New York Family Law Blog

Published on: November 2, 2014

Court Discusses Handling of Deposition in Felony Delinquency Proceeding

by Stephen Bilkis

This opinion follows the oral decision and order of the Court rendered on the record. This designated felony delinquency proceeding was commenced on January 4, 1991 by the District Attorney’s Office pursuant to Article 3 of the Family Court Act (“FCA”), charging Respondent with committing acts, which if committed by an adult, would constitute sexual abuse in the first degree, sodomy in the first degree and endangering the welfare of a child. Prior to the commencement of the fact-finding hearing, Respondent moved to dismiss the petition, claiming that the petition was jurisdictionally defective pursuant to FCA § 311.2. Respondent asserts that the supporting deposition of the five year old complainant was not properly sworn, subscribed or verified in accordance with Criminal Procedure Law (“CPL”) §§ 100.30 and 60.20.

The accusatory instrument in this proceeding consisted of the designated felony act petition, a supporting deposition signed and sworn to by the five year old child complainant, and a second deposition sworn to by an employee of the District Attorney’s Office, “duly qualified as a Notary Public.” This second deposition was in boilerplate form, stating that the employee interviewed the child and prior to notarizing the complainant’s supporting deposition, he found the complainant capable of taking an oath.

Published on: November 1, 2014

Court Considers Disposition of Child in Light of Being Born Addicted to Drugs

by Stephen Bilkis

The subject child was born on February 10, 2004 with a positive toxicology for opiates. This father is listed on her birth certificate. The subject child remained in the hospital for over a month due to withdrawal symptoms. When she was released from the hospital on March 17, 2004, the Administration for Children’s Services (hereinafter ACS) conducted an emergency removal, and thereafter, she was remanded to ACS, subsequent to, and pending, the resolution of the neglect petition ACS filed against her mother and father on March 19, 2004. On April 16, 2004, she began to reside with her current no kinship foster parents.

At the time the subject child was born, both her mother and father were using street methadone and heroin. ACS’s neglect petition alleges neglect by virtue of their substance abuse as well as the mother’s mental illness. The subject child’s parents were not married at the time she was born or subsequently. An order of filiation was entered on May 11, 2004 upon the request and consent of her parents, because at that time the agency and parents did not have a copy of her birth certificate in order to know whether the father had established his paternity. Based on the parents’ admissions and consent, a finding of abuse and neglect was entered against both parents on May 11, 2004. While this father was incarcerated, the court ordered him to be produced telephonically from prison in order that he could participate in all proceedings, including the permanency hearings. Upon consent, the court issued an order of disposition placing the child with the Commissioner of ACS on September 7, 2004.

Published on: October 31, 2014

Court Hears Argument in Child Support Proceeding

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, as denied his objections to stated portions of an order of the same court which, after a hearing, inter alia, fixed the father’s child support arrears in the sum of $20,046.76 and awarded the mother counsel fees in the sum of $5,000.

“In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses”.

Published on: October 30, 2014

Mother Appeals Child Support Order

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County, which denied her objections to an order of the same court, granting the father’s petition to suspend his child support obligation and to adjust his child support arrears, and to an order of the same court, denying, as academic, her petition to find the father in violation of his child support obligation and for an award of child support arrears.

In August 1993 the parties entered into an agreement which provided, inter alia, that the father would pay the mother specified child support until their two children were emancipated, as that term was defined therein. Pursuant to the agreement, emancipation was triggered, in relevant part, upon the child’s residence away from the mother’s residence, “not including attendance at college.” The parties were divorced, and the agreement was incorporated but not merged into the judgment of divorce.

Published on: October 29, 2014

Court Discusses Custody of Allegedly Abused Child

by Stephen Bilkis

In related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County, which, upon a decision of the same court, made after a fact-finding hearing, dismissed the petitions.

Article 10 of the Family Court Act defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child’s care ‘commits, or allows to be committed, a sex offense against such child”, quoting Family Ct. Act § 1012[e][iii]. A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker.

Published on: October 28, 2014

Father Imprisioned, Court Determines Custody as a Result

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Kings County, which denied his objection to so much of an order of the same court, as, after a hearing, denied his petition for a downward modification of his child support obligation, as set forth in a prior order of child support, and granted that branch of the mother’s petition which was to adjudicate him in willful violation of the prior order of child support, and (2) an order of the same court, which committed him to the custody of the New York City Department of Corrections for a term of imprisonment of eight consecutive weekends with the opportunity to purge his contempt by payment of the sum of $5,000 toward his arrears.

“A party seeking downward modification of a support obligation has the burden of showing a change in circumstances and that he used his best efforts to obtain employment commensurate with his qualifications and experience”. “In determining a change of circumstances, a court need not rely upon the party’s account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential”. However, “[w]hile a support magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion”.

Published on: October 27, 2014

Court Decides Grandparent Custody Case

by Stephen Bilkis

The subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2 1/4 years and 1 1/4 years of their lives, respectively. After the Administration for Children’s Services filed a petition in a separate matter alleging neglect against the children’s mother, the children were placed with the petitioner on March 1, 2002. However, on March 6 or 8, 2002, the children, who were then 2 1/4 years old and 1 1/4 years old, respectively, were removed from the petitioner’s custody due to the condition of the petitioner’s home. On December 2, 2002, the children were placed with their paternal grandmother, the respondent who was subsequently designated the children’s foster parent and adoptive resource, and they have resided with her since that time.

The petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother’s parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother’s parental rights suggests that the petitioner only accompanied the mother to nine of the mother’s scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.

Published on: October 25, 2014

Court Listens to Two Child Neglect Proceedings

by Stephen Bilkis

A New York Family Lawyer said that in two related child neglect proceedings pursuant to Family Court Act, the appellant father appeals from so much of an order of the Family Court as denied his motion to vacate a fact-finding order of the same court, made upon his default in appearing at a fact-finding hearing, finding that he had neglected the subject children, and, in effect, to vacate an order of disposition of the same court, which, upon the fact-finding order, directed the release of the subject children to the mother’s custody and directed him to complete, inter alia, domestic violence counseling.

A New York Divorce Lawyer said the order dated July 7, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant’s motion to vacate the fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-finding order and order of disposition are vacated, and the matter is remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it is further, ordered that, upon remittal, the Family Court shall forthwith make an order with regard to the custody of the subject children pending the new hearing or hearings and determination.

A Queens Family Lawyer said these proceedings were commenced pursuant to Family Court Act upon the filing of two petitions, in which it was alleged that the appellant father was a person legally responsible for the care of two female children, and that these children were neglected by him. The petitions were based on a single incident, in which it was alleged that the appellant, among other things, grabbed one of the subject children on the side of her neck.

Published on: October 24, 2014

Court Decides Child Custody in Light of Mentally Ill Respondent

by Stephen Bilkis

A New York Family Lawyer said that on 12 October 2001, a petition was filed against the respondent mother.

As alleged in the petition, the respondent mother neglected her seven-year-old child, T, by failing to provide the child with appropriate medical attention to treat her ADHD, by refusing to accept board of education referrals for a special education program for T, and by failing to provide T with adequate shelter because of her failure to pay rent, electricity and gas bills, and by using marijuana and not enrolling in a drug treatment program; and, the respondent mother has been diagnosed as suffering from mental illness, “specifically as paranoid and delusional, and with a possible personality disorder.”

A New York Divorce Lawyer said on the basis of the mental illness allegation, the petitioner seeks for an order pursuant to Family Court Act Â§Â§ 251, 1038 (d) to have the respondent evaluated to determine whether she in fact suffers from an untreated mental illness which impairs her ability to care for the child.

Published on: October 23, 2014

Father Moves for Custody in Light of Mentally Ill Mother

by Stephen Bilkis

A New York Family Lawyer said this is an appeal from an order of the Supreme Court entered 28 April 2009 in Ulster County, which, among other things, awarded plaintiff custody of the parties’ child.

The father, plaintiff and the mother, defendant were married in 2004 and are the parents of a daughter born in 2005. Within weeks of her birth, the couple began experiencing marital difficulties, stemming from the father’s growing concern about the mother’s mental health.

In January 2006, when the child was just five weeks old, the mother vacated the couple’s marital residence in Ulster County and traveled to Nassau County with the child. The father immediately initiated a proceeding in Ulster County Family Court requesting joint custody of the child and an order prohibiting the mother from removing the child from the child. Family Court issued an interim order restricting the mother from leaving the state with the child and set a prompt return date.