Divorce

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.

Published on: October 31, 2014

Court Hears Argument in Child Support Proceeding

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, as denied his objections to stated portions of an order of the same court which, after a hearing, inter alia, fixed the father’s child support arrears in the sum of $20,046.76 and awarded the mother counsel fees in the sum of $5,000.

“In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses”.

Published on: October 25, 2014

Court Listens to Two Child Neglect Proceedings

by Stephen Bilkis

A New York Family Lawyer said that in two related child neglect proceedings pursuant to Family Court Act, the appellant father appeals from so much of an order of the Family Court as denied his motion to vacate a fact-finding order of the same court, made upon his default in appearing at a fact-finding hearing, finding that he had neglected the subject children, and, in effect, to vacate an order of disposition of the same court, which, upon the fact-finding order, directed the release of the subject children to the mother’s custody and directed him to complete, inter alia, domestic violence counseling.

A New York Divorce Lawyer said the order dated July 7, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant’s motion to vacate the fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-finding order and order of disposition are vacated, and the matter is remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it is further, ordered that, upon remittal, the Family Court shall forthwith make an order with regard to the custody of the subject children pending the new hearing or hearings and determination.

A Queens Family Lawyer said these proceedings were commenced pursuant to Family Court Act upon the filing of two petitions, in which it was alleged that the appellant father was a person legally responsible for the care of two female children, and that these children were neglected by him. The petitions were based on a single incident, in which it was alleged that the appellant, among other things, grabbed one of the subject children on the side of her neck.

Published on: October 24, 2014

Court Decides Child Custody in Light of Mentally Ill Respondent

by Stephen Bilkis

A New York Family Lawyer said that on 12 October 2001, a petition was filed against the respondent mother.

As alleged in the petition, the respondent mother neglected her seven-year-old child, T, by failing to provide the child with appropriate medical attention to treat her ADHD, by refusing to accept board of education referrals for a special education program for T, and by failing to provide T with adequate shelter because of her failure to pay rent, electricity and gas bills, and by using marijuana and not enrolling in a drug treatment program; and, the respondent mother has been diagnosed as suffering from mental illness, “specifically as paranoid and delusional, and with a possible personality disorder.”

A New York Divorce Lawyer said on the basis of the mental illness allegation, the petitioner seeks for an order pursuant to Family Court Act Â§Â§ 251, 1038 (d) to have the respondent evaluated to determine whether she in fact suffers from an untreated mental illness which impairs her ability to care for the child.

Published on: October 23, 2014

Father Moves for Custody in Light of Mentally Ill Mother

by Stephen Bilkis

A New York Family Lawyer said this is an appeal from an order of the Supreme Court entered 28 April 2009 in Ulster County, which, among other things, awarded plaintiff custody of the parties’ child.

The father, plaintiff and the mother, defendant were married in 2004 and are the parents of a daughter born in 2005. Within weeks of her birth, the couple began experiencing marital difficulties, stemming from the father’s growing concern about the mother’s mental health.

In January 2006, when the child was just five weeks old, the mother vacated the couple’s marital residence in Ulster County and traveled to Nassau County with the child. The father immediately initiated a proceeding in Ulster County Family Court requesting joint custody of the child and an order prohibiting the mother from removing the child from the child. Family Court issued an interim order restricting the mother from leaving the state with the child and set a prompt return date.

Published on: October 13, 2014

Husband Claims Aandonment and Adultery in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Family Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

The husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 12, 2014

Court Looks at Jurisdiction Issue in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Divorce Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

A Nassau County Family Lawyer said the husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 11, 2014

Father Seeks to Modify Restraining Order Against Him

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties’ three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties’ two daughters. The parties’ teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a “request for order” in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.