domestic violence

Published on: December 1, 2024

Court vacated family offense and protection orders after default. Gastaldi v. Gastaldi, 2015 N.Y. Slip Op. 882 (N.Y. App. Div. 2015)

by Stephen Bilkis

A New York family offense order of protection is a legal directive issued by the Family Court to safeguard individuals from abuse or harassment by a family member or someone with a close relationship. It is available in cases involving allegations of domestic violence or family offenses such as assault, harassment, stalking, or threats. The order may require the respondent to stay away from the petitioner, cease abusive behavior, vacate a shared residence, or surrender firearms. Violations of an order of protection are taken seriously and can lead to criminal consequences. It is a tool to ensure safety and peace

In family law, orders of protection are issued to ensure the safety of individuals who may be at risk of harm. However, the process of obtaining such orders must follow procedural rules to ensure fairness for all parties involved. In Matter of Gastaldi v. Gastaldi, the Family Court was asked to review whether a prior decision, entered in the absence of one party, should be vacated to allow both sides the opportunity to present their cases.

Background Facts

Published on: September 8, 2024

Court found sister violated protection order through harassment and menacing but removed residence exclusion. Nicholas A. v. Lillian A., 175 A.D.3d 1205 (N.Y. App. Div. 2019)

by Stephen Bilkis

Disputes between family members can escalate to the point of requiring legal intervention. In Nicholas A. v. Lillian A, the Family Court addressed allegations of harassment and menacing between siblings sharing a residence.

Background Facts

The petitioner, the brother, had previously obtained an order of protection against his sister from the Family Court. This order was issued following allegations of family offenses, including harassment and menacing. Despite the order, the petitioner claimed that the sister continued to engage in threatening and harassing behavior, prompting further legal action.

Published on: September 6, 2024

Father found to have neglected his children due to them witnessing his abuse of their mother. In re Jayline J., 156 A.D.3d 701, 64 N.Y.S.3d 916 (N.Y. App. Div. 2017)

by Stephen Bilkis

Domestic violence cases commonly involve violence between intimate partners, with one partner assaulting the other. While one victim is always the person who has been directly physically abused, other victims can include any children who witness the abuse. In the case of In re Jayline J., 156 A.D.3d 701, 64 N.Y.S.3d 916 (N.Y. App. Div. 2017), the Administration for Children’s Services (ACS) initiated a neglect proceeding in Family Court, Queens County, against a father, alleging that he had neglected his child by exposing her to domestic violence. After a fact-finding hearing, the court ruled that the father had indeed neglected the child. The father appealed the ruling, disputing the findings. This case presents an examination of the standard for proving neglect under New York law and how domestic violence can impact a child’s well-being.

Background Facts

In March 2015, ACS brought an action against the father, accusing him of neglect. According to the allegations, the father subjected the child’s mother to domestic violence in the presence of the child. Under New York law, exposing a child to domestic violence can constitute neglect if it leads to harm or imminent risk of harm to the child’s physical, mental, or emotional condition.

Published on: February 7, 2024

Court considered the right of the ACS supervise a non-offending parent. In re Danna T., 2024 N.Y. Slip Op. 24008 (N.Y. Fam. Ct. 2024)

by Stephen Bilkis

In New York, the Administration for Children’s Services (ACS) plays a crucial role in safeguarding children who are victims of abuse or neglect by their parents or caregivers. ACS is tasked with investigating reports of child maltreatment and ensuring the safety and well-being of vulnerable children. When allegations of abuse or neglect arise, ACS conducts thorough investigations to assess the risk to the child and determine the appropriate course of action.

ACS works closely with law enforcement, medical professionals, and other relevant agencies to gather evidence and make informed decisions regarding child welfare. If ACS determines that a child is in imminent danger, they have the authority to intervene and remove the child from the home to ensure their safety. In cases where removal is necessary, ACS provides temporary placement for the child and works to establish a plan for their long-term care.

Furthermore, ACS offers various supportive services to families in need, including counseling, parenting classes, and substance abuse treatment, with the goal of reunifying families whenever possible. However, ACS prioritizes the safety and well-being of the child above all else, and if reunification is not feasible or safe, they pursue alternative permanent placement options, such as adoption or guardianship. Through its efforts, ACS strives to protect and advocate for the rights of children who have experienced abuse or neglect.

Published on: September 25, 2023

Father failed to show changed circumstances such that a custody modification would be appropriate. James v. Tammy, 45 A.D.3d 1358 (N.Y. App. Div. 2007)

by Stephen Bilkis

James v Tammy involves one parent petitioning the court for a change in the child custody arrangement due to a change in circumstances. In New York, a change of circumstances, as a prerequisite for custody modification, necessitates a substantial and material shift affecting the child’s well-being. Courts scrutinize alterations in factors like parental fitness, living conditions, or the child’s best interests. Mere routine adjustments may not suffice; the change must be of such significance that modifying the existing custody arrangement becomes imperative to safeguard the child’s welfare. This stringent standard ensures that custody modifications align with the paramount consideration of the child’s stability and best interests.

Background

James v. Tammy revolves around a post-divorce custody dispute. The custody arrangement was that Tammy, the mother, had primary custody for the child and James, the father, had visitation. In addition, Tammy relied on James for childcare, so James got to spend time with thei child in addition to visitation. However, when the mother moved, she no longer relied on James for childcare. Based on Tammy’s moving and no longer relying on him for childcare, James sought a modification of the existing custody arrangement, asserting a substantial change in circumstances. The Family Court denied James’s petition for a change in custody. James appealed.

Published on: December 28, 2022

Family Court dismissed case because the parties did not have a family or intimate relationship. Coleman v. McKenzie, 2022 N.Y. Slip Op. 50514 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In New York, Family Court can only adjudicate matters that involve people in “familial” relationships. Generally, familial relationships are blood relationships, marriage relationships, and intimate relationships. Note that an intimate relationship does not have to be a sexual relationship. However, it does need to be more than a casual friendship. The purpose of a family court proceeding, pursuant to Article 8 of the Family Court Act, is to allow a petitioner the opportunity to seek help for the offending family member instead of subjecting the family member to the potential punishment that would be imposed by a criminal court. In Coleman v. McKenzie, the court was asked to decide if a relationship amounts to a “familial” relationship as contemplated by Article 8 of the Family Court Act.

Background

On December 30, 2021, the petitioner filed a petition in Family Court requesting a final Order of Protection against respondent. In response, the respondent argued that the court should dismiss the petition because the Family Court lacked subject matter jurisdiction over this matter because a familial connection did not exist between the petitioner and the respondent. CPLR § 3211 (a)(2). The petitioner responded that that the petitioner and the respondent are “like family,” and therefore have a relationship that satisfies the requirements of Article 8 of the Family Court Act.

Published on: October 3, 2022

What impact should domestic violence have on a custody determination? Wissink v. Wissink, 749 N.Y.S.2d 550 (App. Div. 2002)

by Stephen Bilkis

In Wissink v. Wissink, there was conclusive evidence that the father physically abused the mother. However, there was also conclusive evidence that the father never physically abused the daughter and that the daughter wanted to live with him. The issue that the Appellate Division considered was the impact of a finding of abuse should have on a determination of custody?

Background

Defendant David Wissink and Plaintiff Jane Wissink were married and have a teenage daughter named Andrea, born on June 21, 1986. She is the biological child of the Jane and David. Jane also has a daughter, Karin, by a prior marriage. The parties have had a turbulent relationship marked by numerous episodes of physical violence, police intervention, and Family Court orders of protection. It is clear that David frequently battered Jane. However, he never directly mistreated Andrea, and Andrea favored him over her mother.

Published on: September 14, 2022

A family court can grant a protection order prohibiting a minor from contacting a child, even though the minor is too young for criminal prosecution. Emily K. v. Luis J., 997 N.Y.S. 2d 510 (2014)

by Stephen Bilkis

In New York, a family court proceeding, pursuant to Article 8, allows a petitioner, the opportunity to civilly address an action that would otherwise be a crime. A family court proceeding under Article 8 is entirely different from a criminal prosecution for the same types of allegations, or even the exact same incident. However, in a criminal prosecution, the case is brought by the District.

Background

Luis J., and the petitioner’s daughter were each 13 years old when the petition was filed. They had been in an on-and-off dating relationship for several years. The two were classmates in kindergarten and had an intermittent boyfriend-girlfriend relationship from fifth to eighth grade. Initially, the relationship involved handholding, kissing, texting, and phone calls. The daughter testified that by sixth grade, Luis J. was texting or calling several times a day and has become jealous, controlling, and isolating.

Published on: January 17, 2012

An Unexpected Turn in the Dugard Kidnapping Case

by Stephen Bilkis

As people gathered into the courtroom at Placerville, CA, there was an anxious anticipation that the convicted sex offender and his wife would plead guilty to the June 1991 kidnapping of an 11-year old girl. The kidnapping that had occurred on a South Lake Tahoe street as the girl was walking to a school bus stop and would capture the attention of a nation, would not conclude so unceremoniously. Once all of the participants were in the courtroom, lawyers for both of the defendants entered pleas of not guilty for their clients. The people in the courtroom were stunned since there was widespread anticipation that a plea had been struck that would send the convicted sex offender to prison for the rest of his life.

The couple had been charged with the alleged kidnapping, rape, and imprisonment of 11-year old Jaycee Dugard, who they held captive for 18 years. At 14-years of age, the young Dugard had been forced to give birth to the accused couple’s daughter and another daughter when Dugard was 17. Sources have also told a New York Family Lawyer that it was sheer luck that authorities were able to catch the couple and reunite Dugard with her family.

The couple’s arrest is a result of an alert University of California at Berkeley campus police officers who became suspicious of the man and ran a background check on him. As a result of that check, they learned that he had a prior record for kidnapping and rape in Nevada. They would then inform the man’s parole officer who had no clue that the man had a daughter and instructed him to come into his office for a meeting. The man brought everyone with him to that meeting, including the girl that he kidnapped. The now 30-year old Jaycee Dugard was reunited with her family the following day.

Published on: June 15, 2011

Woman accused of setting boyfriend on fire denies charges, cites New York City Family Lawyer

by Stephen Bilkis

A 40 year old woman has been accused of dousing her boyfriend with nail polish remover in an argument and lighting him on fire, according to reports by a New York Family Lawyer. The woman’s 10 year old son and the couple’s small daughter were reportedly present in the house at the time of the incident.   Neighbors called police when they heard an argument escalate into screams of pain. Police arrived on the scene to find the man seriously burned, and blaming his girlfriend. The 44 year old victim alleges that his girlfriend was angry about his drinking, which started the argument that led to the incident in question.   The woman denies lighting her boyfriend on fire, claiming that it was he who doused himself with nail polish remover and set his clothes alight, accusing her of the crime, reports the N York Family Lawyer. Neighbors who live in the building expressed surprise and shock when they heard about the incident, saying that they had heard the couple argue on numerous occasions but had never expected that violence would erupt in the apartment.   A judge ruled the woman to stand trial and has place her under arrest with $200,000 bail. The two children were taken into custody and have been placed in foster care and they are undergoing evaluation, stated the New York Family Lawyer. More information on this case will be released pending further investigation. A trial hearing had been set for January 12 and results of that hearing are as yet unavailable.   Domestic abuse is often a precursor to legal disputes within a family unit.

If you find yourself in a dangerous or questionable situation, needing consultation or legal advice, call a N York Family Attorney to find out what your rights are. do not let a bad situation escalate into a criminal case. Call a respected New York Family Attorney today.

The firm of Stephen Bilkis & Associates with convenient locations thorughout the Metropolitan Area, including servicing Arverne, N.Y., can be of invaluable assistance to you if you find yourself a party to a case. Facing the Court without professional representation could lead to disastrous results.