New York Family Law Blog

Published on: August 4, 2016

Court Hears Condemnation Proceeding

by Stephen Bilkis

In this family case, a condemnation proceeding is the just compensation to be awarded to claimant, for the taking of several parcels of property located in Queens County. The condemnee, took title to the subject parcels on February 29, 1996, for the creation of a Park. The court viewed the property on April 27, 2006 and this non-jury trial took place on July 12, 14, 17 and 18, 2006.

In its Appraisal Report dated June 30, 2005, claimant values the property at $10,000,000. In so finding, it determines that the total lot area of the subject property is 877,304 square feet; the majority of it is underwater, with additional property located within paper streets, i.e., streets that are mapped but are not physically improved. Claimant describes the property as being relatively level and located in Malba, “a prime area” that is “an upscale community that includes several waterfront mansions,” consisting of predominantly residential uses, including one- and two-family homes and several complexes of attached row houses. Albert further notes that approximately 88% of the land in the area is improved with residential structures, of which 75% are one- and two-family homes, 8% are walk-up apartment buildings and 5% are condominiums and elevator buildings.

In reaching its valuation, the evaluator adopts the findings of the claimant’s zoning expert, who relies upon the opinion of a licensed architect, who concludes that the paper streets could be demapped.

Published on: August 3, 2016

Court Rules on Child Neglect Proceeding

by Stephen Bilkis

In a child neglect proceeding brought pursuant to Family Court Act article 10, the parties stipulated to have the Nassau County Department of Probation investigate the underlying circumstances relating to the alleged child neglect and to thereafter issue a report, including its recommendations. The parties further agreed to allow the court to use the Probation Department’s report “to aid it in rendering a decision” in the matter.

The Probation Department, which was not a party to the stipulation, produced a report which did not, however, contain any recommendations. By order dated April 30, 1984, then Family Court Judge PC, before whom the proceeding was pending, directed the Probation Department to make a definite recommendation. When the Probation Department informed Judge PC that it did not consider it appropriate for it to make recommendations prior to the court’s making of a finding of neglect, Judge PC reiterated her order. The Probation Department thereupon commenced the instant proceeding in the Supreme Court to annul Judge PC’ order, to prohibit its enforcement, and to obtain a declaration that Family Court Act §§ 1047 and 1048 preclude it from furnishing reports to the Family Court prior to completion of a fact-finding hearing. Judge PC cross-moved to dismiss the petition, inter alia, on the ground that a CPLR article 78 proceeding in the nature of prohibition is not available to obtain the relief sought.

Initially, appellant (Judge PC) raises the question as to whether a CPLR article 78 proceeding is the appropriate vehicle to challenge the Family Court’s direction since prohibition is an “extraordinary remedy” that is available against a court only when it acts without jurisdiction or exceeds its authorized powers. Purported errors of law, which are not properly reviewable by a CPLR article 78 proceeding in the nature of prohibition, are often incorrectly asserted to have been made in excess of jurisdiction

Published on: August 2, 2016

Respondent Claims Family Court Lacks Jurisdiction

by Stephen Bilkis

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.”

Published on: August 1, 2016

Court Decides Neglect Case

by Stephen Bilkis

The Presentment Agency moves, pursuant to a motion for summary judgment, for an order adjudging an after-born child to be permanently neglected, upon the ground that the parents of the two older siblings of the after-born child have previously been adjudicated unable to provide proper and adequate care for them.

The facts of the case is as follows: On March 27, 1998, the two older children of the parties, SH and MH, ages four years and two years respectively, were removed by Nassau County DSS and an application for return pursuant to FCA §1028 was filed by the parents. The Court tried that matter from April 24, 1998 through May 8, 1998, resulting in a denial of the application to return.

Thereafter, the fact finding hearing concerning the two older children was commenced on August 31, 1998 and did not conclude until May 7, 2001. The reason for the lengthy hearing was that counsel for one of the parties had an extended illness, that the Mother had been committed to Pilgrim State Hospital for a long period of time and that the Father had been a voluntary resident at various times at the Northport VA Hospital, psychiatric unit.

Published on: July 28, 2016

Court Hears Disturbing Neglect Proceeding

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, counsel said 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.

Counsel said an 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: July 28, 2016

Mother Moves for Custody of Three of Her Children

by Stephen Bilkis

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.

Published on: July 26, 2016

CPLR 321 Covers Removal of Attorneys of Record in Family Law Proceedings

by Stephen Bilkis

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.

Published on: July 24, 2016

Family Law Case as a Result of Tragedy

by Stephen Bilkis

This family case arises out of the death of a decedent on August 25, 2003. Plaintiff, Administrator, husband of the decedent, brings this action for medical and psychiatric malpractice against a hospital and 3 doctors.

The medical and psychiatric history of the decedent, a 51 year old married woman at the time of her death, is as follows. Decedent gave birth to triplet daughters in 1982. After the birth of her daughters, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave.

On or about August 12, 2003, her daughter attempted suicide by taking “pills” after her friends’ drowning deaths. The husband testified at his deposition that Decedent also was depressed as a result of the children’s death and their daughter’s suicide attempt. On August 15, 2003, the child sought psychological care. She was accompanied by her parents to the appointment.

Published on: July 24, 2016

Court Discussed Domestic Relations Law Article 3A

by Stephen Bilkis

This is an appeal from an order of the Family Court of Ulster County, entered May 8, 1986, which granted petitioner’s application, in a proceeding pursuant to Domestic Relations Law article 3A, for an order directing respondent to pay child support.

Petitioner and respondent were married in 1950 and divorced in 1980. Pursuant to a separation agreement entered into in 1977, respondent agreed to pay $150 per week to petitioner and their two unemancipated children as support, such sum to be reduced by $25 as each child became emancipated. It is clear that respondent has failed to comply with this provision of the separation agreement, as petitioner was awarded a money judgment in Supreme Court in 1983 for support arrears.

Petitioner commenced this proceeding pursuant to Domestic Relations Law article 3A in 1984 in Nassau County Family Court. The petition and petitioner’s testimony were certified and transmitted to Ulster County Family Court, where respondent resided. Following a hearing in Ulster County Family Court and petitioner’s appearance in Nassau County Family Court to answer questions concerning her finances, Ulster County Family Court ordered respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages. It is from this order that respondent appeals.

Published on: July 12, 2016

Father Seeks Full Custody 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.