New York Family Law Blog

Published on: September 19, 2014

Court Decides if Memorandum Issued by Probation Board is Valid

by Stephen Bilkis

A New York Family Lawyer said that, this distressing turn of events came to the attention of the court following a memorandum dated January 30, 1989 to the Probation Directors throughout the entire state from the counsel to the New York State Department of Probation and Correctional Alternatives. The memorandum sets forth a restricted procedure relating to adoption matters where the court is placed in the untenable position of designating the Probation Department as the agent of the court. This cumbersome procedure restricts Probation to a convoluted means of criminal investigative inquiry only by U.S. mail to the DCJS, and the reply by U.S. mail and not via NYSPIN; notwithstanding statutory and court rules requiring adoption investigations to be completed within thirty (30) days.

A New York Divorce Lawyer said that, the situation relating to custody matters is even more ludicrous. Since January 30, 1989, the Probation Departments may no longer access criminal history information under any circumstances in custody cases. The only alternative is the outrageous and unacceptable proposed procedure that the onus should be placed upon the court in each and every instance to issue court-ordered subpoenas directed to the DCJS to produce the report directly to the court. Thus, the clear inference of this proposed procedure amongst the various agencies would be that this report should be for the eyes of the court only, and not Probation. However, even if the procedure would allow for the court to make it available to Probation, it would be a protracted and ineffective procedure which would undermine the effectiveness of the Probation report, and impede their statutory obligation to conduct a full and complete probation investigation. Furthermore, it is not a proper function of the court to, in effect, become part of the investigative process and, in so doing, to even create the possible perception that the court is acting unfairly or prejudicial to either of the parties.

A New York Divorce Lawyer said that, apparently the Probation Department exhausted their persuasive efforts to resolve this dilemma by making further requests through the Division of State Police, as well as the Department of Justice in Washington, D.C., all to no avail. Thus, on February 8, 1989, a directive was issued by the Nassau County Probation Department that, inasmuch as they were being denied necessary access to criminal history of the parties via NYSPIN, their staff was directed not to make recommendations to the court in custody cases.

Published on: September 18, 2014

court Decides Case Regarding Termination of Parental Rights

by Stephen Bilkis

A New York Family Lawyer said this proceeding involves an appeal from an order of the Family Court of Columbia County entered 31 July 2007 which granted petitioner’s application in proceeding No. 1 pursuant to Family Ct Act article 10 to adjudicate respondent’s child to be neglected and from an order of said court entered 31 July 2007 which granted petitioner’s application in proceeding No. 2 pursuant to Social Services Law § 384-b to adjudicate the subject children to be permanently neglected and terminated respondent’s parental rights.

A and B (born in 2002 and 2004, respectively) were voluntarily placed by respondent in petitioner’s custody in February 2005. The parties agreed to a plan to locate and secure suitable housing for respondent and her children, as well as cooperate with petitioner in obtaining mental health services. This is so required by the petitioner as against the respondent to regain custody of her children. It also required that she participate in classes designed to enhance her parenting skills. Shortly thereafter, respondent, without giving notice to petitioner, relocated to New York City and, in December 2005, gave birth to a third child, C. In August 2006, Family Court determined that A and B were neglected children based upon respondent’s failure to keep petitioner informed of her address, as well as her failure to participate in preparing a plan for the children’s future or inquire about their status.

Thereafter, a New York Divorce Lawyer said that the New York County Department of Social Services commenced proceeding No. 1 pursuant to Family Ct Act article 10 to adjudicate C as a neglected child. C was temporarily removed from respondent’s custody and this proceeding was transferred to Columbia County. Petitioner then commenced proceeding No. 2 pursuant to Social Services Law § 384-b to adjudicate A and B to be permanently neglected. Family Court held a fact-finding hearing on both proceedings and ultimately found C to be neglected and A and B to be permanently neglected and terminated respondent’s parental rights with respect to A and B. Respondent now appeals.

Published on: September 17, 2014

Petitioner Brings Motion to Consolidate Two Separate Divorce Actions

by Stephen Bilkis

A New York Family Lawyer said that on 20 September 1969, petitioner and respondent were married in Cooperstown, New York. After residing in a trailer park in Sodus, New York, they bought a house and settled in Williamson, New York. Out of the marriage, four children were born- A and B, twins who are aged three, C, aged two, and D, aged one. On or about 20 May 1974, the parties separated and respondent left the marital residence with the children, and since then has been living with her mother in Fly Creek, New York.

On 19 June 1974, the wife filed a petition in Otsego County Family Court under Article 3–A of the Domestic Relations Law, seeking support for herself and the children from her husband. In due course, the petition was forwarded to Wayne County for action to be taken thereon. This Court was unable to obtain service of the first summons for appearance of the respondent on 31 July 1974. A second summons for appearance on 28 August 1974 was also unable to be served on the respondent, and a warrant was issued, which resulted in his appearance before this Court with counsel on 3 September 1974. The respondent was released on his own recognizance for appearance with his attorney at a subsequent date.

A New York Divorce Lawyer said that on 28 June 1974, AM caused a summons for divorce to be served on his wife by the Otsego County Sheriff. A complaint verified 9 August 1974, and apparently prepared by a substituted attorney, was served on PM, following the service of another summons for divorce served on her on 20 July 1974; the proof of service of the summons on 20 July indicates a complaint was also served, but this seems not to be fact, the complaint having been served later.

Published on: September 16, 2014

Court Examines Jurisdiction Issue in Custody Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.

The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.

A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child’s birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.

Published on: September 14, 2014

Plaintiff files for Order Directing Defendant to Leave Marital Home

by Stephen Bilkis

A New York Family Lawyer said that, in an action for divorce plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide child support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A Nassau Order of Protection Lawyer said that, when the motions were originally submitted on April 30 last, we discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, we referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. On June 9, 1971, a Judge of that Court, after a discussion with counsel, returned the matters to us for determination. We have received and carefully reviewed the transcript of the remarks made on that occasion. The Judge said that what the Justice wants this Court to do is to determine everything but the fact that the divorce is granted.’ Surely, if the Family Court granted an order of protection it would render moot the request for exclusive occupancy and that determination would in turn affect the allowance for support.

The issue in this case is whether the action for divorce plaintiff’s motion to give her exclusive possession of the marital home and restraining the defendant from removing property therefrom should be granted.

Published on: September 12, 2014

petitioner Files an Order to Compel Support

by Stephen Bilkis

A New York Family Lawyer said this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel support of a dependent minor child under the Uniform Support of Dependents Law in accordance with Domestic Relations Law, Article 3-A.

Also, pending before the Court is a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.

A New York Divorce Lawyer said that in Queens County, the parties, formerly husband and wife, lived together during their marriage. Dissension arose between them, and the wife, the petitioner n this case, started a separation action, which was tried in 1959, and as a result, the court made a judgment dismissing her complaint. The custody of the infant daughter (then less than two years old and now four years old) was granted to her. The court issued an order directing the father to pay the mother for the child’s support the sum of $40 per week and allowing him weekly visitation.

Published on: September 4, 2014

Wife Opposes Husband’s Motion to Modify Child Support

by Stephen Bilkis

A New York Family Lawyer said this is a matrimonial action where plaintiff, the wife, appeals from an order of the Supreme Court, Nassau County, dated 10 November 1982, which granted defendant husband’s motion to modify the visitation provisions of a judgment of divorce to eliminate plaintiff’s visitation with the parties’ son to the extent of reducing her visitation rights and denied plaintiff’s cross motion to vacate the defendant’s motion. The order appealed from allows the plaintiff to visit with her son after submission to the court of proposed visitation dates and only with strict supervision. The appellate court affirms the said order, with costs, and states its reasons as follows:

First, plaintiff should be allowed visitation with the child. The Special Term’s finding that plaintiff’s exercise of her right of visitation with her son is not detrimental to the welfare of the child is actually supported by the record. Thus, it is proper to deny the defendant’s motion insofar as it sought to eliminate all visitation rights

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Published on: September 3, 2014

The Issue in this Case is Whether Plaintiff Stated a Cause of Action

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff commenced this divorce action via summons with notice. Prior to serving the summons with notice, Plaintiff moves for an Order authorizing an alternative method of service, for custody, child support, maintenance and attorney’s fees. Although Defendant submits no opposition papers to Plaintiff’s motion, Defendant affirmatively moves to dismiss the action “pursuant to DRL §230 claiming there is no subject matter jurisdiction in this Court to consider this matter.” Plaintiff opposes Defendant’s motion to dismiss.

A New York Divorce Lawyer said that, plaintiff wife also moves for: (1) An Order granting her primary physical and legal custody of the parties’ two (2) children, directing that so long as the daughter resides with her farther, he shall provide the Plaintiff wife all of the child’s residence information, access to all educational, medical and related personnel and records, and further directing that her daughter travel to and stay at the mother’s residence during all school recesses in excess of three (3) days; (2) An Order directing the Defendant husband to pay child support to the mother in conformance with the Child Support Standards Act, including maintaining any and all health insurance as is currently available through him in his capacity in the United States Navy, and, to bear in proportion to the parties’ respective incomes, any and all unreimbursed and/or uncovered medical and related expenses; (3) An Order direction husband to pay spousal support in an amount sufficient to permit Plaintiff to meet her ongoing needs during the pendency of this action; (4) An Order directing the father to pay attorneys’ fees on behalf of wife so as to permit her to have proper and sufficient representation.

A New York City Family Lawyer said the issue in this case is whether plaintiff fails to state a cause of action.

Published on: September 2, 2014

Court Decides if Spousal Support and Alimony Should be Suspended Based on Denial of Visitation

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the plaintiff wife had previously been granted a divorce, the defendant husband appeals (1) from an order of the Supreme Court, Suffolk County, dated August 25, 1981, which granted plaintiff’s motion for the appointment of a receiver of all defendant’s property in the State of New York, “particularly all of his right, title and interest in and to the former marital residence”, named plaintiff as the receiver, awarded plaintiff a counsel fee of $750, and denied defendant’s cross motion to, inter alia, suspend prospective payments of alimony and child support, on the ground that plaintiff unreasonably withheld visitation, and (2) from a further order of the same court, dated October 22, 1981, which denied his motion to renew.

In a stipulation settling their differences, which was incorporated but not merged in the judgment of divorce, the parties agreed, inter alia, that plaintiff would have exclusive possession of the marital residence, owned by them as tenants by the entirety. However, plaintiff was given the right to elect to sell the marital residence. The defendant further agreed to pay plaintiff $50 per week alimony and a total of $100 per week child support. The stipulation also provided: “Each party shall own free of any claim or right of the other all of the items of property, real, personal and mixed, of any kind, nature or description, and wheresoever’s situated, which are now owned by him or her”.

A New York Divorce Lawyer said that, in January, 1981, defendant petitioned the Family Court, Nassau County, for an order suspending his child support obligations on the ground that plaintiff had unreasonably denied him visitation with the children. By order dated January 28, 1981, his application was denied. A Nassau Visitation Lawyer said that, in June, 1981, defendant made a second application in the Family Court, Nassau County, for suspension of alimony and/or maintenance, on the ground, inter alia, that he was unreasonably denied visitation. By order dated July 17, 1981, his application was, again, denied and a judgment for arrears was entered against him.

Published on: September 1, 2014

Respondent Allegedly Fails to Comply with Separation Agreement

by Stephen Bilkis

A New York Family Lawyer said this is an appeal from an order of the Family Court of Ulster County, entered May 8, 1986, which granted petitioner’s application, in a proceeding pursuant to Domestic Relations Law article 3A, for an order directing respondent to pay for child support of his child. A Nassau Child Support Lawyer said that, petitioner and respondent were married in 1950 and divorced in 1980. Pursuant to a separation agreement entered into in 1977, respondent agreed to pay $150 per week to petitioner and their two unemancipated children as child support, such sum to be reduced by $25 as each child became emancipated. It is clear that respondent has failed to comply with this provision of the separation agreement, as petitioner was awarded a money judgment in Supreme Court in 1983 for support arrears.

A New York Divorce Lawyer said that, petitioner commenced this proceeding pursuant to Domestic Relations Law article 3A in 1984 in Nassau County Family Court. The petition and petitioner’s testimony were certified and transmitted to Ulster County Family Court, where respondent resided. Following a hearing in Ulster County Family Court and petitioner’s appearance in Nassau County Family Court to answer questions concerning her finances, Ulster County Family Court ordered respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages. It is from this order that respondent appeals.

The issue in this case is whether the Ulster County Family Court erred in ordering respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages.