New York Family Law Blog

Published on: February 18, 2016

Court Grants Father’s Petition to Modify an Order for Visitation

by Stephen Bilkis

In a related visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County, dated November 30, 2012, as, after a hearing, in effect, granted his petition to modify an order of visitation dated January 14, 2010, only to the extent of awarding him supervised daytime visitation.

An order dated January 14, 2010, the Family Court awarded the father, who lives in Texas, unsupervised visitation with the subject child in New York, including overnight visitation during various school holidays. The only restrictions upon the father’s visitation were that a social worker would monitor exchanges of the subject child and would have to pre-approve any accommodations chosen by the father for overnight visitation. At one point, the Family Court modified the visitation order by suspending overnight visitation. However, on a prior appeal, this Court reversed that order of the Family Court, thereby effectively reinstating overnight visitation.

In October 2010, the father filed a petition to modify the order of visitation dated January 14, 2010 (hereinafter the January 2010 visitation order), so as to eliminate the involvement of a social worker in monitoring exchanges of the subject child and approving accommodations for overnight visitation. In opposing the father’s petition, the attorney for the child requested that any parenting time should be of short duration and at specific locations. The attorney for the child did not request supervised visitation. In an order dated December 7, 2010, the Family Court, in effect, denied the father’s petition to modify and granted the application of the attorney for the child to modify the January 2010 visitation order so as to limit the father’s parenting time to brief unsupervised visits at specific, public places.

Published on: February 17, 2016

Court Rules on Supplemental Needs Trust for Petitioners Son

by Stephen Bilkis

This is an APPEAL by nonparty Commissioner, New York State Department of Health, in a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Health dated June 7, 2006, made after an administrative fair hearing, that so much of the income of the petitioner’s decedent as was deposited into a supplemental needs trust for the benefit of the decedent’s adult disabled son was required to be included in the calculation of the decedent’s eligibility and entitlement to Medicaid benefits during her lifetime and in the calculation of the obligation of the decedent’s estate for the reimbursement of a certain portion of those benefits, from a judgment of the Supreme Court, entered in Nassau County on January 12, 2007, which granted the petition and annulled the determination.

In New York, the concept of a supplemental needs trust originated in 1978, establishing a vehicle for parents and guardians of adult children with severe and chronic disabilities to provide for their children’s future by transferring their funds to a trust, created to pay for items that will enhance their children’s quality of life without jeopardizing their children’s eligibility for government benefits, such as Supplemental Security Income, pursuant to 42 USC § 1382 et seq. and Medicaid, pursuant to 42 USC § 1396 et seq. and Social Services Law § 363 et seq.

The issues of first impression at the appellate level are whether the transfer of a settlor/parent’s recurring income into a supplemental needs trust created for his or her disabled child must be counted toward (a) the settlor/parent’s net available monthly income for calculation of the amount of the Medicaid benefits to which the settlor/parent is entitled after he or she is determined to be eligible for Medicaid (hereinafter post-eligibility benefits) and (b) the obligation of the estate of a deceased settlor/parent for the reimbursement of a certain portion of those benefits.

Published on: February 15, 2016

Court Rules on Family Court Act 304 Regarding Detaining Juveniles

by Stephen Bilkis

In a proceeding pursuant to CPLR article 78 to review a determination of the Director of Employee Relations of the Office of Court Administration, dated July 16, 1984, which denied the petitioners’ out-of-title work grievance, and in which the petitioners also sought declaratory relief, the petitioners appeal from a judgment of the Supreme Court, Queens County, which dismissed the petition on the merits, and dismissed the application for a declaratory judgment.

The Special Term correctly concluded that the determination of the Director of Employee Relations of the Office of Court Administration was not arbitrary or capricious. Based on the record before us, we have also determined that Special Term did not err when it found that the petitioners’ request for declaratory relief with respect to the possible future use of Court Officers and Senior Court Officers to guard prisoners in detention cells in courts other than the Family Court was. However, since court officers currently guard juveniles in detention cells at the Family Court, the legality of their use for this purpose is ripe for judicial resolution.

The petitioners’ basic argument is that the detention cells in the various courts are merely an extension of the county jail and that the Sheriff of Nassau County therefore exercises exclusive jurisdiction over them. With respect to the Family Court, this argument clearly lacks merit. Family Court Act § 304.1 precludes the use of a county jail or other facility used to detain adults to house juveniles. No statute gives the County Sheriff custody over juveniles at any time. Therefore, the detention cells at the Family Court are clearly not an extension of the county jail or otherwise under the exclusive jurisdiction of the Sheriff.

Published on: February 14, 2016

Court Discusses Religious Preferences in Case

by Stephen Bilkis

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.”

Published on: February 13, 2016

Husband Charged with Harrassment of His Wife

by Stephen Bilkis

The defendant has been charged with several violations of the Penal Law in that he engaged in a course of conduct whereby he did harass, threaten and endanger his wife’s life.

The complainant wife pursuant to Section 812 of the Family Court Act as amended L.1977, c. 499, Sec. 1, and effective September 1, 1977, did exercise her right to proceed with a complaint in the District Court as opposed to the Family Court. As a result defendant husband now faces criminal liability.

The defendant now moves for a dismissal of the three informations pursuant to Section 170.35 of the Criminal Procedure Law, alleging the informations are defective in that this Court is without jurisdiction of the offenses charged.

Published on: February 12, 2016

Mother Charged with Truancy for Her Child

by Stephen Bilkis

On October 2, 2007, New York City Children’s Services (hereinafter NYCCS) filed a petition against respondent mother alleging that her son’s physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired, as a result of her failure to exercise a minimum degree of care in supplying him with an adequate education in accordance with the provisions of part I of article 65 of the Education Law. Specifically, the petition alleges that the son missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.

On the day the petition was filed, the son was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. Issue was joined on October 19, 2007.

Published on: February 10, 2016

Petitioner Claims State Action Unlawful Regarding Public Assistance Benefits

by Stephen Bilkis

On early December 1971, JR was the grantee of public assistance for the benefit of her four children in the Aid to Families with Dependent Children (AFDC) category. All five lived in a home in Levittown, New York, which was then owned by Mrs. JR and her former husband as tenants in common.

On December 21, 1971, Mr. JR sold his interest in the home to Mrs. JR’s parents for $9,700. Representatives of the Nassau County Department of Social Services, present at the sale, took $2,600 of the proceeds to satisfy a debt for prior public assistance issued to the family. Mrs. JR then, as part of the whole transaction, conveyed her own one-half interest in the home to her parents for no proven consideration, and she continued to live in the home with the children.

Published on: February 9, 2016

Petitioner Was Grantee of Public Assistance for Four Childen

by Stephen Bilkis

In early December 1971, JR was the grantee of public assistance for the benefit of her four children in the Aid to Families with Dependent Children (AFDC) category. All five lived in a home in Levittown, New York, which was then owned by Mrs. JR and her former husband as tenants in common.

On December 21, 1971, Mr. JR sold his interest in the home to Mrs. JR’s parents for $9,700. Representatives of the Nassau County Department of Social Services, present at the sale, took $2,600 of the proceeds to satisfy a debt for prior public assistance issued to the family. Mrs. JR then, as part of the whole transaction, conveyed her own one-half interest in the home to her parents for no proven consideration, and she continued to live in the home with the children.

Published on: February 7, 2016

Court Looks at Material Issues of Fact in Case

by Stephen Bilkis

In this contested probate proceeding, the proponent, MP, moves for an order granting summary judgment pursuant to CPLR 3212, dismissing the objections filed by the objectant, RP, and admitting the propounded instrument to probate. RP opposes the motion on the ground that material issues of fact exist.

RP cross-moves for an order: (1) pursuant to SCPA 205, dismissing the probate proceeding on the ground that the decedent was not a domiciliary of Nassau County at the time of his death; (2) pursuant to Article 45 of the CPLR, prohibiting MP from introducing into evidence certain DVDs that MP alleges to be recordings of the decedent; and (3) pursuant to CPLR 4519, prohibiting MP and EP, who is the decedent’s ex-wife and the mother of MP and RP, from testifying at trial as to any statements allegedly made by the decedent. MP opposes the relief requested by RP.

Published on: February 7, 2016

Stepdaughter Files Claim for Aggravated Harrassment

by Stephen Bilkis

The information dated March 28, 1968, charges the crime of Aggravated Harassment in violation of section 240.30, subdivision 2 of the Penal Law. The complaint is made and sworn to by ERG, who is defendant’s step-daughter.

Pursuant to the information, a summons for purposes of investigation was issued and served by mail. Defendant has appeared specially by her attorney and makes the within motion to vacate the summons upon the grounds that any controversy between the complainant and her father’s wife is exclusively in the jurisdiction of the Family Court and the District Court is without any jurisdiction in this matter.