New York Family Law Blog

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.

Published on: October 13, 2014

Husband Claims Aandonment and Adultery in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Family Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

The husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 12, 2014

Court Looks at Jurisdiction Issue in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties’ marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife’s mother in a residence owned by the wife’s mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties’ children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband’s 2009 driver’s license states his address is the wife’s Dobbs Ferry residence.

A New York Divorce Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

A Nassau County Family Lawyer said the husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

Published on: October 11, 2014

Father Seeks to Modify Restraining Order Against Him

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties’ three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties’ two daughters. The parties’ teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a “request for order” in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.

Published on: October 10, 2014

Father Appeals Order Granting Sole Custody to Mother

by Stephen Bilkis

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County, which, without a hearing, inter alia, granted sole custody of the subject child to the mother, with child visitation to the father.

A New York Family Lawyer said that an award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed. Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing.

Here, a New York Divorce Lawyer said in light of the parties’ conflicting allegations, the Family Court erred in awarding sole custody of the subject child to the mother without the benefit of an evidentiary hearing. Nor did the court conduct an examination of the parties, interview the child, or solicit the opinion of the attorney for the child. Under such circumstances, it cannot be concluded that the court possessed sufficient information to render an informed determination consistent with the child’s best interests. Accordingly, the court remits the matter to the Family Court, Nassau County, for a hearing and, thereafter, a new determination on the custody petition.