Divorce

Published on: June 10, 2016

Father Faces Consequences for Violating Custody Order

by Stephen Bilkis

The petitioner and respondent are the parents of a nine (9) year old child. The parties obtained a judgment of divorce in New Jersey on June 13, 2003 and, on consent, were awarded an order of joint legal custody for the child.

The father filed a violation petition and a petition for modification of the custody order on April 25, 2007. The father was seeking a specific and expanded visitation schedule. By stipulation the parties resolved the visitation issues between them prior to trial.

The mother had filed a petition to modify the custody order to provide for sole legal custody of the child on May 6, 2008. A trial was conducted in Kings County Family Court for the sole purpose of determining whether the existing order of joint legal custody should be modified to award sole legal custody to the mother.

Published on: June 9, 2016

Court Discusses Equitable Distribution of Assets

by Stephen Bilkis

In this family case, the parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the 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, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at A university.

The husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and 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.

Thereafter, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

Published on: June 8, 2016

Mother Brings Appeal in Neglect Proceedings

by Stephen Bilkis

The appellant (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the New York City Administration for Children’s Services (hereinafter ACS) filed petitions in the Family Court, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their non-respondent father and his mother (the children’s paternal grandmother), with whom the father lived.

On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1½ years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.

The question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, we find that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.

Published on: June 6, 2016

Court Decides if Children Should Remain in Foster Care

by Stephen Bilkis

The question presented by the instant case is whether the evidence adduced on NYCCS’s direct case at the combined Family Court Act § 1027 hearing, for the child DD, and Family Court Act § 1028 hearing, for the children JJ and BB, establishes imminent risk sufficient to warrant the children remaining in non-kinship foster care during the pendency of these proceedings. In the Court’s view, that question must be answered in the negative since any possible risk to the children from the father can be mitigated by the issuance of a temporary order of protection and an order that the mother re-enter a domestic violence shelter and resume domestic violence counseling, as well as her participation in other recommended services.

This proceeding was initially commenced on June 3, 2010, when NYCCS filed petitions against respondent mother and respondent father pursuant to Article 10 of the Family Court Act. The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children and both parents failed to ensure that the school-aged children attended school regularly.

Upon the filing of the petition, the court granted NYCCS’s request for a removal of the children and directed that they be restrictively placed with the maternal grandmother. In addition, the court entered a temporary order of protection against the father. That order directed the father to refrain from committing any family offenses against the children or the maternal grandmother and stay away from them except for visitation supervised by the grandmother or the agency.

Published on: May 21, 2016

Wife Claims Husband Causes Her Undue Stress

by Stephen Bilkis

In this family case, the parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the 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, remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at A university.

The husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and 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 Manhattan Family Lawyer said that hereafter, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.

Published on: April 30, 2016

Social Services Brings Child Neglect Case Against Grandmother

by Stephen Bilkis

In a neglect proceeding pursuant to Family Court Act. Article 10, the maternal grandmother appeals from an order of the Family Court, Kings County, dated April 7, 2009, which suspended her visitation with the subject child and directed the Administration for Children’s Services to instruct the subject child’s school not to provide any information to her or allow her access to the subject child. Assigned counsel has submitted a brief in accordance with one case decided by the court, in which he moves to be relieved of his assignment to prosecute this appeal.

In child protective proceedings, the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect”. Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected.

The appeal from so much of the order as suspended visitation between the maternal grandmother and the subject child must be dismissed as academic because that portion of the order has been superseded by a permanency hearing order dated June 11, 2009, awarding the maternal grandmother visitation with the subject child in accordance with the permanency plan.

Published on: April 29, 2016

Father Requests Return of Children

by Stephen Bilkis

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.

Published on: April 28, 2016

Mother Appeals Ruling Terminating Her Parental Rights

by Stephen Bilkis

This is a motion brought before the Appellate Division of the Supreme Court of the State of New York, Second Department, by the respondent on appeals from two orders of fact-finding and disposition of the Family Court, Kings County, (one as to each child), both dated 9 June 2006, inter alia, to amend a decision and order of the Court dated 30 October 2007.

The court denied the motion, based upon the papers filed in support of the motion but ordered granted that branch of the motion which was to amend the decision and order. Thus, the decision and order of the Court dated 30 October 2007, in the above-entitled matter was recalled and vacated. The following decision and order was substituted.

The case:

Published on: April 21, 2016

Defendant Requests Clarification on Final Divorce Decree

by Stephen Bilkis

In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.

By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:

“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.

Published on: April 20, 2016

Husband and Wife Embroiled in a Custody Battle

by Stephen Bilkis

In an action for divorce, defendant husband appeals from so much of a judgment of the Supreme Court, dated December 23, 1981, as (1) granted custody of the parties’ child to plaintiff wife; (2) directed defendant to provide for plaintiff’s psychotherapeutic assistance in the event that plaintiff cannot provide for it herself; (3) directed defendant to pay plaintiff’s legal fees in the sum of $2,750; and (4) set forth a schedule of visitation. Plaintiff cross-appeals from so much of the same judgment as (1) ordered that if she interferes with defendant’s visitation without proper cause, the issue of custody will be reviewed; (2) provided for defendant’s visitation rights including overnight visitation; (3) provided that defendant’s obligation to pay alimony and child support was dependent upon defendant being permitted visitation; and (4) granted only $2,750 in legal fees.

Judgment modified, on the law, by deleting the provision which directed defendant to provide for plaintiff’s psychotherapeutic assistance in the event that plaintiff cannot provide for it herself. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In determining a question of child custody, a court must weigh various factors and policies in order to ascertain what is in the child’s best interests. On appellate review, the finding of the nisi prius court must be accorded the greatest respect and should not be set aside absent sufficient articulable reasons. Based upon our review of the record before us, we find no basis for setting aside the determination here.