Divorce

Published on: July 28, 2013

Court Looks at Cell Phone Ban in Public Schools

by Stephen Bilkis

A New York Family Lawyer said that, this proceeding was commenced pursuant to article 78 of the Civil Practice Law and Rules by notice of petition dated July 13, 2006 to “strike down” those portions of the Citywide Standards of Discipline and Intervention Measures (the Standards) promulgated by the Chancellor of the New York City School District which forbid students from bringing cellular telephones (cell phones) into public schools in the New York City School District (the Cell Phone Rules) without authorization.

A New York Order of Protection Lawyer said that, the petitioners are eight parents who have children presently enrolled in public schools in the city and the Chancellor’s Parent Advisory Council. Respondents are the New York City Board of Education, doing business as New York City Department of Education, Chancellor of the New York City School District, and the Mayor of the City New York. The challenged Cell Phone Rules are a single item in the 26-page Standards adopted by the respondents to carry out its obligation to adopt a code of behavior under Education Law § 2801. The Cell Phone Rules, denoted as prohibition level 1, A04 for kindergarten through grade 5, and B05 for grades 6 through 12 under the list of infractions (collectively, the Cell Phone Rules), proscribe “bringing prohibited equipment or material to school without authorization (e.g., cell phone, beeper, or other electronic communication/entertainment devices).”

A New York Custody Lawyer said that, the Standards are structured to set forth five escalating levels of disruptive behavior. The lowest level, level 1, is insubordinate behavior, level 2 is disorderly disruptive behavior, level 3 is seriously disruptive or dangerous behavior, level 4 is dangerous or violent behavior, level 5 is severely dangerous or violent behavior. Standards level 1 lists 10 proscribed behaviors for kindergarten through grade 5 and 12 for grades 6 through 12, which include the Cell Phone Rules. For each level of infraction the code provides for level appropriate “possible disciplinary responses.” The Standards also include a five-page “Bill of Student Rights and Responsibilities, K-12.”

Published on: July 27, 2013

Court Awards Custody Father in Light of Neglect Allegations

by Stephen Bilkis

A New York Family Lawyer said that, order of disposition, Family Court, New York County, entered on or about November 30, 2009, which, upon denial of respondent mother’s application to dismiss the neglect petition pursuant to Family Court Act § 1051(c) and a fact-finding determination that the mother neglected the subject child, among other things, released the subject child to the custody of non-respondent father, and order, same court and Judge, entered on or about November 9, 2009, which, to the extent appealed from as limited by the briefs, awarded custody of the child to the father, unanimously affirmed, without costs. A New York Family Lawyer said that, appeal from orders, same court and Judge, entered on or about February 2, 2010, which to the extent appealed from as limited by the briefs, set forth a visitation schedule for respondent mother, unanimously dismissed, without costs, as taken from a non-appealable order. A New York Child Custody Lawyer said that, the order, same court and Judge, entered on or about February 16, 2010, which, to the extend appealed from as limited by the briefs, modified the February 2, 2010 order and set forth certain travel and relocation conditions for petitioner father, unanimously affirmed, without costs. Order, same court and Judge, entered on or about April 8, 2010, which granted respondent father’s motion to dismiss the mother’s petition to modify the visitation orders, unanimously affirmed, without costs.

A New York Custody Lawyer said the issue in this case is whether the neglect petition pursuant to Family Court Act § 1051(c) and a fact-finding determination should be granted.

The court in deciding the case said that, a preponderance of the evidence supports Family Court’s finding that the child’s physical, mental or emotional condition was in imminent danger of becoming impaired as a result of the mother’s long-standing history of mental illness and resistance to treatment. The mother testified to multiple extended hospitalizations for mental illness, and the record showed her lack of insight into her illness and her repeated relapses due to noncompliance with treatment and medication. Family Court also properly denied the mother’s motion to dismiss the neglect petition pursuant to Family Ct Act § 1051(c), since the dangers the mother posed to the child had not passed and thus the court’s continued aid was required.

Published on: July 26, 2013

Court Rules in Custody Battle

by Stephen Bilkis

The parties were both born in Albania. Plaintiff first moved to the United States on December 14, 1989, after receiving a green card through the American Embassy in Belgrade, Yugoslavia. He became a United States citizen in 1997. A New York Family Lawyer said the plaintiff lived and worked in the United States continuously from late 1989 until the date of the commencement of this divorce action, only returning to Albania for brief vacations over the years (approximately the first six years of the marriage). Plaintiff is 48 years of age and defendant is 36 years of age.

A New York Child Custody Lawyer said that, plaintiff first returned to Albania in 1992, at which time the parties began to date. The parties became engaged when plaintiff returned to Albania for a six week visit in 1993. The parties were married in September 1995 in a civil ceremony in Albania after a two year engagement. Defendant lived with plaintiff’s family after the marriage, but plaintiff returned to the United States where he was working six weeks after the marriage. In 2001, defendant came to the United States as a permanent resident. The parties have five (5) children of the marriage. Defendant gave birth to the parties’ first child in Albania in December 1996. Plaintiff first met his son in or about February 1997 during a six week visit. The child was two (2) months old at the time. Plaintiff became a United States citizen in 1997. Plaintiff alleged that during the early years of the parties’ marriage they had a “good relationship” and averred that they “didn’t have any problem”. He further alleges that he spoke with defendant every week during the months when she lived in Albania and he lived in the United States.

A Bronx Family Lawyer said that, in or about November 1999, plaintiff had the oldest child circumcised when he was almost three (3) years old. At that time, defendant and the children were living with plaintiff’s parents, his brother and the brother’s wife and their two (2) children. Defendant testified that due to the circumcision, the child wanted to make frequent visits to the bathroom, which was located outside of the home where the parties were living. She testified that plaintiff told her not to take their son to the bathroom because the son was lying about his need to use the bathroom. Despite plaintiff’s warning, defendant took the child to the bathroom and plaintiff became very angry and, in fronts of their child, smashed her head into a wall. She alleges that this incident resulted in a black eye and hearing problems and bruises that lasted for two (2) to three (3) weeks. Defendant did not seek medical attention, averring that she wanted to keep the nature of her relationship with plaintiff private and that she was embarrassed, not wanting people to know. She further testified that the parties’ oldest child was “traumatized” by the incident and that he stayed “very, very close” to her after the incident and that after the incident plaintiff refused to acknowledge her when she directly addressed him. Plaintiff denies that this incident ever occurred.

Published on: July 25, 2013

Petitioner Claims Respondent is in Contempt of Visitation Order

by Stephen Bilkis

Petitioner A and Respondent B, residents of the State of Indiana, separated in July 2000. A seeks custody of C, their sixteen year old child. B moved to Illinois after the separation while A and C and their other children continued to reside in Indiana. A New York Family Lawyer said a divorce action was commenced in Indiana and the parties were divorced in 2001. Their settlement agreement provided custody of the unemancipated children to A and established B’s visitation rights.

A New York Child Custody Lawyer said A and C were granted permission by the Indiana Court to relocate to the State of New York in May 2002. The order directed visitation for B to take place in Illinois so he petitioned for finding of contempt arising out of visitation disputes. The Indiana Court found both parties in contempt but it did not order any change in custody.

By order of the Indiana court dated 25 September 2002, Diane was again found in contempt for failure to comply with B’s visitation rights. However, the Court found that it was not in C’s best interest to move her to Illinois to live with her father. By this time, neither the parties, nor the children, resided in Indiana.

Published on: July 24, 2013

Court Discusses Domestic Relations Law

by Stephen Bilkis

On 2 August 1999, this proceeding was commenced by the filing of an order to show cause. The petitioner is seeking a modification of a custodial visitation schedule established as a result of a stipulation of settlement subsequently incorporated but not merged into a judgment of divorce dated 13 September 1995 in the Rockland County Supreme Court. A New York Family Lawyer said the respondent has filed an affirmation in opposition and an attorney’s affirmation in which the issue of this court’s jurisdiction to hear the matter is raised. The respondent claims that the home State for the child is New Jersey and, therefore, this court is without jurisdiction to proceed.

The Law Guardian for the child has submitted a reply affirmation in which she takes the position that this court does have jurisdiction. On 23 August 1999, the petitioner submitted an affidavit in response to the respondent’s answer together with a memorandum of law. On 26 August 1999, the respondent filed a reply affirmation.

A New York Custody Lawyer said the facts in this proceeding are not in significant dispute. The parties have joint custody of A who is now almost 10 years of age. A resides with B in Lincoln Park, New Jersey, during the week, as well as the first weekend of every month during the school year. She splits summer vacation and alternates other vacations and holidays with her parents. In addition, the child has a Wednesday visitation with her mother from 6:00 P.M. to 8:00 P.M. The parties have joint legal custody.

Published on: July 7, 2013

Court Rules on Tragic Death of Infant

by Stephen Bilkis

At shortly after 1:00 a.m., an officer and his partner went to an apartment in response to a radio report of a person in distress. A New York Family Lawyer said outside the building, they were joined by two other police officers. In front of the building, the officers met a woman, who stated that her cousin, had a baby and the baby, who was up in the apartment, had died

A New York Custody Lawyer said the woman led them up to the apartment, where they met the offender’s grandaunt. One of the officers directly moved into a bedroom where he saw the offender resting on one bed and the baby, wrapped in a towel, on the other bed. A garbage bag containing what appeared to be the afterbirth was near the baby’s body. The officer assesses the baby’s pulse and felt nothing. The emergency medical services arrived shortly afterward. Since there was a dead infant, the officer was obliged to contact a detective supervisor, the crime scene unit and the district attorney’s office.

The officer did not ask the offender further questions aside from asking her how she felt. In the investigation, the officer testified that the offender remained in the bedroom from the time of his arrival until she was later taken to the hospital. The officer also asserted that the offender was not restrained in the apartment, was not under arrest and she was not even arrested the following day.

Published on: July 6, 2013

Court Rules on Neglect Petition

by Stephen Bilkis

A mother of a boy, now age seven, has been the subject of child protective proceedings since he was ten- weeks-old. The boy is currently placed in foster care as a result of the most recent order of disposition issued by the Court against his mother, the Respondent.

A New York Family Lawyer said the mother has volunteered to participate in an instructional film being produced by her attorneys and has consented to the filming and participation of the boy as well. The Legal Aid Society, representing the boy and the Administration for Children’s Services (ACS) oppose such filming and have asked the Court to find that the use and dissemination of the boy’s image and identity is against his best interests and should be prohibited. For the reasons that follow, the Court conducted a hearing to determine whether the mother’s consent to the filming of her son should stand or whether her consent must be overridden.

The Respondent-mother was first brought before Bronx County Family Court after ACS filed a child neglect petition in October 2004, naming the boy as the subject child. The boy was a ten-week-old infant at the time of the filing. In June 2005, the then-presiding judge awarded the mother an Adjournment in Contemplation of Dismissal (ACD), pursuant to Family Court Act. The mother successfully completed the requirements of the ACD and the case was dismissed by operation of law in May 2006.

Published on: July 5, 2013

Court Determines if Mother is Unfit Parent

by Stephen Bilkis

On November 8, 2010, ACS (Administration for Children’s Services) filed petitions against a mother alleging that her six children were neglected children pursuant to Family Court Act. At that time, the youngest child was a new-born and the oldest child, was 16 years old. Five of the children were living with their mother in New York City having recently relocated from Washington, D.C. A 14 year old daughter had returned to Washington D.C., after coming to New York City briefly with her siblings when they relocated.

A New York Family Lawyer said the petitions alleged that the respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the school-age children were not enrolled in school in New York City during the 2010 2011 academic year until October 14, 2010. Additionally, the petitions alleged that the respondent misused marijuana; that she gave birth with a positive toxicology for marijuana and that she was not participating in a drug treatment program. A fact-finding hearing was conducted before the Court.

A New York Custody Lawyer said the ACS called two witnesses on their direct case, the caseworker and the respondent mother. In addition ACS introduced a number of documents into evidence. These included oral report transmissions dated November 3, 2010 and November 4, 2010 as well as the hospital records for the mother and the baby.

Published on: July 3, 2013

Court Decides Custody Battle

by Stephen Bilkis

In this visitation/child custody proceeding, the parties resided together as a couple at the time of their daughter’s birth. A New York Family Lawyer said within several weeks, respondent and daughter vacated the home and moved to New Jersey, where respondent filed and obtained the equivalent of a temporary order of protection from a Camden, New Jersey court based upon alleged physical and verbal abuse by plaintiff. The parties have been engaged in nearly continuous litigation since the daughter was approximately eight weeks old, with the exception of the five year hiatus.

A New York Custody Lawyer said that after a hearing in which the New Jersey court did not completely hear his side of the events, the New Jersey court issued a restraining order and directed that Petitioner pay compensation to the mother. Petitioner was also ordered to pay child support, an order with which the father admittedly did not comply. According to the father’s testimony, the mother did sue him successfully to enforce the child support order. What ultimately happened to the New Jersey order is not completely clear. The father averred that this order was reversed on appeal and that the parties were “bound over to Manhattan Family Court” because of “jurisdictional issues”.

A Bronx Family Lawyer said in January 1997, Respondent moved to the Bronx with the daughter. After the New Jersey court adjudicated that proceeding without issuing a final order of custody, petitioner visited with daughter sporadically for the next few years. The father’s testimony concerning his contact with the subject child during the very early years of the daughter’s life appears inconsistent and somewhat puzzling. At one point, the father testified that from 1996 to 1998, he knew that the daughter resided with the mother in New Jersey. He stated that he did not file any court papers seeking visitation because he wanted visitation in New York City, but knew that he could not compel visitation in that location. In fact, the mother moved to The Bronx several months after temporarily residing in New Jersey in 1996.

Published on: July 2, 2013

Court Decides Equitable Distribution, Maintenance and Support

by Stephen Bilkis

Defendant wife is now 52 years of age while plaintiff-husband is 56 years of age. A New York Family Lawyer sometime in August 1973, the parties got married. On the date of their marriage, the husband was 22 years of age and a college graduate while the wife was 18 years of age and a high school graduate. During the course of their marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation, the youngest son resided in Israel or was a resident student at a certain university, fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A New York Custody Lawyer said that sometime in November 2004, the wife commenced a divorce action against her husband which she later withdrew. Thus, sometime in December 2004, the husband commenced a divorce action against his wife. The parties litigated in Family Court from 10 November 2004, through 31 January 2005. The husband also brought a writ of habeas corpus against his wife and her mother which was dismissed. The Family Court action was then consolidated into the Supreme Court action, on consent. On 10 June 2005, the husband was granted a divorce, on consent and after proof, on the grounds of constructive abandonment. Shortly thereafter, the husband gave the wife a Jewish divorce. A law guardian was appointed for the youngest daughter, and a neutral forensic evaluator was appointed by the court.

A Nassau County Family Lawyer said that on 29 November 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The parties agreed, inter alia, of a shared joint decision making concerning their youngest daughter, age 13; that the wife would have physical custody; that there would be a parent coordinator; that the husband, the wife and child would separately enroll in therapy; and of a supervised visitation and a mechanism for the child and father to re-establish their relationship. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and the same was vacated, on consent.