Articles Posted in Divorce

Mr. NK, respondent in a Family Court proceeding, petitions for a judgment under Article 78 of the CPLR prohibiting the Judges of the Family Court, of Nassau County, or any of them, from proceeding with a hearing on a complaint under Article 8 of the Family Court Act made by JK against the petitioner.

Petitioner states that JK, the complainant in the Family Court, and he were formerly husband and wife but that the marriage was dissolved by a divorce in favor of JK, that JK resides with their two children in the City of Long Beach, that JK instituted the proceeding in the Family Court, Nassau County, under Article 8 of the Family Court Act, and that the provision of the Act under which he proceeds reads in part as follows:

“A proceeding under this article is originated by the filing of a petition: ‘(a) alleging that the respondent assaulted his spouse, parent, child, or other member of the same family or household, or engaged in disorderly conduct toward any such person.”

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Legal counsel said that recitation, as required by CPLR 2219(a), of the papers considered in the review of the cross motion of the Attorney for the Children seeking, inter alia an order granting the mother temporary child custody of the parties’ three younger children, and directing that the transcripts of the in camera interviews with the child conducted by the Court on April 30, 2010 remain confidential.

This is a custody proceeding brought on by the mother’s petition for custody of three of the parties’ four children. The children have resided primarily with their father since the beginning of November 2007 when, according to the father, the mother left but, according to the mother, the father locked her out of the family home.

On April 12, 2010, the Attorney for the Children citing child-protective concerns, requested that the Court interview the children in camera. Counsel for the mother and the father did not object, although the father’s attorney asked to be provided a transcript of the interviews, to which the AFC strenuously objected. I determined, without objection, to hold the in camera interviews but to withhold the transcripts of those interviews from the parents and their attorneys in order to afford the AFC an opportunity to file a motion to keep them confidential and counsel for each parent to respond. On April 30, 2010, I met separately the children. The children’s attorney was present during each of the interviews; the parents and their attorneys were not.

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A notice of Motion/Order to Show Cause/ Petition/Cross Motion and This court is called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel are properly before the court; (3) whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c); (4) whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of child custody, visitation and an order of protection; (5) whether or not the defendant should have the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

The defendant is presently represented by an attorney of her own choosing. Defendant’s counsel moved by order to show caused dated November 5, 2010, to be relieved. The counsel seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about him and his representation of her. In open court, on November 17, 2010, defendant stated she wished to discharge his attorney and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

The said counsel is defendant’s third attorney of record. Previously, defendant was represented by pro bono counsel, a New York City law firm. On March 10, 2010, a consent to change attorney was filed and the defendant was substituted as attorney pro se. On May 5, 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of child custody, visitation and an order of protection. Although not initially disclosed to the court by defendant, this attorney simultaneously represented defendant in Family Court. On August 10, 2010, defendant was again substituted pro se for this attorney on consent. The attorney had moved by order to show cause, dated August 13, 2010, to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel to wit: the counsel unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant seeks to now have the court appoint her another attorney. The counsel represented the defendant in an all-day temporary custody hearing on October 7, 2010, before this court. The court after the hearing awarded temporary custody of the infant issue to the father. He is the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence; on one occasion he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were “no prior applications” for an order of protection notwithstanding the present application in this matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on November 17, 2010. That hearing was adjourned so the counsel could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and not informing him of her intent to do so. On November 22, 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

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This is a contested matrimonial action before the Supreme Court of the State of New York.

On 6 January 2010, the plaintiff, the husband moved by order to show cause and prayed for an order directing the return of their two children, A, age 7, and M, age 4, to New York State, for an order awarding the him temporary custody of their children, and for an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

On 9 April 2010, the wife opposed the husband’s application and cross moved by order to show cause and prayed for an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for her to commence a custody proceeding in California, and for an order directing her husband to pay all costs associated with Court appearances, including but not limited to, transportation costs including airfare, car rentals, hotel costs, and daycare.

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This was a case before the Supreme Court of the State of New York in Kings County.

It involved a Notice of Motion, Order to Show Cause, Petition and Cross Motion where the court was called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel were properly before the court; (3) whether or not the defendant was entitled to a 30 day stay of all proceedings in the event counsel was relieved pursuant to CPLR 321(c); (4) whether or not the defendant was entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have had the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

The counsels of defendant’s application to be relieved:

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This is an appeal brought before the Supreme Court on the issue of whether Domestic Relations Law § 72, New York’s grandparental visitation statute, is unconstitutional on its face in light of the decision of the United States Supreme Court in Troxel v Granville (530 US 57). The court granted the motion and “deemed” the statute to be unconstitutional. The court ruled that the statute is not facially invalid.

The petitioner, a grandparent, commenced this proceeding pursuant to Domestic Relations Law § 72 to obtain visitation with his 15 minor grandchildren.

The respondents are the grandchildren’s parents (the parents).

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This is a proceeding pursuant to Social Services Law § 384-b to terminate parental rights of the natural father. The petitioner, Little Flower Children’s Services, appealed from an order of the Family Court, Kings County dated 22 September 1993, which dismissed the petition. The court affirmed the order, without costs or disbursements.

On 4 December 1985, SG, the subject child in this termination of parental rights proceeding was born.

Sometime in November 1987, when SG was less than two years old, the Commissioner of Social Services removed SG from her mother’s care because of her mother’s drug use, and placed the child with her maternal aunt. SG has remained in her maternal aunt’s home since her initial placement over six years ago, and SG’s mother has voluntarily surrendered her parental rights to the child.

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A couple was married on August 21, 1975. They had two children from that marriage. K born July 16, 1976 (13) and A born June 25, 1978 (11). Mr. H and Mrs. C were divorced on April 3, 1985 and both children presently reside with their natural mother, respondent, Mrs. C. H then married petitioner M on June 8, 1986. They also have two children: AY born April 8, 1987 (2) and IY born September 29, 1988 (1). Petitioner, M also has a child from a prior marriage, N born December 18, 1980 (9), who resides with her, Mr. H, AY and IY.

According to the terms of the April 3, 1985 judgment of divorce which incorporated a separate agreement entered into by C and H, C, was granted custody of the two children, K and A, while H was granted visitation rights. On more than one occasion, H violently assaulted Mrs. C resulting in numerous Orders of Protection from the Kings County Family Court. C thereafter brought an Order to Show Cause in October 1988, inter alia to suspend visitation by H. In this Order to Show Cause, the request was made for a temporary restraining order restraining H from undertaking visitation. This T.R.O. was stricken by Justice MS when the Order to Show Cause was signed. However, the Appellate Division reinstated this T.R.O.

The motion came to be heard before Judicial Hearing Officer DC. After a hearing J.H.O. DC rendered a decision on June 30, 1989, stating that there is no question that defendant, [Mr. H] did violently and viciously attack and severely bruise and injure the plaintiff Mrs. C in the presence of his children who were struck several times.

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