ( see [95 A.D.3d 885]Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139). These efforts included repeated referrals of the mother to drug treatment programs, the monitoring of her progress in these programs, repeated advice to the mother that she must attend and complete the drug treatment programs, and the scheduling of regular visits between her and the children (see Matter of Jada Ta–Toneyia L., 66 A.D.3d 901, 902, 886 N.Y.S.2d 640;Matter of Deajah Shabri T., 44 A.D.3d 1060 1061, 844 N.Y.S.2d 410;Matter of Distiny Angelina N., 18 A.D.3d 755, 756, 795 N.Y.S.2d 685).

Published on: February 10, 2015

Petitioner Challenges Three Rulings from Dept. of Social Services

by Stephen Bilkis

In this Article 78 family proceeding, Petitioners challenge three determinations of the Nassau County Department of Social Services.

On the first issue, the emergency assistance was denied to replace clothing of the petitioners’ four children, which was destroyed by parasitic pinworms.

Published on: February 8, 2015

Plaintiff Brings Motion to Dismiss Family Case

by Stephen Bilkis

In this family case, the Defendants bring this motion seeking to reargue and renew their prior motion to dismiss, pursuant to CPLR §§ 3211 and 327, which resulted in an order of this court denying the motion. The Plaintiff opposes the present motion. Before addressing the substance of the Defendants’ present motion it is worthwhile to review the nature of the underlying action, the Defendants’ prior motion and the claims made therein.

This is an action to recover monies allegedly due and owing pursuant to an equipment rental agreement (the “Agreement”) entered into by the defendant corporation and the Plaintiff’s assignor, guaranteed by the Defendant, the President of the corporation for the lease of telecommunication equipment and services.

Published on: January 19, 2015

Petitioner Seeks Modification of Child Support

by Stephen Bilkis

On three related proceedings, inter alia, for modification of child support and maintenance obligations, the petitioner husband appeals (1) from an order of the Family Court, Nassau County (Ryan, J.), entered December 20, 1988, which denied his objections to so much of an order of the same court (O’Shea, H.E.), dated September 19, 1988, as dismissed his application to increase the wife’s child support obligation, (2) from an order of the Family Court, Nassau County (Joseph, J.), entered May 18, 1989, which denied his objections to an order of the same court (Watson, H.E.), dated March 16, 1989, dismissing his application to reduce his maintenance obligation, and (3) as limited by his brief, from so much of an order of the Family Court, Nassau County (Joseph, J.), entered June 8, 1989, as denied his application to (a) vacate an income execution served on his employer, (b) adjudge the wife’s employer to be in contempt, and (c) vacate the order entered December 20, 1988.

The parties settled their divorce action on July 22, 1983, by entering into a stipulation which was incorporated in but did [167 A.D.2d 541] not merge with their judgment of divorce (see, Harkavy v. Harkavy, 167 A.D.2d 510, 562 N.Y.S.2d 182 [decided herewith]. The stipulation provided for the wife, at that time a full-time homemaker, to be the custodial parent of the parties’ two children. The parties further agreed that their assets, including the marital residence, would be essentially split evenly, and that the husband would pay child support as well as $100 per week maintenance.

Published on: November 2, 2014

Court Discusses Handling of Deposition in Felony Delinquency Proceeding

by Stephen Bilkis

This opinion follows the oral decision and order of the Court rendered on the record. This designated felony delinquency proceeding was commenced on January 4, 1991 by the District Attorney’s Office pursuant to Article 3 of the Family Court Act (“FCA”), charging Respondent with committing acts, which if committed by an adult, would constitute sexual abuse in the first degree, sodomy in the first degree and endangering the welfare of a child. Prior to the commencement of the fact-finding hearing, Respondent moved to dismiss the petition, claiming that the petition was jurisdictionally defective pursuant to FCA § 311.2. Respondent asserts that the supporting deposition of the five year old complainant was not properly sworn, subscribed or verified in accordance with Criminal Procedure Law (“CPL”) §§ 100.30 and 60.20.

The accusatory instrument in this proceeding consisted of the designated felony act petition, a supporting deposition signed and sworn to by the five year old child complainant, and a second deposition sworn to by an employee of the District Attorney’s Office, “duly qualified as a Notary Public.” This second deposition was in boilerplate form, stating that the employee interviewed the child and prior to notarizing the complainant’s supporting deposition, he found the complainant capable of taking an oath.

Published on: November 1, 2014

Court Considers Disposition of Child in Light of Being Born Addicted to Drugs

by Stephen Bilkis

The subject child was born on February 10, 2004 with a positive toxicology for opiates. This father is listed on her birth certificate. The subject child remained in the hospital for over a month due to withdrawal symptoms. When she was released from the hospital on March 17, 2004, the Administration for Children’s Services (hereinafter ACS) conducted an emergency removal, and thereafter, she was remanded to ACS, subsequent to, and pending, the resolution of the neglect petition ACS filed against her mother and father on March 19, 2004. On April 16, 2004, she began to reside with her current no kinship foster parents.

At the time the subject child was born, both her mother and father were using street methadone and heroin. ACS’s neglect petition alleges neglect by virtue of their substance abuse as well as the mother’s mental illness. The subject child’s parents were not married at the time she was born or subsequently. An order of filiation was entered on May 11, 2004 upon the request and consent of her parents, because at that time the agency and parents did not have a copy of her birth certificate in order to know whether the father had established his paternity. Based on the parents’ admissions and consent, a finding of abuse and neglect was entered against both parents on May 11, 2004. While this father was incarcerated, the court ordered him to be produced telephonically from prison in order that he could participate in all proceedings, including the permanency hearings. Upon consent, the court issued an order of disposition placing the child with the Commissioner of ACS on September 7, 2004.