Divorce

Published on: April 1, 2013

Petitioner Seeks Protective Order in Light of Domestic Violence

by Stephen Bilkis

On June 30, 2010, Petitioner filed an Illegal Lockout proceeding by order to show cause in lieu of notice of petition, alleging that on May 5, 2010, his wife, Respondent had illegally locked him out of their apartment located at 1880 Valentine Avenue, Bronx, New York. Neither party appeared on the return date nor did the court dismiss the petition. A New York Family Lawyer said that, petitioner filed a second Illegal Lockout proceeding. On that occasion, Petitioner alleged that Respondent wife had locked him out of the subject premises in February 2010. Although Respondent appeared, Petitioner again failed to appear and the court dismissed that proceeding as well.

A New York Custody Lawyer said that, petitioner filed the Illegal Lockout proceeding now before the court, by order to show cause in lieu of notice of petition, on July 16, 2010, alleging that his wife had locked him out of the subject premises. Petitioner further alleged that he had contacted the police and that the police ordered him to leave. On July 23, 2010, both parties appeared and this court ascertained that on July 16, 2010, Family Court, Bronx County, granted each party a Temporary Order of Protection against the other. The Order of Protection obtained by respondent directed to petitioner, to stay away from respondent and the three minor children who reside with her at 1880 Valentine Avenue, Bronx, New York, and expressly excluded Petitioner from their home, the subject premises. In addition, Petitioner herein was directed to stay away from respondent’s place of employment and to refrain from any communication or other contact with the parties listed in the Order, except for court-ordered visitation with the parties’ infant child. Further, there was currently pending in Family Court a Family Offense proceeding, and a child custody and visitation proceeding, which listed petitioner’s address as 1160 Wheeler Avenue, Apt. # 1, Bronx, New York, not the address of the subject premises of this Lockout proceeding. Based upon the information presented, this court determined that Family Court was the most appropriate forum to resolve the parties’ dispute and dismissed the petition. The parties were directed to seek recourse in Family Court.

A Queens Family Lawyer said that, petitioner filed an order to show cause in Housing Court, alleging that the Family Court petition did not accurately state his address. On July 30, 2010, this court denied Petitioner’s motion based upon improper service. On August 4, 2010, Petitioner filed a second order to show cause in which he alleged that he had proof that Family Court had misstated his address. On August 13, 2010, the motion was adjourned to September 7, 2010. Petitioner failed to appear and the court again denied the motion.

Published on: March 20, 2013

Mother Charged with Severe Abuse of Child

by Stephen Bilkis

On June 9, 2009, the Administration for Children’s Services (ACS) filed a petition against Respondent Mother alleging she had abused and neglected her daughter. On June 8, 2009, a physician at the Medical Center reported that the child was brought to the hospital by EMS after Respondent found the child in an abnormal sleeping position and when he repositioned the child he had an abnormal pulse. A New York Family Lawyer said the child was brought to the hospital at 4:53 p.m. at which time he was pulse-less and all attempts to revive the child were unsuccessful; the child was pronounced dead at 6:30 p.m. The medical examiner reported that the official cause of death for the child is whiplash, shaking and blunt impacts of the head with subarachnoid and subdural hemorrhages. The child’s death has been ruled a homicide.

A New York Custody Lawyer said that, respondent-mother admitted to ACS ESC and Police at the 47th precinct that on June 8, 2009, the child, woke up around 1:00 p.m. and was fussing and crying and didn’t want to sleep. The Respondent mother admitted that she was stressed out and tired and that the Respondent-mother shook the baby forcefully, several times at which point the baby stopped crying and the Respondent mother put him back in bed to sleep.

A New York Custody Lawyer said that, in its Summation dated November 7, 2011, ACS stated that it has presented clear and convincing evidence that Respondent Mother acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven “aggravated circumstances” and that the infant was a “severely” abused child as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a), and that Respondent Mother failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as defined in Social Services Law 384-b (8) (a) as to the subject child. Further, based on the clear and convincing evidence of the heinous nature of Respondent Mother’s abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist Respondent Mother in reunification with the surviving child.

Published on: March 19, 2013

Mother Petitions Court for Relocation

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 now 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 custody of the child. The father had visitation every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25-miles of the father’s house in the Bronx. 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.

A Queens Family Lawyer said that, in March 2008, the mother met her future husband, on Match.com. He was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, he took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman’s Long Island branch, but the company could not accommodate his request. The mother and his future husband became engaged in May 2008. Soon after her engagement, the mother approached the father about moving to California to live with her future husband. The father was concerned about the distance and the stability of the mother’s new relationship.

Published on: March 18, 2013

Court Determines if Abused Mother Leaving Home Affects Child Custody

by Stephen Bilkis

A husband seeks custody of their two children from his wife who surreptitiously left the conjugal home in New York and took the children to Virginia where the wife’s relatives all lived.

During the trial, the husband and the wife testified. A New York Family Lawyer said the mother-in-law of the wife and the sister-in-law of the wife also testified for the husband and against the wife. The judge took the two children to a nearby park and interviewed the children. The judge videotaped this interview with the children.

During the custody hearing it was proved that the husband and the wife had a child when they were just teenagers. They got married within three years after the birth of their first child. The wife was emotionally and physically abused. The abuse consisted of sexual assault. The husband would force the wife to have sex. He would kick the woman and bite her, hit her with his fists in her back and buttocks. He also constantly criticized and insulted her within the hearing of their children. Both the husband and the wife took drugs. A New York Custody Lawyer said the wife’s injuries were documented by emergency room visits where the nature and extent of her injuries were reported. The husband and wife were separated from each other for nine months. During these nine months, the husband fathered a child by another woman. He then left his newborn child by another woman and returned to the conjugal home. By that time, the wife had already sobered up and was no longer using drugs. The husband continued to use drugs and the sexual assault of the wife by the husband continued until the woman escaped the conjugal home with her two children and left for Virginia.

Published on: March 5, 2013

Court Orders Psychiatric Counseling for Both Parents

by Stephen Bilkis

A husband seeks custody of their two children from his wife who surreptitiously left the conjugal home in New York and took the children to Virginia where the wife’s relatives all lived.

During the trial, the husband and the wife testified. A New York Family Lawyer said the mother-in-law of the wife and the sister-in-law of the wife also testified for the husband and against the wife. The judge took the two children to a nearby park and interviewed the children. The judge videotaped this interview with the children.

During the custody hearing it was proved that the husband and the wife had a child when they were just teenagers. They got married within three years after the birth of their first child. The wife was emotionally and physically abused. The abuse consisted of sexual assault. The husband would force the wife to have sex. He would kick the woman and bite her, hit her with his fists in her back and buttocks. He also constantly criticized and insulted her within the hearing of their children. A New York Custody Lawyer said both the husband and the wife took drugs. The wife’s injuries were documented by emergency room visits where the nature and extent of her injuries were reported. The husband and wife were separated from each other for nine months. During these nine months, the husband fathered a child by another woman. He then left his newborn child by another woman and returned to the conjugal home. By that time, the wife had already sobered up and was no longer using drugs. The husband continued to use drugs and the sexual assault of the wife by the husband continued until the woman escaped the conjugal home with her two children and left for Virginia.

Published on: March 3, 2013

Custodial Parent Makes a Request to Relocate

by Stephen Bilkis

In this case, the parties were divorced by judgment dated February 13, 2003. The Appellant father appealed from the order of the Supreme Court, Queens County dated August 28, 2009, which granted the Respondent mother’s motion for permission to relocate to North Carolina with the parties’ child.

A New York Family Lawyer said the parties in this case separated shortly after their daughter was born in 2000. They divorced in 2003, after a 2 1/2-year marriage. While the Respondent mother had child custody pursuant to a stipulation of settlement in the divorce proceeding, the child spent the first three weekends of each month with the Appellant father and his family, in addition to holidays and summer vacation.

The Respondent mother moved in the Supreme Court for permission to relocate to North Carolina with the child. At an expedited hearing, Respondent mother asserted that she desired a new beginning for herself and the child and that they would enjoy a higher standard of living and an improved quality of life. A New York Custody Lawyer said while Respondent mother initially proposed continuing the Appellant father’s existing visitation and bearing the expense of flying the child to New York three times per month, she subsequently suggested reducing the Appellant father’s visitation to one visit per month, with extended summer vacation.

Published on: March 2, 2013

Father Claims Child is Being Sexually Abused

by Stephen Bilkis

Each party to these post-judgment proceedings seeks modification of the Judgment of Divorce from joint custody to sole custody. A New York Family Lawyer said the issue in the father’s case is whether the mother’s allegation of sexual abuse of the child involving the father and her request of the Court to restrict his access to the child constitutes a change of circumstances to modify the award of joint custody with physical residence to the mother, and if so, whether it is in the best interest of the child for sole custody and physical residence to be awarded to the father. The mother in her petition alleges the father is an unfit parent based on the sexual abuse allegations and requests his visitation be eliminated or supervised. The Court finds that there has been a sufficient change of circumstances and it is in the best interests of the child for her father to be granted sole custody.

The parties to this custody proceeding were married on September 7, 1991. There is one child of the marriage, born on July 27, 1995. They were divorced by Judgment of Divorce dated October 11, 1999 in the Supreme Court of the State of New York. A New York Custody Lawyer said the Judgment incorporated a Stipulation of Settlement entered into between the parties on the record in Court on July 30, 1999, and a written stipulation regarding custody, dated July 30, 1999, which survives and is not merged in the Judgment, and pursuant to which the parties share joint child custody, with primary physical child custody to the mother. The Supreme Court did not retain exclusive jurisdiction to modify the Judgment. The father was awarded child visitation schedule that consisted of Wednesday evenings between 5:30 p.m. and 7:30 p.m.; alternate weekends beginning Friday evenings at 6:00 p.m. through Sunday at 6:00 p.m.; and two weeks summer vacation in July and two weeks in August. The order also made provisions for holidays.

The complainant father and the opponent mother each seek modification of the Judgment and sole legal and physical custody of the child. A Nassau County Family Lawyer said the child has lived with her mother throughout her life. The father argues that the mother’s repeated fourth false accusation of sexual abuse, is indicative of the mother’s emotional instability and her attempts to frustrate his relationship with his daughter and that it is in the child’s best interest that the Judgment be modified to award him sole legal and physical custody. The Court finds that the mother’s fourth allegation of sexual abuse of the child is a sufficient change in circumstance, in that the mother, in part of a continuing pattern of attacks on the father in which she asked the Court to be her partner, interferes with and compromises his relationship with the child and, potentially, compromises the child’s future development. The Court finds that it is in the child’s best interest for custody to be awarded to the father in that continued joint custody and physical residence to the mother is detrimental to the child’s current and future development.

Published on: March 1, 2013

Young Mother Faces Neglect Charges

by Stephen Bilkis

A neglect complaint was filed against a 16 years old mother alleging that she left her child with her mother and other unknown individuals without making adequate provisions for her care. There were also allegations of poor hygiene and medical neglect with respect to a serious diaper rash. The 16 years old mother made an admission of neglect and her child was placed with the commissioner for an initial period of twelve months. A New York Family Lawyer said the goal of the permanency plan was return to the parent and the young mother was expected to complete parenting skills classes, engage in therapy and to obtain suitable housing and employment in order to meet that goal.

A social service group was assigned as the foster care agency to manage the family. The record in court contains no evidence as to when the said agency received the contract. There are no records at all when the child was placed in care. Almost three full years, the agency placed into evidence and the only records documenting an assorted 13 months of casework by no less than five different caseworkers. The young mother testified on her own behalf and the law guardian consequently did not present any independent evidence.

The complainant alleges that although the agency arranged visitation between the young mother and her child, the mother for more than a year following the date on which the child came into the agency’s care, failed substantially and continuously or repeatedly to maintain contact with her child. The caseworker’s records do not reflect any formal visitation schedule set up by the agency between the mother and her child. A New York Custody Lawyer said in fact, the casework records only noted the visits by the mother to her child in the foster home in passing, as part of her observations in home visits at the foster home, or in conversations with the foster mother. However, those limited references suggested that the visitation between the mother and her child was regular and frequent.

Published on: February 23, 2013

Court Discusses Whether Plaintiff Sufficiently Stated a Cause of Action

by Stephen Bilkis

Prior to the incident, infant plaintiff’s father was known to the defendant’s police officers at the 43rd Precinct, having previously been arrested by them approximately six times for drunkenness, abusive and physical assault upon his family. In July, 1975 he assaulted his wife with a knife, inflicting lacerations which required suturing at the Hospital; a New York Family Lawyer said that she thereafter brought a divorce action, which resulted in further violence by the infant plaintiff’s father and threats by him that he would kill her and the children if she proceeded with the divorce action. A Bronx Order of Protection Lawyer said that, the infant’s mother thereupon went into the Family Court where, she obtained a preliminary order of protection against her husband; thereafter, the order was finalized for one year and, over her strenuous objections, was amended to grant to the father visitation with the infant plaintiff from 10:00 A.M. on Saturdays to 6:00 P.M. on Sundays. After the parties left the courtroom the father attempted to assault his wife and he had to be restrained by a court officer. The Family Court judge was informed of the incident and thereupon directed the court officer to get him out of the building; however, the judge did not rescind his week-end visitation with the infant.

A Bronx Order of Protection Lawyer said that, in accordance with the provisions of the Family Court Act, a “Certificate of Order of Protection” was duly issued to the infant’s mother by the clerk of that court on November 6, 1975 certifying that an Order of Protection had been issued to her, pursuant to which the infant’s father was forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward petitioner and he is to remain away from the home of said petitioner.”

A New York Custody Lawyer said two days later, the infant’s mother took the infant to the 43rd Precinct to accord the infant’s father his week-end visitation. He took the infant and, as he was walking away, he made a death threat against his wife, and the infant, and he indicated to his wife that before the week-end was up she would be making “the sign of the cross” which to them meant that there would be a death. The mother immediately went into the precinct and told the desk officer of the death threats to herself and the infant; she showed the desk officer the Certificate of Order of Protection; she advised him of her fears and told him that she was frightened for the safety of her child and herself and that the Order of Protection protected her from such threats and she requested the police to take her husband into custody for violating said order. However, the police refused to do anything whatsoever. The infant’s father failed to return the infant at 6:00 P.M., as required by the Order of Protection. The mother again went into the station house and she again spoke to the police officer and the lieutenant she again demanded that the police arrest her husband for violating the order and protect the infant; once again the police refused to do anything whatsoever and told her to wait a couple of hours and that “perhaps” the father had taken the infant to a movie. Thereafter, the infant father’s sister entered his apartment. She found him lying on the floor with an empty whiskey bottle and an empty pill bottle lying beside him. She also found the infant, who had been viciously attacked, mutilated and severely injured by her father and she telephoned the police. The father had attacked the infant at about 7:00 P.M. with a fork, a knife and screwdriver; he had attempted to saw her leg off with a saw; she had been slashed from head to toe and she had sustained severe multiple internal injuries. Minutes later police officers from the same 43rd Precinct arrived and they rushed the infant to the Hospital in their police car, without waiting for an ambulance; the infant was immediately taken into surgery and she was operated. The infant was in a coma for several days and she remained in a critical condition for approximately three weeks and was hospitalized until December 19, 1975 she remains severely and permanently disabled. The father was arrested after the attack on the infant and he was thereafter indicted by the Grand Jury, tried and found guilty of attempted murder of the infant and he is now serving a jail sentence for the crime.

Published on: February 21, 2013

Court Decides Visitation Rights of Incarcerated Parents

by Stephen Bilkis

The children in question were placed in petitioner’s foster care. A New York Family Lawyer said the birth mother’s drug use was the catalyst for the placement. Her whereabouts are unknown and she was not present at any of the Family Court proceedings. Respondent is the father of the children. At the time of the children’s placement, he was incarcerated in state prison on a murder conviction and will remain incarcerated until at least May 2016. By that time, both children will have passed their 18th birthdays. In early August 2000, an agency case worker took the children to visit respondent in prison.

A Bronx Child Custody Lawyer said that, according to the agency worker this was the only visit respondent had with the children prior to the agency’s filing of separate petitions seeking the termination of his parental rights. These petitions alleged that respondent had evinced intent to forgo those rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and had therefore abandoned them. She testified that she contacted respondent through prison channels after the aforementioned visit, but he never responded or contacted her. Some of the letters she sent to him were returned to the agency but she did not produce at the hearing copies of any of the letters she claimed to have sent. She testified that respondent provided no financial support for the children did not maintain contact with them, did not send cards, letters or gifts and that no one contacted the agency on his behalf before the petitions were filed. She maintained that the agency did nothing to prevent or discourage respondent from coming forward, nor were there any other obstacles that might have prevented him from contacting the agency.

A New York Custody Lawyer said that, on cross-examination, however, the agency worker testified that before the petitions were filed, she telephonically spoke with a family service specialist from the Osborne Association who had contacted her on respondent’s behalf regarding the children. The Association facilitates family visits for prisoners incarcerated in New York correctional facilities. She gave the specialist the children’s foster parents’ names and addresses, as well as a letter acknowledging that the agency was in agreement with the Association’s scheduling a visit between the children and respondent in August 2004. She stated that the first time she personally met with the specialist was during that month. Upon questioning by the court, she admitted that she did not send any letters to respondent between February and August 2004 to notify him of any conferences, and did not make any other attempt to contact him during that six-month period. She never asked her supervisor if she could contact respondent directly, either orally or in writing, but stated that she would have had no problem with such direct communication had she known it was permitted.