New York Family Law Blog

Published on: March 31, 2014

Court Decides ACD Case

by Stephen Bilkis

A New York Family Lawyer said that, these motions, numbers 98 and 100, seeking intervention and temporary relief are consolidated for disposition. In this long running case that this court has presided over since its inception and that is now post trial, two mothers seek to intervene on behalf of themselves and their families, requesting that this court stay their imminent eviction from homes where they have resided for many years. They claim that Social Services Law Â§ 350 (1) (a), the decision of the New York State Court of Appeals and this court’s decision after trial and judgment require that shelter allowances, under the Safety Net Assistance (SNA) program (Social Services Law Â§Â§ 343-360) and the Temporary Shelter Supplements (TSS) regulations (18 NYCRR 370.10) are adequate to cover the reasonable costs of housing in New York City.

A New York Custody Lawyer said that, the original plaintiffs brought this action under the public assistance program known as Aid to Dependent Children (ADC). ADC was the state promulgation of the federal Aid to Families with Dependent Children (AFDC) program. In 1990, the New York Court of Appeals determined that New York’s Social Services Law Â§ 350 (1) (a) imposes a duty on the State Commissioner of Social Services to establish shelter allowances for ADC recipients bearing a reasonable relationship to the cost of housing in New York City. In so holding, the Court of Appeals relied on the statute’s express language: “1. (a) Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the child support, maintenance and needs of one or both parents if in need, and in the home and for the support, maintenance and needs of the other relative if he or she is without sufficient means of support, provided such parent, parents and relative are not receiving federal supplemental security income payments and/or additional state payments for which they are eligible. The social services official may, in his discretion, make the incapacitated parent the grantee of the allowance and when allowances are granted for the aid of a child or children due to the unemployment of a parent, such official may make the unemployed parent the grantee of the allowance.” Section 350 (1) (a) remains unchanged today.

A Queens Family Lawyer said that, the Court of Appeals then remanded the case back to this court for a determination as to whether the shelter allowances that the Commissioner had established previously in 1988 were adequate under the statutory standard. After a 3Â½-month trial, this court found that the 1988 shelter allowances did not bear a reasonable relationship to the cost of housing in New York City and ordered the Commissioner to “develop and submit to the Secretary of State for promulgation by March 2, 1998 or, on application to the court, by a reasonable date thereafter, a proposed schedule of shelter allowances for and any successor program.” The Appellate Division affirmed this decision. To date, the Commissioner has not complied with the court’s order, but recently, on July 19, 2002 and in February 2003, the Commissioner proposed regulations to increase shelter allowances. Thus, the shelter allowances for New York City remain inadequate.

Published on: March 30, 2014

Court Decides Custody Battle

by Stephen Bilkis

Two analogous cases were brought before the court for determination.

In the first case, the mother appeals from an order of the Family Court, Kings County in this custody proceeding pursuant to Family Court Act article 6 dated 2 April 1993, for after a hearing was conducted, the court awarded permanent custody of the parties’ four-year-old daughter to the father.

A New York Family Lawyer said the court orders the reversal of the order insofar as appealed from, on the law and the facts, without costs or disbursements. The mother is awarded permanent custody of the parties’ four-year-old daughter, and the matter is remitted to the Family Court, Kings County, for a determination of a visitation schedule for the father.

Published on: March 29, 2014

Court Decides Case Dealing with Family Court Act

by Stephen Bilkis

The facts of this case constitute good cause or special circumstances justifying the 12-day extension of the time constraints of Family Court Act § 350.1(1). A New York Family Lawyer said that, on January 10, 1992, the 13-year-old appellant was arrested. He was charged with acts which, if committed by an adult, would have constituted the crimes of attempted grand larceny in the third degree, attempted grand larceny in the fourth degree, criminal mischief in the third degree, and criminal mischief in the fourth degree. He was remanded to a secure facility on January 13, based upon a history of absconding from Children’s Village at Dobbs Ferry, a non-secure setting, several times in the prior several months, and upon his posing a serious risk of not appearing in court on the return date. At a fact-finding hearing on January 16, 1992, he admitted to having committed acts constituting two counts of criminal mischief in the fourth degree.

A New York Custody Lawyer said that, on that date, his Law Guardian requested that the dispositional hearing be adjourned from Westchester to Brooklyn, as that was the appellant’s last county of residence. That application was joined in by the Westchester County Attorney, and the matter was transferred to Kings County for a dispositional hearing. The fact-finding order was entered on January 28, 1992.

A Westchester County Family Lawyer said that, the appellant appeared in the Family Court, Kings County, seven days later, on February 4, and was assigned a new Law Guardian. On that date, the presentment agency asked for continued remand for purposes of conducting a probation investigation and preparing a report, a mental health study, and an exploration of placement, and in order to ascertain the whereabouts of his parents or guardian and his status at Children’s Village at Dobbs Ferry. Over the Law Guardian’s objection, the court adjourned the matter for those purposes, and continued the remand because no parent or guardian was present in court, as well as because there was substantial probability that the appellant would not appear on the return date. The matter was adjourned to February 10, 1992, for disposition. Family Court Act § 350.1(1) provides that in cases such as this, the dispositional hearing shall commence 10 days after entry of the fact-finding order. That statutory 10-day period expired on February 7, 1992.

Published on: March 28, 2014

Court Decides Two Cases Involving Family Court Act 651 (b)

by Stephen Bilkis

Pursuant to the Family Court Act § 651(b) and Domestic Relations Law § 72, two petitions are now before the court.

A New York Family Lawyer said the first petition filed on 5 December 2008 by A (birth father) seeks custody of and/or visitation with the child B (D.O.B. 04/01/2004).

The second petition filed on 5 December 2008 by C, mother of B, seeks custody of and/or visitation with the child, C.

Published on: March 27, 2014

Court Decides Custody Case Where Child was Taken Into State Custody

by Stephen Bilkis

A New York Family Lawyer was born out of wedlock on 29 August 1977. Soon after her birth, she was placed voluntarily by her mother with the Department of Social Services for the City of New York. The department, in turn, authorized its agent, the Orphan Asylum Society of the City of Brooklyn, commonly known as the Brookwood Child Care Agency, to supervise the child’s care. A was placed in a foster home on 29 September 1977 but on 7 November 1977, A’s natural father, B., telephoned the Brookwood agency. He acknowledged paternity and requested a meeting with agency officials, which was held two weeks later. At that time, B expressed his desire to visit and financially support the child.

A New York Custody Lawyer said the representatives of Brookwood informed B that the mother, C, had adamantly refused to permit access to the child. B was instructed that, until such time as he formally established paternity, the agency would be bound by the mother’s instructions and he would not be allowed to see A. Brookwood provided B with the name and the address of the Kings County Family Court.

B persistently contacted Brookwood inquiring about A’s welfare, made a couple of visits and was informed that the matter of his paternity could go no further unless A’s mother participated in the process. The mother’s failure to co-operate was cited by B in explaining why he had been unable to establish paternity.

Published on: March 26, 2014

Court Rules on Custody Battle

by Stephen Bilkis

A New York Family Lawyer said in this Family case, in related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County, as, without a hearing, awarded custody of the parties’ children to the father.

According to a New York Child Custody Lawyer, the Family Court entered a finding of child neglect against the mother pursuant to article 10 of the Family Court Act upon the mother’s admission, at a fact-finding hearing, to allegations that she tested positive for marijuana, obtained Xanax from a neighbor, and used both Xanax and marijuana on a regular basis. Additionally, the Family Court, conducted a dispositional hearing, and was concluded thereafter.

At that hearing, evidence was adduced that supported a finding of the mother’s continued drug use, and additional evidence demonstrated the mother’s history of mental health issues, inappropriate conduct during visitation, and inappropriate conduct in making, or having her daughter make, false allegations against the father.

Published on: March 25, 2014

Father Petitions Court for Custody

by Stephen Bilkis

A New York Family Lawyer said that in two related proceedings pursuant to Family Court Act article 10, Appellant appeals, as limited by his brief, from so much of an order of disposition of the Family Court, Kings County, as, after a hearing, only awarded him supervised visitation with the subject child.

The Court, in its decision ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

A New York Child Custody Lawyer said that the appellant contends that he is entitled to unsupervised visitation with his child. Since the Family Court is in the best position to evaluate the testimony, character, and sincerity of the witnesses in weighing the many factors required for a determination of custody, ‘the determination of whether visitation should be supervised is a matter left to the Family Court’s sound discretion and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record’ ” Here, the Family Court’s determination that supervised visitation would be in the child’s best interests have a sound basis in the record.

Published on: March 24, 2014

Court Listens to Case Where Child is Put into Foster Care

by Stephen Bilkis

In this case, a New York Family Lawyer said the appellant is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours in February 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, a Children’s Services filed petitions in the Family Court, Queens County, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of child services-supervised visitation.

A New York Child Custody Lawyer said that the children were then paroled to the care of their nonrespondent father and his mother, with whom the father lived. Thereafter, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1 1/2 years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.

A Staten Island Family Lawyer said the question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, the Court finds that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.

Published on: March 23, 2014

Court Decides Custody Issues with Adopted Child

by Stephen Bilkis

A New York Family Lawyer said sometime in January 1952, the parties got married. They lived together as husband and wife until 1959. They had no issues despite the desire of both parties to have children. They were both of the Jewish faith and their marriage was consummated in accordance with orthodox Jewish tradition.

A New York Child Custody Lawyer said that in 1958, the parties allegedly decided to adopt a child. In October thereof, they were advised of the possibility of adopting a child in Florida. Thus, the wife went to Florida for that purpose. The husband bought the round-trip transportation tickets, escorted his wife to the airport in New York and communicated with her by telephone about the child while she was in Florida. When the child was born, the mother made arrangements at the hospital to take the child to Brooklyn where the parties had resided. Shortly after the child’s birth, in November, 1958 the wife did bring the child with her to New York. The husband together with his mother met his wife and the child at the airport, and escorted them to the apartment where the parties lived together. Upon arrival at their home, the wife found a bassinet, diapers and baby bottles. The baby continued to reside there with the husband and wife until they separated.

According to the wife, she and her husband had agreed to adopt the child. According to the husband, on the other hand, he did not agree to the adoption, he never wanted the child and he had no idea how the baby articles got into his apartment.

Published on: March 22, 2014

Family Court Deals with Case Regarding ACS Case

by Stephen Bilkis

A New York Family Lawyer the petitioner Administration for Children’s Services (ACS) failed to establish by a preponderance of the evidence that the defendant mother knew, or should have known, that her child A was not being properly supervised when she took a nap. The Family Court then dismissed the branches of the neglect petitions alleging that the defendant mother neglected child A and derivatively neglected the other children in allowing child A to fall out of a window in her apartment.

A New York Child Custody Lawyer said the court finds that the Family Court erred in dismissing the branches of the neglect petitions alleging that the mother failed to protect the children from witnessing domestic violence. ACS established by a preponderance of the evidence that there was a 12-year history of domestic violence between the mother and the respondent father which was witnessed and often required the children to intervene. Moreover, there was sufficient evidence to establish that the children witnessed the incident when respondent father fought with the mother and struck her with a cooking pot. This evidence was sufficient to support a finding of neglect against the mother. Evidence of acts of severe violence between parents in the presence of their children is sufficient to show that the children’s physical, mental, or emotional conditions are in imminent danger of becoming impaired within the meaning of Family Court Act § 1012 (f) (i) (B).

Further, a Suffolk County Family Lawyer said the Family Court erroneously dismissed the branches of the neglect petitions alleging that the mother failed to protect the children from the excessive use of corporal punishment by respondent father. ACS established by a preponderance of the evidence that respondent father used excessive corporal punishment on the children. ACS also established by a preponderance of the evidence that the mother should have known about the use of excessive corporal punishment. This evidence was sufficient to support a finding of neglect against the mother for the failure to protect the children from excessive use of corporal punishment.