New York Family Law Blog

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.

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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.his 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.

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.

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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.

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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.

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The mother of the infant in this adoption proceeding commenced a writ of habeas corpus in Nassau County Supreme Court by a petition dated May 10, 1976 and returnable May 26, 1976. The Supreme Court, on the consent of all parties, treated the habeas corpus as an application by the mother to revoke her consent to the adoption of the child and referred the entire matter to this court where all prior proceedings had occurred and where adoption proceedings were then pending. The decision also directed the mother to serve a supplemental verified petition setting forth in detail ‘the basis upon which she claims she was unduly influenced and pressured to give her consent to the adoption.’

In early 1975, the mother, then almost 21 years old and a college student in Florida, became pregnant by an unidentified person other than her present husband, also a college student in Florida, whom she married in August of 1975. In July of that year, in anticipation of her marriage, she first sought an abortion but was informed that her pregnancy had progressed too far. She admitted that her husband would not have married her unless she had agreed to surrender the child for adoption since he did not wish to care for a child not his own and she agreed it was unfair to impose this upon him.

He was referred to an attorney in Miami, Florida and, through him, put in contact with a New York attorney who has represented the adoptive parents in this proceeding. On November 15, 1975, she flew to New York and was met at the airport by a nurse’s aide and housekeeper known to the adoptive parents but who told her she was acting on behalf of the New York attorney. She remained at the housekeeper’s home in Brooklyn until November 26 when the infant was born. During her first meeting with the New York attorney, she expressed at least two motives for proceeding with the adoption–her desire to devote more time to college and her fear of being unable to care for the child because of her relative youth.

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This action is based on allegations that the autopsy performed on the body of claimant’s son and a State prison inmate at the time of his death, was performed in violation of Public Health Law § 4210-c, a statute protecting those who have religious objections to autopsy or dissection. Defendant contends that the autopsy was required by County Law § 674(5) and that, in any event, the State cannot be held responsible for the procedure because it was performed by county officials.

In 1983, an inmate in the State prison system, was diagnosed as suffering from AIDS (Acquired Immune Deficiency Syndrome). Approximately two years later, he became seriously ill with an AIDS-related infection and, on December 10, 1985, was transferred from Greene Correctional Facility to Greene County Memorial Hospital. He died in the hospital shortly after midnight on December 22.

The inmate’s family was notified of his death at approximately 1:00 a.m. on the morning of December 22 by a telephone call from his treating physician. Claimant testified at trial that, after informing her of her son’s death, the physician asked if he could perform an autopsy. She said that she told him “No, according to the Jewish religion you’re not supposed to perform an autopsy.” The physician called again at approximately 8:00 a.m. and asked a second time if an autopsy could be performed. Claimant testified that she responded, “I told you that hours before, that you cannot perform an autopsy to a Jewish person–and he was religious.”

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