Divorce

Published on: June 2, 2013

Court Decides Guardianship Proceeding

by Stephen Bilkis

In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.

A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.

The issue to be resolved in this case is whether respondent should be placed under guardianship.

Published on: June 1, 2013

Mother Seeks to Relocate Child

by Stephen Bilkis

The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical child custody. The father was given visitation rights every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation also allowed relocation within 25–miles of the father’s house in Bronx County.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

A New York Custody Lawyer said that after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying to mirror my own childhood. I had a wonderful suburban upbringing. The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.

Published on: May 31, 2013

In Sad Case, Mother of Child Accused of Abuse and Neglect

by Stephen Bilkis

An institution moved to request a decision without proceeding with regards to the child neglect proceeding. The institution requested the court to enter a finding of derivative neglect against the mother of the child based on the court’s prior finding of neglect as to her older child.

Consequently, a New York Family Lawyer said the attorney of the child filed an affirmation opposing the institution’s motion. The attorney stated that the mother had accepted services and did not exhibit an impaired level of parental decision as to create a substantial risk of harm to the infant. The mother’s attorney also filed responsive papers opposing the institution’s motion. For that reason, the court denies the institution’s motion.

Later, the institution filed a child abuse and neglect petition against the mother. Sources revealed that the petition claimed that the children are less than eighteen years of age whose physical, mental or emotional conditions have been impaired or are in imminent danger of becoming impaired as a result of the failure of their mother to exercise a minimum degree of care in supplying them with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, or by misusing a drug, and not voluntarily and regularly participating in a rehabilitative program, or by any other acts of a similarly serious nature requiring the aid of the court.

Published on: May 30, 2013

Wife Contends Husband Violated Order for Protection

by Stephen Bilkis

The complainant woman filed a Family Offense Petition in the Family Court of Bronx County against her husband. A New York Family Lawyer said acting on the petition, the Family Court issued a permanent Order of Protection in favor of the wife. The Order, the duration of which is 12 months, directed that the husband shall refrain from acts constituting assault, menacing, reckless endangerment, and/or disorderly conduct directed against his wife and it is further ordered that the husband is excluded from the wife’s apartment.

Earlier, the Bronx County Family Court had issued an order governing visitation by the husband to their child.

On August 10, 1987, the complainant filed a Petition for Violation of the Order of Protection in the Bronx Family Court based on conduct allegedly engaged in by the husband on several occasions. It is the conduct complained of on August 9 and 10, 1987 along with the events of July 26, 1987 which likewise form the basis of the criminal charges. A New York Custody Lawyer said also on August 10, 1987, the complainant filed with the Family Court a Petition for Modification of the Visitation Order. Both petitions were signed by the wife on August 10, 1987. The husband was arrested on the wife’s complaint to the police and given a desk appearance ticket returnable in the Bronx Criminal Court.

Published on: May 29, 2013

Court Decides Adoption of a Minor

by Stephen Bilkis

An Order of Disposition by Family Court of Bronx County was entered and adjudicated the appellant, a juvenile delinquent upon his admission in Westchester County Family Court. A New York Family Lawyer said he admitted that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him in the custody of the Office of Children and Family Services for a period of 18 months. The order was unanimously reversed on the law without costs, and the matter was remanded to Family Court of Bronx County for a new fact-finding hearing.

The Appellant juvenile delinquent is entitled to vacatur of his admission because the court failed to comply with the allocution requirements of Family Court Act which provides that at the initial appearance, the respondent shall admit or deny each charge contained in the petition unless the petition is dismissed or the proceeding otherwise terminated.

A New York Custody Lawyer said the allocution was inadequate because the court did not advise appellant that he had the rights to testify, call witnesses in his own behalf and confront witnesses against him. It is also found to be inadequate because the appellant was not advised of the presentment agency’s obligation to prove his guilt beyond a reasonable doubt. Since the requirement is not waivable, preservation is not required.

Published on: May 28, 2013

Court Overturns Order for Protection

by Stephen Bilkis

Petitioner filed a family offense petition in wherein she alleged in pertinent part that respondent physically assaulted her on numerous occasions and threatened to shoot her. A New York Family Lawyer said although served with a copy of the summons and petition, respondent did not appear on the return date of the petition. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the judge entered a final order of protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against petitioner mother and the children.

A Queens County Order of Protection Attorney said that respondent father filed a petition seeking visitation with the children. The court dismissed the petition without prejudice as neither party appeared. There is no indication that the father ever served the mother with the petition. This is how matters remained until the Administration for Children’s Services filed neglect petitions against the mother alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.

Later, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, petitioner mother was ordered to refrain from making disparaging comments against respondent, who was not a respondent in the neglect proceedings.

Published on: April 17, 2013

Birth Mother Attempts to Reverse Adoption

by Stephen Bilkis

A pregnant woman, who was then 20 years of age, unmarried and at her sixth month of pregnancy, sought her obstetrician’s assistance in placing her forthcoming child for adoption. The doctor, the woman’s obstetrician then contacted an interested young childless couple. A New York Family Lawyer said as a result, preliminary arrangements for the adoption commenced. The woman, who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of her pregnancy.

On 9 December 1981, the woman gave birth to a son. On 11 December 1981, the woman retained a lawyer. On 20 January 1982, she then signed an extra-judicial consent form for her son’s adoption in order to permit the adoptive parents to take possession of the child. The consent form states on its face that it shall become irrevocable 30 days after commencement of the child adoption proceeding unless revoked within that time, pursuant to the Domestic Relations Law.

A New York Custody Lawyer said on 24 March 1982, the child adoption proceeding was instituted in the Surrogate’s Court of Westchester County. However, six days later, the woman or the natural mother filed a notice of revocation of consent which the adoptive parents immediately resisted. The Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest. In her memorandum to the trial court, the natural mother urged that section 115-b of the Domestic Relations Law be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood. During the hearing, the parties focused on best interests, an issue which consumed nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contained no claim by the natural mother that she was misled by the consent form. Thus, the court denied the natural mother’s application to withdraw her consent, finding that revocation would not serve the best interests of the child. While the Acting Surrogate recognized that a lay person could easily infer from the language of the form that the consent could be revoked and upon adoption revocation the parties would be restored to a status quo position, it found that the natural mother had not been misled by the form, that she had understood the consequences of her act and that she had been represented by competent counsel, and therefore had not been deprived of due process.

Published on: April 16, 2013

Court Decides Jurisdiction Issue in Family Law Case

by Stephen Bilkis

This original application for a writ of prohibition arises out of the new law (L.1978, c. 481), imposing criminal responsibility on juvenile offenders for certain crimes. Sodomy in the first degree is one such crime (PL § 30.00(2)). A Bronx Family Lawyer said that, petitioner, a 15 year old juvenile offender (PL § 10.00(18)), stands indicted on four counts of sodomy in the first degree. He was arrested on October 4, 1978, and was arraigned in the Bronx Criminal Court the following day. By reason of the intervening weekend and the Jewish holy days which followed thereafter, the case was adjourned to October 11, 1978. A Bronx Family Lawyer said that, on that day, petitioner made request for a preliminary hearing and for a hearing seeking removal of the charges to the Family Court. In response to the application, the prosecutor informed the court that a true bill had been voted by the Grand Jury on October 10, 1978, although, as a result of time pressures, the indictment had not yet been handed down. The judge presiding denied the application on the ground that he had been divested of jurisdiction by the action of the Grand Jury. He adjourned the proceeding until October 13, 1978 in order to afford the District Attorney’s office time to file the indictment. In fact, the indictment was filed the next day, and on October 13, 1978, the case was transferred to the Supreme Court.

A New York Family Lawyer said that, petitioner moved before the Justice for multiple relief, including a dismissal of the indictment under CPL § 210.20(h) upon the ground that “there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”. The specific basis urged was that petitioner had been deprived of the right to a removal hearing. A Bronx Family Lawyer said that, the Justice denied the application upon the ground that the “Grand Jury acted within its own authority which cannot be diminished by any previous court hearing or lack of such hearing”. A motion for leave to reargue was denied. Thereupon, this proceeding was brought.

The issue in this case is whether the indictment of petitioner should be dismissed on the ground that there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.

Published on: April 15, 2013

Court Decides if Child Protective Services are Immune from Liability

by Stephen Bilkis

Plaintiffs are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the custody of their natural parents in February 1982 after it was determined that the five-year-old child had contracted gonorrhea of the throat. The children were first placed with defendant Society and, after approximately two months, were transferred to the custody of defendant Agency. A New York Family Lawyer said that, at her deposition, the five-year-old child testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told the five-year-old child to say that she had fallen off a bicycle. The third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. The said child was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with the said child. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.

A New York Custody Lawyer said that, the complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.

A Queens Family Lawyer said that, this litigation has a long and tortuous history. Plaintiffs filed a bill of particulars in 1985 and a further bill in 1986. The City filed a bill of particulars in 1994, and defendant Agency filed its bill of particulars in 2000. It appears that no depositions were conducted until 1991 and that plaintiffs were not deposed until 1999. The instant motions to dismiss the complaint were interposed in March 2002. All defendants contended that they were subject to statutory immunity pursuant to Social Services Law § 419. Defendant Agency also sought dismissal on two additional grounds: that plaintiffs failed to comply with discovery demands (CPLR 3124, 3126), particularly with respect to deposition testimony, and that the evidence failed to demonstrate LWS knew or should have known that the foster families with whom it placed plaintiffs were unfit. In addition to statutory immunity, the City maintained that it was immune from liability under New York common law.

Published on: April 14, 2013

Maternal Aunt Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said that, in this adoption proceeding pursuant to Article 7 of the Domestic Relations Law, authorized child care agency (Agency), by motion filed June 30, 2011, moves the court to dismiss the private-placement adoption petition filed by pursuant to Domestic Relations Law § 115. Petitioner is the Maternal Aunt of the subject child, a foster child legally freed for adoption, who is in the lawful care and custody of the Agency and the Administration for Children’s Services (ACS).

A New York Custody Lawyer said that, the Agency asserts in its motion that the Maternal Aunt improperly filed the petition as a private-placement adoption. The Agency takes the position that the only path to the adoption of a foster child such as the subject child is an adoption from an authorized agency, and the Agency’s consent to such an adoption is required. The Agency states that it will not consent to the adoption of the subject child by the Maternal Aunt, and, therefore, the court is without jurisdiction to hear the Maternal Aunt’s petition. The Agency states that the power of the court is limited to finalizing or denying the adoption of the subject child pursuant to the agency adoption petition filed by the Foster Mother. The Agency further contends that should the court proceed to hold a hearing as to the adoption petition filed by the Maternal Aunt, any ruling made by the court would be without force and effect since the court does not have jurisdiction over the Maternal Aunt’s petition, and only the Agency can determine who may file a petition for adoption of this child.

A Nassau County Family Lawyer said that, in the alternative, the Agency moves to dismiss the adoption petition filed by the Maternal Aunt, as jurisdictionally defective in that it lacks the following statutory requirements: the marital status of the Maternal Aunt, certification of the Maternal Aunt as a qualified adoptive parent as required by Domestic Relations Law § 115(1)(b), and compliance with the provisions of Social Services Law § 374–a, the Interstate Compact on the Placement of Children, which sets forth procedures that must be followed should Y. be placed with the Maternal Aunt, who resides in the State of Florida.