New York Family Law Blog

Published on: April 13, 2014

Guardians Sue for Termination of Parental Rights

by Stephen Bilkis

A New York Family Lawyer said that a father was in prison at the time of his child’s birth, and was ultimately sentenced to a determinate ten years of imprisonment upon his conviction for attempted robbery. While the man was in prison, he filed a petition seeking visitation with his child, resulting in the issuance of an order of custody. The order provided that the mother of the child would have the custody and the father would have visitation at the correctional center at least once a month.

Afterward, a New York Child Custody Lawyer said the child came into the care of the county’s department of social services as the result of an emergency removal. The child was then placed with foster parents. The department of social services subsequently filed a petition against the mother alleging that the child was a neglected child as a consequence of the mother’s substance abuse.

Subsequently, a Long Island Family Lawyer said the court issued an order of fact finding and disposition with continued placement. The court also modified the permanency plan to adoption, and shortly thereafter, changed to dual goals of adoption/reunification with the mother.

Published on: April 13, 2014

Court Hears Custody Case File by Sheriffs

by Stephen Bilkis

This is a Custody action was commenced originally Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners.

A New York Family Lawyer said that the genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility.

After sentencing, there is some delay while certain paperwork is processed before the prisoner is “State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.

Published on: April 12, 2014

Court Decides Custody Battle When Mother Remarries

by Stephen Bilkis

A New York Family Lawyer said the parties, in this matter, shared custody of their children. Physical custody was awarded to the mother, subject to the father’s right to visitation as set forth in their separation agreement which was incorporated but did not merge with the judgment of their divorce. The separation agreement provided that the father would have mid-week overnight visitation with the children.

Almost one year after, a New York Custody Lawyer said the mother married another man. After the marriage the mother, her new husband, her children, and eventually the two children from the second union lived together in a house owned by the man’s parents. An increase in property taxes led the man’s parents to decide to sell the house. The man’s parents offered to assist with housing expenses if the man and the mother decided to relocate to the Albany area.

From then on, and as a result of the said conversation with his parents, the man began to search for a new job, in an effort to effectuate the said relocation. Afterward, the man was offered a job with a waste and recycling company in the Albany area. Even if it is the mother’s contention that she discussed the possibility of relocation with her former husband, there is some argument as to whether the father of the children initially voiced any objection.

Published on: April 8, 2014

ACS Files Suit Against Mother AllegingEducational and Medical Neglect

by Stephen Bilkis

A New York Family Lawyer said that, ACS filed a petition against respondent mother alleging educational and medical neglect as well as a failure to comply with April 2004 and August 2004 referrals to the Family Preservation Program. Specifically, the petition alleged that from July 2004 until the filing of the petition, respondent mother failed to ensure that the child attended weekly psychiatric appointments and received prescribed medication although he had been hospitalized and diagnosed with “impulse control disorder and conduct disorder.” In addition, the petition alleged that the child missed 45 days of school during the 2003-2004 school year and that respondent mother never signed the necessary paperwork for the child to see a paraprofessional to assist him with his homework although a referral had been made by the child’s guidance counselor. A fact-finding hearing was conducted over the course of 14 months during seven court dates beginning on November 28, 2005 and ending on January 25, 2007. At the conclusion of the hearing, the Judge dismissed the petition with prejudice.

A New York Custody Lawyer said that, eight months later, ACS filed the instant petition against respondent mother alleging among other things educational and medical neglect as well as a failure to comply with referrals for services. The first paragraph in the petition alleges that respondent mother suffers from a personality disorder and that she has refused to undergo a mental health evaluation. The second paragraph in the petition alleges that respondent mother failed to ensure that the child Jeffery attends weekly psychiatric appointments and receives prescribed medication although he has been diagnosed with “attention deficit disorder.” The third paragraph in the petition alleges that the child’s whereabouts are unknown although respondent mother indicated that he was residing in Florida with an older sibling and he was observed in New York in July 2007. The fourth paragraph in the petition alleges that Jeffery missed 65 days of school during the Fall 2005 semester, 77 days of school during the Spring 2006 semester, 69 days of school during the Fall 2006 semester and 24 days of school during the Spring 2007 semester. The fifth paragraph in the petition alleges that respondent mother failed to have a dog removed from her home although the dog bit two children in May 2005, as well as Jeffery in August 2007 and that he required medical attention as a result. The sixth paragraph in the petition alleges that respondent mother refused offers for preventative services and family counseling, that she has inadequate food in the home and that she lacks a reliable means of support.

A Westchester County Family Lawyer said the issue in this case in this pre-fact-finding Family Court Act article 10 proceeding is whether to grant respondent mother’s motion to dismiss specified allegations in the petition filed by the Administration for Children’s Services based on res judicata, failure to state a cause of action and a defense established by documentary evidence.

Published on: April 7, 2014

Court Decides if Summary Judgment Should Be Granted

by Stephen Bilkis

A New York Family Lawyer said that, in May 2004, plaintiff’s decedent was diagnosed with liver cancer, determined later to have originated in her colon. Approximately 14 months earlier, on March 18, 2003, medical records show she had complained of rectal bleeding to her primary doctor, defendant. The same records reflect she was given a referral to defendant a gastroenterologist, for a colonoscopy, but the colonoscopy did not take place. Plaintiff’s decedent met again with the doctor in July 2003, but the records do not reflect a discussion of rectal bleeding or the colonoscopy referral.

A New York Custody Lawyer said that, by September 20, 2003, plaintiff began to suffer an extended period of constipation and abdominal pain and went to the emergency room of defendant Medical Center. A CT scan was performed at that time, ultimately showing thickening of the wall of her sigmoid colon, an enlarged liver and suspicion of a mass in the liver. The CT report recommended an MRI and clinical correlation to further evaluate and exclude inflammatory versus malignant process. Plaintiff was referred again to the doctor for a colonoscopy, which took place a week later on September 26, 2003. The doctor however, was unable to complete the colonoscopy because of the presence of highly inflamed tissue and the possibility of a perforation in his colon. He sent plaintiff back to the emergency room at the said medical center immediately with two tissue samples, asking for an urgent surgical evaluation and monitoring to rule out perforation.

A Nassau County Family Lawyer said that, defendant the surgeon on call at the medical center, evaluated plaintiff and concluded she showed no signs of an immediate surgical emergency. Defendant, a pathologist, examined the tissue samples and found evidence of inflammation, but no malignant cells in the samples. Gastroenterologists at Montefiore also evaluated plaintiff. A small bowel series was done to rule out problems in that area of the abdomen.

Published on: April 6, 2014

Issue in this Case Deals with whether Petitioner is Entitled to Status of Permanent Family Member

by Stephen Bilkis

A New York Family Lawyer said that, petitioner brings this Article 78 proceeding against respondents in his capacity as Commissioner of the New York City Housing Authority, and the New York City Housing Authority (“NYCHA”), seeking a court order reversing and annulling NYCHA’s termination of her mother’s Section 8 voucher and NYCHA’s denial of petitioner’s application for succession rights to her mother’s Section 8 voucher. Petitioner was born in 1960 and is 49 years old. Petitioner has been diagnosed with and treated for schizophrenia paranoia. In 1983, petitioner received disability benefits from the Department of Health and Human Services for this disability. In 1986, when petitioner was about 26 years old, she and her mother, who is moved into Apartment 2B at 99-25 42nd Avenue in Corona, New York. Petitioner has had some periods of employment, most recently as a clerk in accounts receivable at Saint Vincent’s Catholic Medical Center home care facility in Rego Park, New York, although it is unknown whether she is presently employed in this capacity.

A New York Custody Lawyer said that, in 2002, petitioner applied for and was granted a Section 8 voucher. According to the copies of the Housing Assistance Payment Contracts between NYCHA and the owner of the Apartment from 2002 and 2003, both petitioner and her mother were listed as tenants and authorized residents of the Apartment. Petitioner was also listed on the Section 8 affidavits of income for recertification purposes. In an effort at independence, petitioner left the Apartment in November 2004 and established a separate residence with her godmother. NYCHA was duly notified. Petitioner maintained a close relationship with her mother while she was out of the Apartment Both petitioner and her mother experienced problems with their health over this period of time. In 2008, petitioner and her mother decided that it would be easier for them to take care of each other and their various health conditions and disabilities if they were living together again. They also mutually desired to reduce their individual expenses by living together. In advance of petitioner moving back in, in June 2008, petitioner and her mother formally requested permission for petitioner to move back into the Apartment NYCHA provided petitioner’s mother with a number of documents to complete and return to NYCHA. After returning the paperwork to NYCHA’s offices, petitioner and her mother were told that petitioner could not move back into the Apartment without written confirmation from NYCHA. They never received any such written confirmation. However, in October 2008, petitioner’s mother received a letter from NYCHA indicating that her share of the rent would increase as of November 1, 2008, presumably because petitioner’s income was now being calculated into the tenant’s share of rent Petitioner contacted NYCHA over the telephone and asked whether a decision had been made about permission for her to move into the Apartment. Petitioner sets forth that the NYCHA representative that she spoke to told her that she had been granted permission to move back in. Petitioner moved back to the Apartment on November 4, 2008.

A Suffolk County Family Lawyer said on October 22, 2009, petitioner’s mother was struck by a vehicle and died shortly thereafter from the injuries. One week later, NYCHA cancelled the Section 8 voucher. On or about December 23, 2009, after an inquiry by petitioner’s attorney about her rights to succeed to the Section 8 voucher, NYCHA sent the attorney a letter asserting that the voucher terminated with the death of petitioner’s mother. Petitioner was denied succession rights because she had only been “conditionally” re-added as a resident family member of the Apartment in 2008.

Published on: April 5, 2014

Petitioner Deals With Homelessness of Her and Two Granddaughters

by Stephen Bilkis

A New York Family Lawyer sais this case reveals the troubling state of public housing policy in the City of New York and the lack of available counsel for low-income tenants seeking to avoid homelessness. A Bronx Family Lawyer said that, petitioner commenced this Article 78 proceeding challenging the denial of her application for a lease in her own name as the “remaining family member” of the deceased tenant of record, her husband. Respondent New York City Housing Authority (NYCHA) cross-moved to dismiss the proceeding as barred by the statute of limitations. Following the initial conference with the Court, NYCHA also filed a Verified Answer addressing the merits of the petition. Thereafter, the Court held repeated conferences in an effort to resolve the matter so that petitioner could continue to reside in the apartment, along with her adult daughter who is deaf and disabled in other respects, and her two teenage granddaughters, who are the daughters of the former. No resolution having been reached, this Court is proceeding to determine the narrow issue presented; that is, whether the decision by the Hearing Officer upholding NYCHA’s denial of petitioner’s request for a lease was arbitrary and capricious. However, this decision is not intended to in any way tie the hands of Judge who is being presented with far broader issues in the related holdover proceeding pending before him in the Bronx Housing Court.

A New York Custody Lawyer said that, in or about the year 2000, petitioner’s husband became the tenant of record in apartment 11G, a four-room apartment in Sedgwick Houses located at 156 West 174th Street in the Bronx. The records confirm that an adult daughter of petitioner’s husband also resided in the apartment until she moved out some time in 2005. Whereas the husband had listed the adult daughter’s income on his annual income affidavit filed every spring in the early years of his tenancy, he did not list her in 2006 or 2007. On his April 5, 2007 income affidavit, the father listed his name and the name of his wife. For some reason, the surname was crossed off the section of the affidavit entitled “Persons Living in Apartment.” However, petitioner signed the form as “co-lessee” and included her annual income of $32,000 for work as a home attendant. Neither of those entries was crossed out. The NYCHA Interview Records contain no entries confirming when petitioner moved into the apartment and what communications NYCHA had with the tenant upon receipt of the income affidavit. Indeed, the file contains no entries whatsoever written by a Housing Assistant during the critical three-year period from February 17, 2004 through May 4, 2007, after which the tenant passed away.

A Westchester County Family Lawyer said that, according to NYCHA records, the husband submitted a formal written request to NYCHA on or about May 4, 2007, for his wife to permanently join the household. The husband explained that he was ill and wanted his wife to live in the apartment and care for him. On May 9, 2007, NYCHA approved the request. On May 11, 2007, the husband passed away. Petitioner then asked NYCHA for permission to stay in the apartment and obtain a lease in her own name, and she followed all the required procedures to pursue that request. The Housing Manager denied the request, and the Borough Manager agreed, finding that she was not eligible for a lease in her own name because she had not been living in the apartment with the husband with NYCHA’s permission for the requisite one-year period before the tenant of record died.

Published on: April 4, 2014

Court Discusses Family Member Grievance Hearing

by Stephen Bilkis

A New York Family Lawyer said that, pro se petitioner brings this Article 78 proceeding and seeks a judgment reversing respondent New York City Housing Authority’s (“respondent” or “Housing Authority”) denial of her application to open her default for failing to appear at her remaining family-member grievance hearing. Petitioner claims she has succession rights for Apartment 2D at 1149 229th Drive North, Bronx, New York (Premises), which was previously leased to her deceased mother. Petitioner defaulted in appearing for her remaining-family-member grievance hearing and, following an inquest, the Housing Authority determined that petitioner did not qualify as a remaining family member. The Housing Authority denied petitioner’s application to open her default because she failed to explain her delay in making the application and due to her delinquency in use and occupancy rental payments. Petitioner challenges this determination. Respondent opposes.

The Housing Authority is a corporate governmental entity created to build and operate low-income housing in New York City. Since the federal government funds and regulates public housing, the Housing Authority must annually certify to the Department of Housing and Urban Development (HUD) that it has admitted individuals and families in accordance with HUD regulations. HUD mandates that the Housing Authority regularly monitor the composition and income of each family that has been admitted into public housing. Tenant families also have corresponding obligations to request respondent’s approval before adding any family members as occupants of a unit, and to supply any information necessary when the Housing Authority conducts examinations of family income and composition.

A New York Custody Lawyer said that pursuant to Housing Authority regulations, there are two exceptions to its formal tenant selection process where a tenant of record can lawfully add “authorized family members” to live in their unit. The first is where the Housing Authority allows another individual to become a permanent member of the tenant’s household. To add a person to the household, the tenant of record must obtain the written consent of the building development manager. The second exception allows a remaining- family -member to take over a lease if the tenant of record either moves or dies. To qualify under this exception, the remaining-family-member must have moved into the apartment lawfully, remained in the apartment continuously, and be eligible for public housing. Lawful members of a tenant’s household include the original tenant family, a person born to the tenant of record or to an authorized permanent family member, a person legally adopted by or judicially declared to be the ward of the tenant of record or an authorized family member, or a person who receives written permission to reside in the apartment permanently. In each instance, the person claiming remaining- family -member status must have become an authorized family member of the tenant household and must have remained in the apartment continuously from their date of entry.

Published on: April 3, 2014

Court Decides Case Involving Jurisdiction Issue

by Stephen Bilkis

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant’s arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court’s 2010 decision. Defendant also challenges the Court’s jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties’ written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.

Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy “perico,” a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.

Published on: April 2, 2014

Court Decides Whether to Vacate Child Support Judgment

by Stephen Bilkis

A New York Family Lawyer said that, this proceeding was commenced by Petitioner, pro se, by Order to Show Cause dated January 29, 2009, pursuant to Civil Practice Law and Rules (“CPLR”) Article 78 to vacate a Child Support Judgment of Arrears issued in favor of respondent, Office of Temporary Disability Assistance, Division of Child Support Enforcement (“OTDA”), on the grounds that “it has been determined by law to be uncollectible.”

A New York Child Custody Lawyer said that, before responding to the merits of the Petition, OTDA cross moved to dismiss the petition on three grounds, viz: 1. The Petition failed to state a cause of action. 2. That pursuant to General Obligations Law § 17-101, the Statute of Limitations is inapplicable, and 3. Delgado has failed to exhaust his administrative remedies. OTDA further seeks dismissal claiming that OTDA is not the proper respondent entity in a proceeding of this nature.

A New York City Family Lawyer said that, on August 23, 1983, Family Court, Bronx County, ordered petitioner to pay the new York City Department of Social Services (“DSS”) $90.00 per month or about or about $5,280 per year, commencing August 29, 1983, to reimburse DSS with respect to support for his two sons, Gabriel, born February 3, 1981 and Alexander born March 5, 1983 (the “children”). DSS was to receive the funds because the children and their mother were on public assistance. By reason of petitioner’s failure to make the required payments, DSS took petitioner to Bronx Family Court, which, on November 6, 1996, entered an order fixing the arrears due to DSS at $28,801.35 and modified the 1983 order to terminate is prospectively, thereby terminating petitioner’s obligation to provide further support for his children after such date.