Divorce

Published on: March 12, 2014

Court Reviews Unusual Case Regarding Suspected Poisoning of Decedent

by Stephen Bilkis

In this case, the defendant stands convicted of murder in the first degree upon an indictment which charges that the defendant willfully, feloniously and of malice aforethought poisoned the deceased, by giving and administered to her a quantity of poison, to wit, strychnine, and as a result of said poisoning said deceased died in December1943.’

A New York Family Lawyer said that the defendant is a pharmacist who for a period of years had been employed at a drugstore operated by the witness. He married the decedent in 1940 when she was twenty years old and he was thirteen years her senior. Although the record does not tell whether during the three years of their life together a child was born of the marriage, it does appear that the decedent was pregnant at the time of her death and that her pregnancy was not accompanied by unusual illness.

A New York Child Custody Lawyer said one evening, when the defendant was on duty at his place of business and the decedent was alone in their apartment she was called upon by her sister. At that time there were no indications that the decedent was ill. Within an hour after her sister left the decedent, the witness who lived on the same floor heard a strange noise which led her to open a door leading into the outside hallway. As she did so she saw the decedent standing in the doorway of the apartment apparently in distress. Upon going to her assistance she noted that the decedent’s body had stiffened, her face was drawn, ‘her eyes were like big saucers, very big, and she kept cringing like that, shivering, her body shaking.’ Her hands were clenched and drawn in toward her chest and her arms were bent from the elbows. After the witness had summoned by telephone the defendant, the decedent’s sister, and the decedent’s attending physician, she was aided by two other neighbors in placing the decedent on a bed. Although the decedent was conscious her legs had stiffened with toes turned in and her hands were in a claw-like position with fingers, wrists and elbows bent. She repeatedly cried out ‘I’m dying,’ ‘The sooner I die the better,’ ‘Let me die now,’ ‘I’m in terrible pain,’ ‘Don’t touch my feet.’ When the doctor arrived he found the decedent in a convulsion.

Published on: March 11, 2014

Petitioner Seeks to Modify Child Custody Due to Out of State Relocation

by Stephen Bilkis

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, as, after a hearing, denied her cross petition to modify a prior custody order, by permitting her to relocate with the subject children to Maryland.

A New York Family lawyer said that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence that the proposed move is in the child’s best interests”. When evaluating whether a proposed move will be in the child’s best interests, the factors to be considered “include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”

A New York Child Custody Lawyer said that although the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of the hearing court, we allowed a relocation determination to stand where it lacks a sound and substantial basis in the record. Moreover, in relocation determinations, our authority is as broad as that of the hearing court.

Published on: March 10, 2014

Court Reviews Motion for Summary Judgment

by Stephen Bilkis

A New York Family Lawyer said the plaintiff commenced this action to foreclose a mortgage given by defendant Realty Corporation, to secure a promissory note of the same date in the amount of $1,450,000.00 executed by defendant borrower in favor of a Savings Bank. The note was further secured by the written unconditional guarantees of payment executed by guarantor defendants. The subject mortgage, in which the mortgagor promised to pay the debt a provided in the note executed by defendant borrower was recorded in the office of the County Clerk. The original lender/mortgagee, the parent company of the plaintiff, assigned the promissory note secured by the subject mortgage and such mortgage to the plaintiff by a written assignment bearing a corporate acknowledgment. That assignment was recorded in the office of the Suffolk County Clerk thereafter.

A Kings County Family attorney said that the mortgaged premises consist of commercial property situated in New York which houses several rental units of commercial space. In its complaint, the plaintiff alleges that the mortgagor defendant defaulted in making the payment due and such default has not been cured. The plaintiff thereafter elected to accelerate the mortgage debt, the principal amount of which was $1,371,504.21 as of the date of complaint.

A New York Custody Lawyer said that the plaintiff seeks recovery of such amount together with late fees, interest and reasonable counsel fees upon the public sale of the subject premises, and a deficiency of judgment, if there be any following such sale, against the obligor defendants.

Published on: March 8, 2014

Court Discusses County Detension Program

by Stephen Bilkis

A New York Family Lawyer said an agency filed an appeal charging a man committed an act which if committed by an adult would constitute the crime of promoting contraband in the second degree. A fact-finding hearing was commenced. A community associate, a director, and a probation officer testified.

A New York Custody the offender made his initial appearance concerning the issue filed against him in the family court. He was released on that date with the condition that he attends the county’s alternatives to detention.

The director of the county’s alternatives to detention testified that participants are required to attend the program Monday through Friday, from 8:00 a.m. to 4:00 p.m. The program is consists of offices for the probation staff, a cafeteria, a recreational area, and classrooms for the attendees.

Published on: March 7, 2014

Court Rules on Petition to Modify Child Support

by Stephen Bilkis

A New York Family Lawyer said the complainant woman alleges in a claim filed on March 2, 2012, that on December 6, 2011 the Kings County Family Court granted her petition for modification of an Order of Support by Default. The court’s order, however, was erroneously associated with an old child support account number, since a clerk of that court refused to enter an updated number. The clerk’s action resulted in the complainant’s woman not receiving monthly child support payments of $714.00. In regard to damages, the complainant woman states that she is not getting her my son’s child support payments from the support collection unit.

A New York Custody Lawyer a pre-answer motion, the defendant moves to dismiss the claim on the ground that the Family Court lacks jurisdiction over it. Specifically, the defendant contends that the County Family Court does not have the authority to review a Family Court order, and does not have the jurisdiction to award equitable relief.

A Westchester County Family Lawyer said the Court of Claims has jurisdiction only over claims for money damages against the State of New York and a limited number of other entities specifically enumerated by statute. It has jurisdiction to hear and determine a claim of any person, corporation or municipality against the state for the appropriation of any real or personal property or any interest therein, for the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees, providing the claimant complies with the limitations of this article. The statute further states that the Court of Claims has jurisdiction to render judgment in favor of the claimant or the state for such sum as should be paid by or to the state. Though not entirely clear from the contents of the claim, to the extent that the complainant seek a review of another Court’s rulings, the Court of Claims does not sit in review of Family Court determinations or correct errors made in its proceedings. To the extent that claimant requests that the Family Court direct that a clerical error be corrected so that she may receive support payments in the future, and remove an employee from the Family Court, such relief is essentially equitable in nature, which the County Family Court has no jurisdiction to grant.

Published on: March 7, 2014

Court Discusses Rights of Minor’s Right to Due Process

by Stephen Bilkis

A New York Family Lawyer said the issue presented is whether the Family Court has jurisdiction to commit a juvenile to the Department of Mental Hygiene if it is alleged that the juvenile is a delinquent in a situation where, prior to being adjudicated pursuant to the Family Court Act, he is found to be incompetent to defend himself in such proceeding. It is hold that the Family Court has such jurisdiction, but that it must be exercised only in a manner consistent with the juvenile’s constitutional right to due process.

A New York Custody Lawyer said the appeals present a novel question concerning the rights of juveniles charged as delinquents. Each of the petitioner-appellants has been charged by a petition filed in the Family Court with committing acts which, had they been committed by an adult, would have constituted felonies.

Boy A was accused of several counts of robbery, assault and weapons possession arising out of the robbery of two elderly gentlemen. In the course of the robberies he used an ice pick and thereby inflicted minor wounds on his victims. Two days after the petitions were filed in the Family Court seeking to adjudicate him (he was then 14 years old) a juvenile delinquent he was remanded to Kings County Hospital to determine his fitness for trial. The examination was ordered at the request of the Law Guardian, and was conducted.

Published on: March 5, 2014

Court Discusses Case Involving Juvenile Delinquent

by Stephen Bilkis

A New York Family Lawyer said a fifteen-year old boy has petitioned the Supreme Court to prohibit the judges of the Family Court from reopening a fact-finding hearing by which he may be adjudged a juvenile delinquent, on the grounds that he will thereby be subjected to double jeopardy in violation of the Fifth and 14th Amendments to the United States Constitution, and contrary to the New York State Constitution.

The petitioner contends that he had already been exposed to jeopardy of his liberty in the Family Court when a witness was sworn and testified against him in an adjudicatory hearing, based upon a petition which charged him with criminal assault. In the midst of that proceeding the court declared a mistrial, over the objections of the law guardian for the petitioner. In fact, the presiding judge ordered the mistrial, Sua sponte, and for his own convenience. The judge remarked as he did so that he is disqualifying himself and declaring a mistrial.

A New York Child Custody Lawyer said the next day, the presiding judge, on his own initiative, recalled the case and abrogated the mistrial order for the purpose of reinstating the adjudicatory hearing against the accused. The law guardian again objected and raised the constitutional issue of double jeopardy as a bar.

Published on: March 4, 2014

Court Decides a Case Involving Double Jeopardy

by Stephen Bilkis

A New York Family Lawyer said that, in this Article 78 proceeding the petitioner, a boy 15 years of age, seeks an order prohibiting the respondent, Judges of the Family Court of the County of Kings, from re-conducting a fact-finding hearing upon the ground that to do so would place him in double jeopardy.

A New York Child Custody Lawyer said that, the juvenile delinquency petition made by a police officer, alleged in substance, on information and belief, that on November 19, 1968 the petitioner, while acting in concert with two other youths, did take and operate a Chevrolet truck, without the owner’s consent or permission, and did drive the truck across the street into two other parked vehicles, as a result of which all three vehicles were damaged. It was further alleged that the acts of the petitioner, if done by an adult, would constitute the crime of Unauthorized Use of Vehicle.

A Kings Order of Protection Lawyer said that, the fact-finding hearing, at which both sides were represented by counsel and had indicated readiness to proceed, commenced on January 14, 1969. The police officer testified that while on patrol he received information, gave chase, and apprehended the petitioner who was running on the sidewalk and took him into custody. He did not see the petitioner in the truck. Confronted with this situation the prosecutor asked the court for a moment and then said ‘After further consultation’ but he got no further. The court declared ‘All right. Mistrial.’ Petitioner objected to a mistrial. The court then continued questioning the officer who reiterated his prior testimony. Finally, the prosecutor said he was not ready, ‘That’s the way it stands now’, but added that he did have a witness to establish that petitioner was in the truck. The court said ‘One adjournment. Mistrial granted. Adjourned.’ It then developed that the missing witness was the son of the owner of the truck who was not present because he was tending to the business. The owner indicated a willingness to telephone his son to see if he was able to come down. The petitioner’s attorney stated to the court that a double jeopardy question was involved. The hearing ended with the court’s statement ‘Adjourned to 2/7/69. Mistrial granted. Police officer needs a witness.’ The court endorsed that language on the back of the petition.

Published on: March 3, 2014

Court Decides Case Regarding Subject Matter Jurisdiction

by Stephen Bilkis

A New York Family Lawyer said that, based upon the foregoing papers, defendant (Father) moves for a suspension and downward modification of his child support obligations on the ground that plaintiff (Mother) allegedly has refused his visitation with the parties’ daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone number or e-mail address for the child. He further moves for an order directing a change of custody and/or immediate visitation with the child.

A New York Child Custody Lawyer said that, the mother cross-moves for dismissal of Father’s application on the grounds that: (1) the court lacks subject matter jurisdiction to resolve the instant motion, pursuant to Domestic Relations Law § 76-a (1) (b), since neither the parties nor the child resided within the state of New York on the filing date of the subject application or six months prior to same; and (2) the court lacks subject matter jurisdiction because the child and her mother, the plaintiff, had no significant connection with the State of New York on the filing date of the instant application and for six months prior to such filing, and, in addition, substantial evidence is no longer available in the State of New York concerning the child’s care, protection, training and personal relationships. Plaintiff also moves, alternatively, for an order whereby the court declines jurisdiction over the instant custody/visitation dispute on the ground that New York is an inconvenient forum and a declaration that the province of Ontario, Canada is the appropriate forum to exercise jurisdiction over the controversy between the parties. The parties were divorced pursuant to a judgment of divorce which was granted upon Father’s default on May 10, 2006.

A Nassau County Family Lawyer said that, in support of his instant motion, Father submits an affidavit wherein he states the following, in relevant part, concerning the background of the subject custody/visitation dispute between the parties and the current custody/residential arrangements for the child. In support of her cross motion, Mother states that the subject judgment of divorce was obtained upon the default of Father. He was served by Mother with all divorce documents in Santa Clara, California, after he was located there by private investigators retained by Mother. He commenced his own action for divorce against Mother on June 27, 2005, but thereafter did not prosecute such action. A Kings Divorce Lawyer said that, in further support of his motion and in opposition to Mother’s cross motion, Father submits an affidavit.

Published on: March 2, 2014

Court Discusses Guardians’s Motion to Dismiss

by Stephen Bilkis

A New York Family Lawyer said that, the petition in this matter was filed on or about May 14, 1991 in Westchester County Family Court and on July 18, 1991 a fact-finding hearing was held. Thereafter the Court entered a finding that the respondent committed an act which, if done by an adult, would constitute the crime of Assault in the Third Degree under Penal Law § 120.00(1) which is a Class A misdemeanor. Pursuant to § 302.3(4) of the Family Court Act [hereinafter cited as “FCA”] the Judge in Westchester County ordered the proceeding transferred to the Family Court of Kings County for further action, and released the respondent to the custody of her mother pending the dispositional hearing.

A New York Custody Lawyer said that, on August 26, 1991 the case arrived in Kings County from Westchester County. On August 27, 1991, the case appeared on the court’s calendar and a summons was issued for the respondent. The respondent appeared with her mother on the return date, September 23, 1991, and a new law guardian was assigned, as the attorney who represented the respondent in Westchester County was discharged at the conclusion of the fact-finding. The Court ordered a probation investigation, pursuant to FCA § 351.1(2) and adjourned the case to October 30, 1991. On October 30, 1991 the law guardian requested time to submit a written motion dismissing the proceeding, and whatever rights the respondent may have had to a “speedy disposition” were waived by the respondent’s attorney at that time in order to prepare the motion.

A Nassau County Family Lawyer said that, the law guardian asks the Court to dismiss the petition, pursuant to FCA § 350.1(2), which provides that in all cases where the respondent is not detained, “the dispositional hearing shall commence not more than fifty days after entry of an order [fact-finding] pursuant to FCA § 345.1.” Respondent argues that the time from which to measure the fifty days begins on August 5, 1991 when the Westchester court entered the fact-finding order. Therefore the Court was required to conduct a dispositional hearing before September 24, 1991. When the case was adjourned from September 23, 1991 to October 30, 1991, that adjournment exceeded the fifty days provided for in the statute, and since the Kings County court made no finding of “good cause” or “special circumstances,” pursuant to FCA § 350.1 (3) or (5) to warrant an adjournment beyond the fiftieth day, the case must be dismissed for failure to provide the respondent with a “speedy disposition.”