New York Family Law Blog

Published on: October 12, 2016

In the Matter of Brooke, Respondent v. Elizabeth A.C.C. Respondent

by Stephen Bilkis

This case calls on the court to assess the continued fairness of a rule discussed originally in a case known as the Matter of Alison D in Virginia (77 NY 2d 651 [1991]/ Where an unmarried couple has a child, and one partner doesn’t have a biological connection to the child. This affects the child’s parent in terms of standing to seek custody and visitation pursuant to Domestic Relations Law section 70 (77 NY 2d 655). The petitioners seek custody and visitation in the present case. The court agrees that the definition of a parent as established in the older case has now become unfair.

The Petitioner and Respondent were involved in a romantic relationship back in 2006 and subsequently announced their engagement. It was only just a gesture because legally at the time the couple could not get married. Same-sex marriage was not legal in New York, and they did not have the resources to travel out of state.

They decided to have a child together. In 2008, the respondent became pregnant via artificial insemination. The Petitioner was involved throughout the pregnancy. They raised the child jointly as a couple. However, in 2013, their relationship ended.

Published on: October 8, 2016

J.F. v. Superior Court (2016)

by Stephen Bilkis

No: GO53597 Fourth Dist. Division Three

This case is an appeal by the mother of a three-year-old child, and the Social Services Administration (SSA). The mother’s petition for a Writ of Mandate from an order terminating reunification services and setting a Welfare Institutions hearing pursuant to code section 366.

Allegations

Published on: September 27, 2016

New York Court Rules that Parental Eavesdropping on Kids is Legal

by Stephen Bilkis

People v. Badalamenti

NY Slip Op 02556

The highest court in New York has held that parents can legally eavesdrop on their children if they believe that it is in their best interests. This ruling by the New York State Supreme Court established an exception to existing wiretapping without consent laws.

Published on: September 24, 2016

Appellate Court Holds that Substantive Evidence Required to Prove Neglect Allegation

by Stephen Bilkis

In Re: T.G. a Minor Allegedly Neglected by P.G. – No. NN-20507/15

This matter came to the court on inquest after the respondent failed to appear on three different occasions. The petition alleges that the respondent neglected her child and failed to provide proper guardianship and supervision.

In a child neglect case, the petitioner is required to prove by a preponderance of material and relevant evidence that the subject child’s emotional, physical and mental well-being was impaired (FCA 1046 (b)(1). It must also be proven that the harm to the child was directly caused by the respondent’s failure to provide a minimum degree of care (Nicholson v. Scopetta, 3 NY 3d 357, 368 (2004).

Published on: August 15, 2016

Defendant is Charged with Endangered with the Welfare of a Child

by Stephen Bilkis

The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and two counts of Public Lewdness, in violation of Penal Law § 245. It is alleged, in sum and substance, that on March 15, 2008, at approximately 2:10 p.m. and 2:40 p.m., in a public men’s room at the Mall, the Defendant “did expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.”

A lawyer said that the Defendant was allegedly identified by the boy and held by Mall security until the police arrived following their notification. The Defendant was placed under arrest, at approximately 3:20 p.m. on the date of the alleged incident outside and escorted to a police substation on the Mall’s lower level by two Nassau County Police Officers. At approximately 4:15 p.m., following questioning by a Nassau County Detective, the Defendant signed a three and one-half page statement regarding the alleged events.

The Defendant challenges the admissibility of this statement with a three prong attack. The Defendant alleges that the statement was the result of a custodial interrogation and that he was never advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). In the alternative, the Defendant argues that, even if he was advised of his rights, he was unable to make a knowing, intelligent and voluntary waiver thereof due to the fact that he suffers from an obsessive compulsive disorder (“OCD”) which, combined with the effects the arrest and interrogation procedures had on his condition, prevented him from comprehending these rights. Pursuant to stipulation of the parties, on July 29, 2009, July 30, 2009, August 12, 2009, October 1, 2009 and November 5, 2009 the court conducted a hearing pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965) regarding the voluntariness of statements attributed to the Defendant following his arrest on March 15, 2008.

Published on: August 14, 2016

Deed Claimed Invalid During Divorce Hearing

by Stephen Bilkis

On August 31, 1992, the couple were in the process of buying a home. The husband’s father, a wealthy and successful entrepreneur, decided to help his son, daughter-in-law, and their young children in moving into the home. The husband’s father arranged a $47,000 transfer to the couple through an entity identified as the retirement plan corporation. There is no evidence before this court on how the money was advanced. There is no check from any bank account evidencing the advance of funds from corporation to the couple. At the time the father-in-law advanced the funds, he had the couple sign a mortgage on the house they were acquiring. The interest rate on the mortgage was one per cent.

For five years, the annual payment was never made. There is no evidence that the father-in-law sought payment of the annual amount from his son or daughter-in-law.

In 1997, the couple wanted to move and needed additional funds to do so. In another generous gesture, the husband’s mother advanced an additional $100,000 to her son and daughter-in-law top facilitate their purchase of a second home. The mother-in-law requested that the couple sign a mortgage for $100,000.

Published on: August 13, 2016

Defendant Father Requests Hospital Records in Light of HIPPA Laws

by Stephen Bilkis

There are several issues currently pending before the Court in this mid-fact-finding Family Court Act article 10 proceeding. The first issue is whether to grant the motion of respondent father-person legally responsible (hereinafter, “respondent father”) to compel the production of the subject child, Lizmarie B.’s, post-incident hospital records, despite her opposition and refusal to execute a HIPAA release. The second issue is whether to grant the motion of the Administration for Children’s Services (hereinafter, “ACS”) to admit the criminal record of respondent father, over his objection. The third is whether to grant the motion of ACS for reargument or renewal of the Court’s July 28, 2008 order and decision, based on actions of respondent mother that took place “subsequent to when this court was rendering its decision regarding this matter during the summer months of 2008.” The attorney for the two older children supports the motion for reargument or renewal, which is opposed by respondent mother and the attorney for the younger children. For the reasons set forth herein, the first two motions are granted and the third is denied.

Valerie B. (hereinafter “respondent mother”) and Leocadio B. Sr. (hereinafter “respondent father”) are the parents of two of the subject children, Leocadio B. Jr., born January 1, 2000 and Andrea B., born January 1, 1998. The other two children, Lizmarie B., born May 25, 1989 and Jasmine B., born July 9, 1993, are the nieces of the respondent father.1 On November22, 2006, at approximately 1:00 AM, ACS removed the subject children Lizmarie and Jasmine B. from the care of the respondents without a court order pursuant to Family Court Act §1024.

On November 22, 2006, ACS filed petitions against both respondents. The petitions allege that respondent father raped the subject child Lizmarie on November 20, 2006 after watching a pornographic film with her and that he had raped her once before in February 2005. In addition, the petitions allege that respondent mother failed to provide adequate care and supervision for the children Leocadio Jr. and Andrea by allowing respondent father to leave the home with the children after she learned that he had sexually abused Lizmarie. Finally, the petitions allege that Jasmine, Andrea and Leocadio Jr. are derivatively abused and neglected children by virtue of the abuse of Lizmarie.2 On the day the petitions were filed, Hon. Anne Feldman granted the request of ACS for a remand of all of the children. The subject children Leocadio Jr. and Andrea were removed at approximately 9:00 PM, pursuant to the court-ordered remand.

Published on: August 12, 2016

Court Decides Authority of Probation Officers

by Stephen Bilkis

In this proceeding pursuant to Article 78 of the CPLR, the petitioners, Probation Officers with permanent status in the Nassau County Probation Department, question the authority of the respondent, as the State Administrator of the Judicial Conference of the State of New York to exercise jurisdiction over the examinations for positions in the Probation Department and the reasonableness of the eligibility requirements fixed by him for the promotion examination that was to be conducted on November 18, 1967 for the position of Supervising Probation Officer.

Specifically, petitioners urge: that the Nassau County Probation Department is not a part of the unified court system of the State of New York; that the reduction in eligibility requirements for candidates from those specified in Exhibit B (Nassau County Civil Service Commission notice of examination dated December 15, 1962) to those specified in Exhibit A (announcement for written test on November 18, 1967 of Administrative Board of the Judicial Conference) so that persons with less experience and training would be eligible, would result in placing supervision in the hands of persons who were not qualified, and would increase from 36 to 80 the number of probation officers eligible to take the examination.

Examination of the papers submitted and of the law satisfied the Court that the Administrative Board has jurisdiction over the subject matter and that it was not unreasonable for it, through its administrator, to adopt the requirements for the position as revealed in Exhibit A.

Published on: August 11, 2016

Court Discusses Mechanic’s Lien Law

by Stephen Bilkis

This is a family case commenced on February 25, 2005 by the filing of a Summons and Complaint in the Supreme Court of Nassau County setting forth two causes of action against the Defendant sounding in breach of contract and an account stated, and a third cause of action against all Defendants seeking to foreclose a mechanics lien filed by the Plaintiff on a real property. The Plaintiff filed a Notice of Pendency with the Nassau County Clerk at the same time.

Legal counsel said that the issue was joined with the Defendants on or about September 26, 2005. None of the other Defendants have appeared or answered herein; and, the Plaintiff advises that a money judgment has been submitted to the Clerk of the Court as to the Defendant. The Plaintiff originally moved for summary judgment on its third cause of action in the Supreme Court of Nassau County.

The Defendants opposed the motion. Following submission of the motion this matter was transferred to the District Court of Nassau County, pursuant to CPLR § 325(d). The papers previously submitted, both for and against the Plaintiff’s motion, have now been submitted to this court.

Published on: August 10, 2016

Petitioner Seeks Assistance with Section 8 Subsidy

by Stephen Bilkis

In this Article 78 proceeding, it is undisputed that petitioner, who had received a Section 8 rent subsidy, did not submit her annual income certification documents, and that respondent New York City Housing Authority terminated petitioner’s Section 8 rent subsidy. Petitioner then wrote to the agency, asking it “to give her family a chance,” and to “Please inform me & my family what we can do to fix my situation.” Petitioner challenges the agency’s determination denying petitioner’s request.

Respondent Rhea and the New York City Housing Authority (collectively, NYCHA) cross-move to dismiss the Article 78 petition as time-barred. Petitioner opposes the motion. NYCHA argues that petitioner’s request was merely a request to restore her subsidy; petitioner argues that the request sought to reopen her default.

NYCHA must follow certain procedures to terminate Section 8 assistance, which were established in a First Partial Consent Judgment entered into on October 4, 1984 in Williams v. New York City Housing Authority.