New York Family Law Blog

Published on: June 13, 2016

Wife Files for Divorce Based on Cruelty and Nonsupport

by Stephen Bilkis

In an action by an infant wife for separation on the grounds of cruelty and nonsupport, in which the defendant husband asserted a counterclaim for separation on the ground of abandonment, a judgment was entered in the Supreme Court, on May 18, 1959, after trial, in favor of the defendant, dismissing the complaint, granting him a separation on his counterclaim, awarding custody of their child to plaintiff, with visitation rights to the defendant, and directing the defendant to pay plaintiff $35 per week for the child’s support.

By order dated June 24, 1959 such judgment was resettled so as to define specifically defendant’s visitation rights. By order dated July 10, 1959 such judgment was amended by adding three provisions: (1) enjoining plaintiff from taking the child out of the City of New York; (2) directing plaintiff to make the child available to the defendant during the periods prescribed for his visitation; and (3) suspending defendant’s obligation to make payments for the support of the child in the event that, and as long as, plaintiff should frustrate defendant’s visitation rights by keeping the child out of said City.

The plaintiff by her guardian ad litem now appeals from an order of the Supreme Court, which, inter alia: (1) denied her motion for a counsel fee and expenses to prosecute her appeal from said resettled amended judgment and for an award of $35 a week for the child’s support during the pendency of such appeal; (2) granted defendant’s motion to award custody of the child to him, to hold plaintiff in contempt for violating the judgment with respect to defendant’s visitation rights, and to stay plaintiff from all proceedings (excepting appeals) as long as she continues to violate said judgment and the order appealed from; and (3) further modified the resettled amended judgment by awarding custody of the child to defendant, by prescribing plaintiff’s visitation rights and by enjoining plaintiff from taking the child out of said City.

Published on: June 12, 2016

Mother Charged with Neglect of Three Children

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 11, 2016

Court Decides if it is Appropriate to Remove Child from Non-Kinship Care

by Stephen Bilkis

A New York Family Lawyer said 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: 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: May 20, 2016

Petitioner Files For Custody of Infant

by Stephen Bilkis

The petitioner Spouses filed a custody petition for a baby on April 26, 2004. Named as respondents are the unidentified birth parents, and the Children’s Services. The latter has had temporary custody of the baby since March 1st when a neglect petition was filed against the parents, alleging that the baby, then about two days old, had been found abandoned in a building hallway on February 24, 2004, and that neither parent had come forward to claim the rights and responsibilities of parenthood.

This court held a fact-finding hearing on April 28 and found that the unidentified parents neglected and abandoned the baby, as defined in Family Court Act § 1012. The court learned on the same day that the spouses had petitioned for custody. Based on a favorable report indicating that the spouses, both of whom are New York Police Department (NYPD) sergeants, have a safe home, and have raised their own children satisfactorily, the court granted them temporary visitation and adjourned the dispositional hearing in order to receive additional information regarding the baby’s foster home and the petitioner’s visitation.

Shortly thereafter, the children services moved to dismiss the custody petition, arguing that they lacked standing to seek custody of the baby, to whom they are not related and who has never lived with them. The Children Services also sought to vacate the order permitting the spouses to visit.

Published on: May 19, 2016

Mother Seeks Temporary Child Custody

by Stephen Bilkis

A New York Family Lawyer 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.

A New York Custody Lawyer said 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.

A Kings County Child Visitation Lawyer said that, 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.