Court Discusses Handling of Deposition in Felony Delinquency Proceeding

November 2, 2014,

A New York Family Lawyer said that, 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.

A New York Divorce Lawyer said 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.

A Brooklyn Family Lawyer said that, respondent contends that the petition should be dismissed because it was not properly sworn, subscribed or verified in accordance with CPL § 100.30, in that a five year old child cannot subscribe and verify a supporting deposition to a petition without a legally sufficient voir dire being conducted. Further, respondent argues that if the deponent is less than 12 years of age, as in the instant case, this triggers the additional requirement of CPL 60.20(2) which requires the People to rebut the presumption that a child under age 12 cannot testify under oath unless the court is satisfied that the child understands the nature of the oath.
A Kings Order of Protection Lawyer said that, respondent relies on various criminal court decisions which interpret both CPL § 100.30 and § 60.20(2) to require the People to demonstrate that a minor is competent to be sworn before a supporting deposition may be verified in a criminal proceeding. In opposition to the motion, the People assert that the FCA does not mandate a unique procedure for verification of a petition by a child. The verification procedure for Family Court delinquency proceedings is outlined in FCA § 311.1(4), which incorporates by reference the verification provisions of the Civil Practice Law and Rules ("CPLR"). The People argue that legal sufficiency of a juvenile delinquency petition is governed solely by FCA §§ 311.1 and 311.2, in that the petition is the sole instrument for the prosecution and adjudication of a juvenile delinquency proceeding. Further, the People argue that inasmuch as the FCA sets forth no requirements for competency to sign a supporting deposition by a person under 12 years of age in delinquency proceedings, the Family Court is not bound by the criminal court rulings cited by respondent.

A Bronx Family Lawyer said the issue in this case is whether a supporting deposition of a five year old complainant in a Family Court designated felony delinquency proceeding must be subscribed and verified in accordance with the CPL. The Court finds that the verification provisions of the FCA control and that the provisions of the CPL regarding verification and subscription of a criminal court complaint or information are not applicable in a juvenile delinquency proceeding.
Respondent's contention that a delinquency petition is legally insufficient if it is not properly verified in accordance with the CPL fails to distinguish between legal sufficiency of a petition and the requirement of formal verification of a supporting affidavit or deposition. FCA § 311.2 outlines the requirements of a legally sufficient petition in a delinquency proceeding, i.e., that it conform to § 311.1; that the allegations of the petition and supporting deposition(s) provide reasonable cause to believe the respondent committed the crime(s) charged; and that every element of each crime charged be supported by non-hearsay allegations.

In contrast, the verification procedures for Article 3 delinquency proceedings are outlined in FCA § 311.1(4), which provides: "A petition shall be verified in accordance with the civil practice law and rules and shall conform to the provisions of Section 311.2." Verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes to be true. Article 30 of the CPLR does not include any express provisions for a child's verification or affidavit.

FCA § 343.1 codifies a presumption that a child under the age of 12 is presumptively ineligible to be sworn in a criminal court proceeding to give oral testimony, unless found qualified to be sworn by the court after a voir dire of the child. FCA 343.1 is co-extensive with the provisions of CPL § 60.20 regarding swear ability and capacity of a child to testify under oath in open court, and does not address a child's ability to verify a petition.

The court held that the prosecutor was not required to file an affidavit concerning his voir dire of the child in order for the child's deposition to be properly verified. The court stated that because the Family Court may dispense with the formality of placing a child under oath and may take a child's unsworn testimony in open court (FCA § 152(b)) "a fortiori, the minor can sign a supporting deposition. Since the court can receive a minor's unsworn statement in evidence it can treat the child's purported deposition in this case as if it were an unsworn statement, even if a voir dire were required by CPL § 60.20 and § 100.40 as held in some of the criminal cases."
The Court finds that the Respondent's reliance on CPL § 100.30 and § 60.20, as well as the criminal court line of cases herein above cited, is misplaced. FCA § 303.1(1) states that "the provisions of the CPL shall not apply to proceedings under this article unless the applicability of such provisions are specifically prescribed by this act." FCA § 303.1(2) provides that the family court "may, however, consider judicial interpretations of appropriate provisions of the CPL to the extent that such interpretations may assist the court in interpreting similar provisions of this article."

The court may interpret similar provisions, subject to the rules of statutory construction, where the CPL does not conflict with the expressed terms of the FCA. However, under the general rules of statutory construction, "where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation."

There is a clear distinction between CPL § 100.30 and FCA § 311.1 with respect to subscription and verification of a petition. The legislature in fashioning the FCA specifically intended that a dichotomy be maintained between delinquency and criminal court proceedings in the area of verification and subscription. CPL § 100.30 specifically outlines the procedures for verification of an information, misdemeanor complaint, felony complaint, supporting deposition and proof of service in criminal proceedings exclusively. Respondent's argument that the child's out-of-court verification in this juvenile delinquency proceeding is inherently suspect and requires the additional safeguard of a voir dire is not supported by the FCA or case law.

The verification of the within petition by the five year old complainant in this matter satisfies the verification provision of FCA § 311.1(4). Furthermore, the court notes that the preliminary voir dire conducted by Mr. Stovall and his affidavit annexed to the petition were not required as a matter of law.

In view of the foregoing, the court held that the respondent's motion to dismiss the within juvenile delinquency petition is denied.

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

November 1, 2014,

A New York Family Lawyer said that, 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.

A New York Divorce Lawyer said that, 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.

A New York Divorce Lawyer said that, the last permanency hearing order was issued on October 18, 2005 wherein the court approved the goal of reunification with parents. However, the court extended the child's placement in foster care because the return of the child home would be contrary to her best interest, insofar as the respondent mother failed to make sufficient progress in her mental health and substance abuse services and the respondent father was incarcerated. The court approved a service plan for the father, which included successfully completing a drug treatment program and its aftercare component upon his release from prison. It is important to note that when the subject child was placed in foster care, specifically non kinship, her birth parents were warned and notified in this permanency hearing order as well as the prior disposition order that if she remained in foster care for 15 of the most recent 22 months that the agency may be required to file a petition to terminate parental rights.

A Nassau County Family Lawyer said that, the foster care agency filed a petition to terminate the mother's parental rights (hereinafter TPR) on the grounds of permanent neglect on June 16, 2006, and placed the father on notice of the pending petition, including his right to provide evidence regarding the child’s best interest at the dispositional phase.

On September 29, 2006, this court commenced another permanency hearing, accepting documentary evidence and hearing testimony from the agency caseworker. ACS rested, and both parents requested an adjournment for purposes of testifying. Pending the conclusion of the permanency hearing, the court directed the agency to continue to work with the parents in planning for the return of their daughter. The court emphasized that even though the agency had recommended a goal of adoption and had filed a petition to terminate the mother's parental rights, this court required the agency to engage in concurrent planning, pending conclusion of the permanency hearing. The case had to be adjourned to January 19, 2007, the earliest date the court and all attorneys were available. On January 19, 2007, the law guardian was engaged in an emergency hearing, which takes priority over all matters before Family Court. The permanency hearing had to be adjourned to April 17, 2007, the earliest date the court and four attorneys were available.

A Staten Island Family Lawyer said that, in February 2007, the father's counsel submitted two motions, the first requesting a stay of the termination of parental rights fact-finding, pending the permanency hearing and appeals. The second moved the court to dismiss the termination of parental rights petition, claiming Domestic Relations Law § 111 (1) (d) is unconstitutional as drawn and as applied.

The issues in this case are, first, whether the agency's petition to terminate the mother's parental rights should be held in abeyance, pending the conclusion of, and appeals from, the permanency hearing, and second, whether the agency is collaterally estopped from prosecuting its petition to terminate the mother's parental rights, which alleges that he is only entitled to notice thereof, as a result of a prior permanency hearing order. His second motion presents the primary issue of whether Domestic Relations Law § 111 (1) (d), which sets out the requirements for an unwed father to have veto rights over his child's adoption, is constitutionally infirm because it denies him equal protection and due process based on distinctions by gender and marital status.

The first issue presented is whether the court must or should hold the termination of parental rights petition in abeyance, pending the conclusion of, and appeals from, the permanency hearing, and pending the court changing the goal to "free for adoption." The father's counsel argues this is a case of first impression, and that despite the lack of statutory or case law support, this court should find that the Commissioner, or an authorized agency who has been vested with authority by the Commissioner, cannot file a petition to terminate parental rights until the permanency hearing and all appeals have been decided. The father's main argument is that the permanency hearing drives the petition to terminate parental rights and that a parent's due process rights are violated if the court does not first conclude the permanency hearing and approve a goal of "free for adoption." Further, the father maintains that only the Family Court has the authority to change the permanency goal.

The counsel for the agency, who did not submit any papers in opposition to the motion, argued that the intention of the New York Legislature in passing the new permanency laws of 2005, and Congress in passing the Adoption of Safe Families Act (hereinafter ASFA), was to ensure timely permanency for children who were languishing in foster care. The agency maintained that Tatiana, who has been in foster care for three years already, deserves permanency and would be prejudiced if the court held the TPR in abeyance. Further, the agency argued that under the executive branch, it has the discretion to change the permanency goal, since it is not "effectuated" until the court proceeds with the petition to terminate the parental rights. Lastly, the agency maintained it does not have to obtain the court's approval before it files a petition to terminate parental rights.

This issue raises questions that concern the essence of the permanency laws passed in December of 2005, and the roles that the judicial and executive branches play in these proceedings. In 2005, part of Family Court Act former § 1055 was replaced by article 10-A, which governs permanency hearings for foster care placements. The main purpose of this new legislation was to improve permanency for children in foster care and bring New York in more affirmative compliance with federal guidelines set forth in ASFA and the requirements under title IV-E of the Social Security Act. The most significant change in the new law was Family Court's continuous jurisdiction from the day a child is placed in foster care until the date that permanency is achieved (e.g., family reunification, adoption, custody or guardianship). In addition, Family Court must now hold a permanency hearing every six months when a child continues in an out-of-home placement.

Pursuant to article 10-A, the Commissioner or the authorized agency has the obligation to recommend a permanency plan, which includes a permanency goal, such as but not limited to, "return to parent" or "free for adoption." There is nothing in the statute or case law that limits an agency's discretion to change the permanency goal. The court does, however, have the authority to direct an agency not to change a permanency goal without the court's approval. An agency is required to file a petition to terminate parental rights when a child has been in non-kinship foster care for at least one year or 15 of the most recent 22 months absent compelling circumstances. The court also has the authority "where the court finds reasonable cause to believe that grounds for termination of parental rights exist" to direct the local social services district or other agency to institute a proceeding to legally free the child for adoption or permit the foster parents to file such a petition if the agency has not complied, unless there is good cause shown for delaying such a filing. As such, based on the clear statutory language in article 10-A, the agency has the executive discretion to change the permanency goals and to file petitions to terminate parental rights, but Family Court has the ultimate authority to approve or modify the permanency goal and to either grant or deny the agency's petition for termination of parental rights. Ultimately, only the court can actually legally free a child for adoption.

With respect to the parents' due process rights, the father's argument is misplaced. As such, courts must use at least a clear and convincing standard in order to ensure parents' due process rights are respected. Yet counsel relies on this decision to assert that the permanency hearing is meant to ensure parents' due process rights. The standard of proof at a permanency hearing is a preponderance of the evidence, lower then clear and convincing evidence. Notably, a court cannot sever a parent's parental rights at a permanency hearing, which is why the higher burden of proof is required at a termination of parental rights proceeding.

In this case, the subject child has been in foster care since birth. She is currently three years old and has been with the same foster parents, who would like to adopt her. The last permanency hearing order was dated October 18, 2005 in which the goal was approved as "return to parents." The subsequent permanency hearing began in September of 2006 and after three adjournments, due to attorney unavailability, has not been completed. The May 31, 2007 court date was originally set aside to start the TPR, which was filed in June of 2006. Based on the above analysis, the court finds that Tatiana, the subject child, would be prejudiced if the court granted the father's motion to hold the TPR in abeyance, since she has been in foster care for three years and deserves permanency. The father, on the other hand, is not prejudiced because the agency is still required to prove their cause of action by clear and convincing evidence and then, at disposition, that it serves the best interest of the child to be freed, all of which is appealable. This court declines the father's request to set a precedent, which would frustrate the purpose of the permanency law.

The next issue is whether the agency filing of the petition in June of 2006 to terminate the mother's parental rights and give the father notice is collaterally estopped by the permanency hearing order issued by this court in October of 2005, which stated that the goal was "return to parents."

It is established law that the doctrine of collateral estoppel bars the "relitigation of factual issues between the same parties when those issues were in controversy and actually determined in a prior lawsuit." In order to establish collateral estoppel there must be (i) an "identity of issues" that were decided in the prior litigation and are decisive of the present litigation and (ii) the party against whom collateral estoppel is sought had a "full and fair" opportunity to be heard. Courts apply the doctrine of collateral estoppel with flexibility, considering competing policy concerns such as "fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results."

Based upon the foregoing analysis, the court held that the father does not meet the requirements of a consent father, under Domestic Relations Law § 111 (1) (d), because he did not have a substantial and continuous relationship with his daughter for the past three years. Moreover the distinction drawn by the statute is constitutionally permissible because it is based on the relationship an unwed father establishes with his child.

Accordingly, both motions are denied in their entirety.

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Court Hears Argument in Child Support Proceeding

October 31, 2014,

A New York Family Lawyer said 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".

A New York Divorce Lawyer said the Support Magistrate properly found that the father was in arrears for the sum of $1,365.13 for his pro rata share of unreimbursed medical expenses of the parties' two sons. The mother's testimony at the fact-finding hearing and her submissions of medical expense receipts satisfied her initial burden of presenting prima facie evidence of the father's nonpayment of this amount. The father proffered no proof of having reimbursed the mother for any of the medical expenses for which she sought reimbursement.

In addition, the mother met her initial burden of presenting prima facie evidence of the father's partial payments of his child support obligation for November 2008 through 2010. The father failed to offer evidence sufficient to rebut her showing of the father's partial payment for those dates

However, a Westchester Family Lawyer said the Support Magistrate erred in finding that the father failed to make any child support payment whatsoever in January, February, March, or April 2011. The mother testified that she received a full payment for January 2011 in the amount of $2,190 and that she received three partial payments of $1,500 in each of the months of February, March, and April 2011.

Thus, a Suffolk County Family Lawyer said the Support Magistrate should have credited the father for these payments. Since the tables appended to the Support Magistrate's Findings of Fact dated May 12, 2011, and Supplemental Findings of Fact, do not accurately reflect all of the payments that the Support Magistrate correctly credited to the father from November 2008 through 2010, it is not possible to determine the manner in which the Support Magistrate calculated the child support arrears and interest. Therefore, the matter must be remitted to the Family Court, Kings County for a calculation of the correct amount of child support arrears, and thereafter, the entry of an appropriate order and money judgment.

"Once a finding of willfulness was made, the court was required by Family Court Act § 438(b) to award an attorney's fee to the mother". Under the circumstances of this case, the Support Magistrate properly found that the attorney's fee of $5,000 was reasonable.

Accordingly, the Court modifies the Order, on the facts and in the exercise of discretion, by deleting the provisions thereof denying the father's objection to so much of the order, as fixed the father's arrears for child support in the sum of $20,046.76; as so modified, the order, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith.

In another child custody proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the family Court, Kings County, which, without a hearing, dismissed her petition to modify an order of custody, with respect to the subject child, and directed that no further petitions for modification of the order of custody, would be accepted for filing without leave of court.

As the Children's Services correctly concedes, under the circumstances of this case, the Family Court improperly dismissed, without a hearing, the maternal grandmother's petition to modify an order of custody, with respect to the subject child. Accordingly, the order must be reversed, the maternal grandmother's petition reinstated, and the matter remitted to the Family Court, Kings County, for further proceedings on the petition. In light of certain remarks made by the Court Attorney Referee, the proceedings should be held before a different Court Attorney Referee.
Further, the Court noted that the maternal grandmother's request for legal assistance to amend her petition is not properly before this Court and would be properly made before the Family Court.

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Mother Appeals Child Support Order

October 30, 2014,

A New York Family Lawyer said 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.

A Kings County Family lawyer said that 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.

A New York Divorce Lawyer said the father filed a petition, seeking to suspend his child support obligation and to adjust his child support arrears accordingly, alleging a change in circumstances in that the parties' youngest child was living with him, and their oldest child was living at college. The mother filed a petition alleging that the father was in violation of his child support obligation, and for an award of child support arrears.

A Manhattan Family Lawyer said that after a hearing, the Support Magistrate, in an order, granted the father's petition, inter alia, to suspend his child support obligation, on the ground that the parties' youngest child was living with the father, and the oldest child was not living with the mother. In a separate order, the Support Magistrate denied, as academic, the mother's petition to find the father in violation of his child support obligation and for an award of child support arrears.

A New York City Family Lawyer said that in the order appealed from, the Family Court denied the mother's objections to the orders. The Family Court should have granted the mother's objections to the extent that they concerned the father's child support obligation with respect to the oldest child.

The Support Magistrate's finding that the father was not obligated to pay child support for the parties' youngest child because that child resided with the father was amply supported by the evidence adduced at the hearing. However, the Support Magistrate's finding that the father was not obligated to pay child support for the oldest child was in error. Pursuant to the parties' agreement, a child's residence at college did not constitute emancipation, so as to relieve the father of his obligation to pay child support.

Thus, the Support Magistrate erred in granting those branches of the father's petition which were to suspend his child support obligation and to adjust his child support arrears with respect to the oldest child. Moreover, the Support Magistrate erred in denying, as academic, those branches of the mother's petition which were to find the father in violation of his child support obligation and for an award of child support arrears with respect to the oldest child, and the matter must be remitted to the Family Court, Kings County, for a hearing on those branches of the mother's petition and a new determination thereafter of those branches of the petition.
Accordingly, the Court modified the order, (1) by deleting the provision thereof denying the mother's objection to so much of the first order, as granted those branches of the father's petition which were to suspend his child support obligation and to adjust his child support arrears with respect to the parties' oldest child, and substituting therefor a provision granting that objection and vacating that portion of the first order, and (2) by deleting the provision thereof denying the mother's objection to so much of the second order, as denied, as academic, those branches of the mother's petition which were to find the father in violation of his child support obligation and for an award of child support arrears with respect to the parties' oldest child, and substituting therefor a provision granting that objection and vacating that portion of the second order; as so modified, the order is affirmed, with costs payable to the mother, and the matter is remitted to the Family Court, Kings County, for a hearing on those branches of the mother's petition which were to find the father in violation of his child support obligation and for an award of child support arrears with respect to the parties' oldest child, and a new determination thereafter of those branches of the petition.

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court Discusses Custody of Allegedly Abused Child

October 29, 2014,

New York Family Lawyer said inn 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.

The Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur,” and “once a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability”. However, “the burden of proving child abuse always rests with petitioner”

Here, contrary to the Family Court's determination, the petitioner sustained its burden of proof by a preponderance of the evidence that the subject child was an abused child. The medical evidence presented by the petitioner established that the child, then three years old, had contracted gonorrhea while under the care and supervision of the respondents. “Unexplained evidence that a young child suffers from a sexually-transmitted disease suffices to establish a prima facie case of child abuse”

A New York Divorce Lawyer said that since the petitioner established a prima facie case, the burden shifted to the respondents to rebut the evidence of parental culpability. The respondents failed to rebut the petitioner's prima facie case of abuse.

Further, a preponderance of the credible evidence supports a finding that the respondents neglected the child. Finally, the proof of abuse and neglect by the respondents of the child was sufficient to establish that the respondents derivatively abused and neglected the child's sibling..
Accordingly, the Court reinstated the petitions and remitted the matter to the Family Court, Kings County, for a dispositional hearing and a disposition thereafter.

A Brooklyn Family Lawyer said in another proceeding pursuant to Domestic Relations Law § 72 for grandparent visitation, the maternal grandmother appeals from an order of the Family Court, Kings County, which, after a hearing, dismissed the petition for lack of standing.

A Kings County Family attorney said that the subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2¼ years and 1¼ 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 in March 2002. However, thereafter, the children, who were then 2¼ years old and 1¼ years old, respectively, were removed from the petitioner's custody due to the condition of the petitioner's home.

In December 2002, the children were placed with their paternal grandmother, hereinafter 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.

The petitioner filed the instant petition, seeking grandparent visitation rights. Following a bifurcated hearing, the Family Court determined that the petitioner lacked standing, and dismissed the petition. The petitioner appeals and the Court reversed the decision.
In considering whether a grandparent has standing to petition for visitation rights based upon "circumstances showing that conditions exist which equity would see fit to intervene" "an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship". In cases where such a relationship has been frustrated by the parent, the grandparent must make "a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention". In ascertaining the sufficiency of the grandparent's efforts, "what is required of grandparents must always be measured against what they could reasonably have done under the circumstances"

In addition to these considerations, "the nature and basis of the parents' objection to visitation are among the several circumstances which should be considered by courts deciding the standing question"

Here, where it is another grandparent who allegedly frustrated the petitioner's relationship with the grandchildren, the petitioner established that, in addition to the bond she formed with the subject children when they lived with her during the first years of their lives, she also made a sustained and concerted effort to maintain contact with them, which was sufficient to confer standing to seek grandparent visitation. Moreover, the record is devoid of any indication as to "the nature and basis of the respondent's objection to visitation"

Therefore, the Family Court improvidently exercised its discretion in concluding that the petitioner was without standing to seek visitation.

Accordingly, the matter must be remitted to the Family Court, Kings County, for a hearing on the issue of whether an award of grandparent visitation to the petitioner would be in the best interests of the grandchildren.

Child custody should be awarded to a parent who is capable in taking care of the subject child and will be able to give a better future to him. Here in Stephen Bilkis and Associates, we have Kings Child Custody lawyers who will represent you in proving your capabilities in giving your child a better future. We will help you obtain custody of your child in accordance with the law requires. You can also consult our Kings County Child Visitation attorneys to acquire visitation rights to your child who has been living away from you. Contact us now, we will be glad to help you.

Father Imprisioned, Court Determines Custody as a Result

October 28, 2014,

A New York Family Lawyer said 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".

Here, a New York Divorce Lawyer said that although the Family Court did not explicitly state the amount of income imputed to the father, in effect, it imputed to him an income of $80,000, since it left in place the basic support obligation previously determined, which was based on the father's income in 2001, when he was employed by a firm. This was an improvident exercise of discretion, as it was undisputed that the father had been laid off from said firm in 2002, and is now employed at a much lower salary as a quality assurance technician.

A Queens Family Lawyer said the father further established that, despite his efforts to secure employment commensurate with his experience and prior salary, he was unable to secure such employment. The record supports the Family Court's finding that the father's "true income" was "greater than his reported annual income of $26,000," as well as its finding that he was "actually earning more at his current job, than his documents reflect." However, there was no support in the record for imputing a salary of $80,000 to the father at his current job.

Accordingly, the Court reversed the order, and remitted the matter to the Family Court, Kings County, so that a proper income determination can be made.

A Long Island Family Lawyer said proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support, thus "shifting to respondent the burden of going forward". To meet his burden of proof going forward, the respondent must rebut the petitioner's prima facie evidence of a willful violation by offering "some competent, credible evidence of his inability to make the required payments".

Here, since the Support Magistrate never made any specific findings as to the amount of the father's income, it was improper for the family Court to conclude that the father's failure to pay $365 per week in child support was willful. Accordingly, the Family Court should have denied the mother's petition to adjudicate the father to be in willful violation of a prior child support order. Since the father already served the term of incarceration imposed upon him in connection with the mother's petition, the Court was constrained to dismiss his appeal from the order of commitment as academic.

The Court Ordered also that the appeal from the order, is dismissed as academic, without costs and disbursements, as the period of incarceration has expired.

Child support should be in accordance with the capacity and capability of a person liable to give support. Here in Stephen Bilkis and Associates, our Kings County Child Support attorneys will help you ask the court to give an amount which is only commensurate with your capability. Our Kings County Family lawyers will also give you an advice on the procedures which will be done in filing a petition before the Courts.

court Decides Grandparent Custody Case

October 27, 2014,

A New York Family Lawyer said 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.

A New York Divorce Lawyer said 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.

The petitioner filed the instant petition on May 7, 2007, seeking grandparent visitation rights. Following a bifurcated hearing, the Family Court determ

A Nassau County Family Lawyer said in considering whether a grandparent has standing to petition for grandparent visitation rights based upon circumstances showing that conditions exist which equity would see fit to intervene, an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship. In cases where such a relationship has been frustrated by the parent, the grandparent must make a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention. In ascertaining the sufficiency of the grandparent's efforts, what is required of grandparents must always be measured against what they could reasonably have done under the circumstances. In addition to these considerations, the nature and basis of the parents' objection to visitation are among the several circumstances which should be considered by courts deciding the standing question.
Here, where it is another grandparent who allegedly frustrated the petitioner's relationship with the grandchildren, the petitioner established that, in addition to the bond she formed with the subject children when they lived with her during the first years of their lives, she also made a sustained and concerted effort to maintain contact with them, which was sufficient to confer standing to seek grandparent visitation. Moreover, the record is devoid of any indication as to the nature and basis of the respondent's objection to visitation.

A Staten Island Family Lawyer said therefore, the Family Court improvidently exercised its discretion in concluding that the petitioner was without standing to seek visitation. Accordingly, the matter must be remitted to the Family Court for a hearing on the issue of whether an award of grandparent visitation to the petitioner would be in the best interests of the grandchildren.

An appeal was made by the Administration for Child Services to recall and vacate a decision and order on motion which dismissed an appeal from an order of the Family Court to reinstate the appeal, to consolidate the appeal with appeals from four orders of the same court and for poor person relief. Separate motion is made by the appellant for poor person relief and for the assignment of a female lawyer as counsel.

Upon the papers filed in support of the motions and no papers having been filed in opposition or in relation thereto, it is ordered that the branch of the motion which is to recall and vacate the decision and order and to reinstate the appeal from the order is granted. It is further ordered that the branch of the motion which is to consolidate the appeals is granted to the extent that the appeals from the five orders of the Family Court are consolidated, and that branch of the motion is otherwise denied. On the Court's own motion, the appeals from the five orders of the Family Court shall be heard together with the appeal from the order of the Supreme Court and shall be argued or submitted on the same day. The branch of the motion which is for poor person relief is granted.

Grandparents are the next person who could act as parents to children. If you want to fight for your grandchildren’s custody, you can ask the help of the Kings County Family Lawyer together with the Kings County Custody Attorney or the Kings County Visitation Lawyer from Stephen Bilkis and Associates.

Court Listens to Two Child Neglect Proceedings

October 25, 2014,

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.

A Long Island Family Lawyer said the fact-finding hearing began on November 20, 2009. The appellant father was present at the hearing, but the caseworker employed by the Administration for Children's Services (ACS) was absent. ACS introduced medical records and progress notes taken by the absent employee, which were admitted into evidence over the appellant's objection. No fact witnesses were called to testify. The hearing was thereafter adjourned until February 9, 2010.

On August 24, 2010, the hearing was continued, but the appellant father was not present. ACS introduced certain other exhibits, but no fact witnesses were called to testify. ACS rested on the basis of the documents which had been admitted into evidence. The Family Court reserved decision.

The proceedings continued on December 13, 2010. The appellant father was present, and his attorney explained that the appellant had missed the previous hearing date because he relied on the adjournment slip that he had received, which listed the adjournment date as August 25, 2010. The Family Court did not address the appellant father's statement, and instead adjourned the proceeding until January 14, 2011, due to the fact that the medical records introduced by ACS had been misplaced and had to be re-subpoenaed.

On January 14, 2011, the proceedings continued, with the appellant father again present. The Family Court concluded that the appellant had defaulted by failing to appear at the August 24, 2010, hearing date. The Family Court further concluded based on the documentary evidence submitted by ACS, that the appellant father had neglected the two subject children based on the incident described in the petitions. In a fact-finding order dated January 14, 2011, the Family Court determined that the petitioner had established by a preponderance of the evidence that the appellant neglected the subject children. The order was made on the appellant's default.

In an order of disposition dated May 25, 2011, it was determined that the subject children would be at risk of abuse or neglect if returned to appellant, and, therefore, they were released to the custody of their mother. The order of disposition also directed the appellant father to complete domestic violence counseling.

The appellant father moved to vacate the fact-finding order and, in effect, the order of disposition. In support of his motion the appellant father submitted an affidavit in which he controverted the version of the facts presented in the documents introduced by ACS. The appellant specifically denied grabbing the subject child on her neck, as alleged in the petition. The appellant asserted that the medical records were inconsistent with the version of the events alleged by ACS.

The appellant father's motion was opposed by ACS and the attorney for the children. In an order dated July 7, 2011, the appellant's motion was denied on the ground that he failed to establish a reasonable excuse for the default as well as a meritorious defense.

If the parent or other person legally responsible for the child's care is not present, the court may proceed to hear a petition under Family Court Act if the child is represented by counsel. The parent or other person legally responsible for the child's care may move to vacate the order of disposition and schedule a rehearing within one year after being served with a copy of the order of disposition. Such motion shall be granted on an affidavit showing a meritorious defense to the petition, unless the court finds that the parent or other person willfully refused to appear at the hearing, in which case the court may deny the motion.

Here, the appellant submitted, among other things, an affidavit in which he averred that he had not intentionally defaulted, inasmuch as he missed the August 24, 2010, hearing date only because he incorrectly thought that the hearing was adjourned until August 25, 2010. The appellant actually appeared at the Family Court on August 25, 2010, only to find that the fact-finding hearing had already been conducted. The father also submitted the adjournment slip, which incorrectly showed that the matter was adjourned until August 25, 2010. Under the circumstances, including the father's record of appearances at the previous hearing dates and the fact that the August adjournment date was changed numerous times during extended discussions at the previous court date, we conclude that the appellant adequately demonstrated that his failure to appear at the fact-finding hearing on August 24, 2010, was not willful.

Furthermore, the appellant demonstrated a potentially meritorious defense to the petitions. Contrary to the contention of ACS, the appellant's affidavit was not conclusory. The appellant did more than merely intone that he had a meritorious defense. Rather, he controverted the evidence against him and presented an affidavit, based on his own personal knowledge, to support his version of what had transpired during the incident which formed the basis for the neglect petitions. The appellant was not required to conclusively disprove the allegations of the petition or otherwise establish as a matter of law that the entire proceeding must be resolved in his favor, since such a showing would render a rehearing superfluous. The appellant was simply required to show that he possessed a reasonable position on the merits, which was potentially meritorious.

Under the circumstances here, the Family Court improvidently exercised its discretion in denying the appellant's motion to vacate the fact-finding order and, in effect, to vacate the order of disposition. Accordingly, the fact-finding order and order of disposition must be vacated, and the matter must be remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing.

Both the father and mother share equal rights and obligations to their children. However, they also must protect their children from everyone and everything that could harm them in any way possible. In order to protect your children’s rights, you can ask the legal help of the Kings County Abuse and Neglect Lawyer or the Kings County Order of Protection Attorney from Stephen Bilkis and Associates.

Court Decides Child Custody in Light of Mentally Ill Respondent

October 24, 2014,

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 §§ 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.

The factual basis:

A Nassau County Family Lawyer said the petitioner filed five exhibits all essentially showing that: the respondent had been in treatment with a certified social worker at Brookdale Medical Center from 22 September 2000 until February 2001; the respondent had been seen about five times before treatment was discontinued in February due to the noncompliance; the therapist's recommendations in the discharge summary were day treatment, medication management and parenting skills classes; the respondent had been prescribed an antidepressant, Paxil, and an antianxiety medication Xanax, on 22 November 2000; the respondent's principle complaint was anxiety attacks; the respondent told the evaluators that she felt like she would "burst" when she got angry and that she slept only a few hours a night; the respondent’s diagnosis was panic disorder and agoraphobia; the respondent was not seen by her therapist at the clinic after 13 November 2000, until she contacted the clinic in May 2001, due to problems she was having with the board of education; and, the respondent was seen twice before contact was again lost.

Sometime in August 2001, the respondent became known to the Administration for Children's Services (ACS) when she reported that she believed T had been sexually abused by a friend of T's father, some eight months before. Based on the records of Brookdale Medical Center, the respondent provided an incoherent narrative to her former therapist, the certified social worker, about T touching her breasts and telling her that her father's friend did the same thing to her; that the father's friend inserted his finger into T's vagina; and, that the father’s friend had raped T.

The respondent then reported that T's father was in jail. She connected this with having seen a police car leaving the vicinity of her residence; and, talked about leaving T alone while she reviewed a court transcript that someone had "planted" where she could find it. The respondent then spoke about cults and about the police being against her. When the therapist suggested reopening the mother's counseling, the respondent refused. The therapist suggested that the respondent might want to go to the emergency room to speak to a psychiatrist, and again the respondent refused. The respondent was described as paranoid by the therapist.

Also, a Staten Island Family Lawyer said the respondent called the police about the alleged sex abuse. Consequently, on 21 August 2001, T was examined at a pediatric emergency room but no physical evidence of sexual abuse was found. After an investigation, ACS determined that the sexual abuse could not be substantiated.

By reason of the foregoing, ACS decided to request for an evaluation of the respondent by the mobile crisis team (MCT) at Interfaith Hospital.

According to documents of the MCT, from 2 September 2001 to 25 November 2001, numerous attempts to see the respondent were unsuccessful with the exception of a visit to her home by a psychologist on 4 September 2001; the September 4 evaluation was incomplete due to the presence of T who was extremely hyperactive; the evaluator found no apparent delusions or thought disorder; the respondent was not found to be a danger to herself or others; the respondent’s sole contingent diagnosis was personality disorder; the respondent told the evaluator that she was in treatment at Brookdale; when MCT determined that the respondent was not in treatment, they attempted unsuccessfully to conduct a further evaluation; and, in a letter to ACS, the evaluator concluded that the initial diagnosis was likely incorrect and, founded upon conversations with the respondent's therapist, it was more likely that the respondent is paranoid and delusional.

In November of 2001, ACS learned that the child T had been placed into foster care by Connecticut Department of Children and Family Services (DCFS).

On 15 November 2001, the respondent was found with T at the Norwalk, Connecticut, emergency shelter, apparently hallucinating, slapping at herself and reprimanding T to "stop you're making it crawl on me." According to the respondent, in her conversation with the shelter staff, she lost her job and her apartment, and she had no money. At that time, the shelter staff noted that T was running all around the shelter and was beyond the respondent’s control.

Thereafter, the respondent was evaluated by the crisis center psychiatric nurse and was found to suffer from posttraumatic stress disorder, severe depression and Myasthenia Gravis. According to the nurse, the respondent has to be evaluated at a hospital. Again, based upon T's behavior and the respondent's statement to shelter workers in Connecticut that T had been vaginally penetrated by a friend of her father's, T was taken by ambulance to a Norwalk hospital for examination. A doctor at the Norwalk hospital diagnosed T as suffering from severe ADHD and recommended to the respondent that the child be medicated but the respondent refused. Based upon the Connecticut child protective documents, the hospital staff observed the respondent pull a remote control wire out of the wall and attempted to hit T with it. The Connecticut DCFS records showed that the caseworkers believed that respondent was unable to manage T's behavior due to her own emotional problems.

On 16 November 2001, Connecticut DCFS referred respondent for a psychiatric evaluation. According to ACS records, the Connecticut DCFS informed ACS that the respondent left before the evaluation could be conducted. The respondent returned to Brooklyn, leaving T in foster care.

On 20 November 2001, the police and an ACS child protective worker went to the respondent’s Brooklyn residence, acting on a warrant issued after the respondent had disappeared from her residence with T. According to a neighbor, respondent recently knocked on his door at 2 o'clock in the morning informing him that she "had been playing hide and seek with her cat and placed the cat in the freezer" prompting him to enter the respondent's apartment and remove the frozen, dead cat from the freezer and place the carcass in the garbage.

The legal analysis:

Family Court Act § 1038 (d) applies Civil Practice Law and Rules article 31 to child protective proceedings "unless otherwise proscribed" by Family Court Act article 10. As provided for under CPLR 3121 (a), a party to a civil action whose mental condition is sufficiently in controversy may be compelled to submit to a forensic mental health examination upon motion of a party opponent. A verified petition alleging neglect on grounds of mental illness sufficiently places the respondent's mental state in controversy, to authorize a prefact-finding examination pursuant to CPLR 3121 (a). The standard applicable under CPLR 3121 (a) is whether such an evaluation is "material and necessary" to the petitioner's case.

First, the petitioner has shown that the requested evaluation is material to its case by exhibiting an objective basis for believing that the respondent may suffer from a mental illness.

Here, it must be noted that the respondent repeatedly presented to mental health professionals as suffering from paranoia and delusions. In August 2001, the therapist found respondent to be paranoid and agoraphobic, and recommended that she be evaluated by a psychiatrist in the Brookdale hospital emergency room. What’s more, the MCT, in a letter to ACS, based upon an evaluation of 4 September 2001 and upon conversations with the respondent's therapist, indicated that it was "likely that she is paranoid and delusional." Furthermore, on 15 November 2001 the staff at the Norwalk, Connecticut, emergency shelter observed respondent apparently hallucinating, slapping at herself and reprimanding T to "stop you're making it crawl on me." Also, the crisis center psychiatric nurse evaluating the respondent found her to suffer from posttraumatic stress disorder, severe depression and Myasthenia Gravis, and recommended a hospital evaluation. Moreover, on 20 November 2001, a neighbor reported to the police that the respondent had frozen her pet cat to death under circumstances which indicate that the respondent may have been delusional.

In addition, based upon observations of the respondent's interaction with T, there is reason to believe that her ability to provide T with adequate supervision and guardianship may be impaired. Aside from the possibly false allegation of sexual abuse, the respondent was heard to tell T to stop making some apparently imaginary thing "crawl on" her; she was seen to attempt to strike T with a cord; and, was found by the Connecticut child protective authorities to be unable to manage T's behavior in light of the respondent's own apparent emotional problems.

Second, the petitioner has also shown a need for a forensic evaluation by the absence of an alternate source of information about the respondent's mental health.

Here, in light of the respondent's repeated refusals to comply with recommendations to submit voluntarily to a meaningful evaluation of her mental state, no other source of such information was available to the petitioner. Differential diagnoses were obtained under circumstances of questionable reliability, specifically: the therapist saw the respondent five times; the MCT saw her once under conditions which led the evaluator to deem the evaluation incomplete; and, the psychiatric nurse saw the respondent briefly in a homeless shelter. Clearly, there is no reliable, competent opinion regarding the respondent's mental state, as it affects her ability to care for T.
In sum, the petitioner has shown that the evaluation is material to preparation of petitioner's case, and is necessary as unobtainable from another source.

Under Family Court Act article 10, discovery is limited. Family Court Act § 1038-a preceded the liberal discovery provisions of Family Court Act § 1038 (d), which made clear that general rules of civil discovery apply to article 10 proceedings, "unless otherwise proscribed by xxx article" 10. Thus, Family Court Act § 1038 (d) declared the authority of the Family Court to order discovery in article 10 cases to be coextensive with that possessed by courts in any other proceedings governed by CPLR article 31, except where specifically limited by Family Court Act article 10. Although Family Court Act § 1038-a prohibits the discovery of nontestimonial evidence in article 10 cases, the statute is silent as to testimonial evidence. Therefore, testimonial evidence may be compelled, in a proceeding under article 10, to the same extent as in any other civil proceeding, unless Family Court Act § 1038-a may be read to imply a silent proscription.

In the instant court’s view, section 1038-a was enacted in 1987, in recognition that the judicially crafted exclusionary rule applicable to Fourth Amendment violations does not apply to evidence obtained by governmental authority in child protective proceedings. The Legislature intended by enacting Family Court Act § 1038-a, to limit discovery, by protecting respondents in child protective proceedings from governmental intrusion upon the integrity of their person. The term "nontestimonial" evidence refers to physical evidence compelled from the person, which the Supreme Court has found is protected by the Fourth Amendment requirement of probable cause, but not by the Fifth Amendment privilege against self-incrimination. Family Court Act § 1038-a simply recognizes that when the government seeks to discover evidence by means which intrude upon a person's bodily integrity, the government action implicates the Fourth Amendment prohibition against unreasonable searches and seizures, and should be justified by probable cause that the evidence is reasonably related to establishing the allegations in the petition. This higher burden on parties in an article 10 proceeding was imposed by the Legislature only as to the discovery of "nontestimonial" evidence obtained from a respondent's physical body. In the language of the statute of any legislative intent, there is no indication to circumscribe discovery of testimonial evidence from a respondent in a child protective proceeding under article 10. Additionally, there is nothing in the legislative history of Family Court Act § 1047 (b) or other statutes related thereto which would indicate that the Legislature also intended to extend the protections afforded by the Fifth Amendment to respondents in proceedings under Family Court Act article 10. A child protective proceeding is not a criminal prosecution. A respondent in a child protective proceeding, unlike a criminal defendant, may suffer an adverse inference from his or her silence at trial. A respondent in an article 10 proceeding may be required to answer interrogatories, as in any other civil proceeding.

In analyzing Family Court Act § 1038-a with Family Court Act § 1038 (d), there is clearly no evidence of a legislative intent to extend greater protection to testimonial evidence obtained from a respondent in a child protective case than is afforded any other civil litigant whose mental condition is placed in issue by the pleadings. Rather, Family Court Act § 1038-a demonstrates that the Legislature chose to impose a higher burden of discovery in those instances where evidence is obtained from the person of the respondent, and in no others. If the Legislature did intend to impose stricter standards for the discovery of testimonial evidence, the Legislature would have been equally specific.

Accordingly, the court directed the respondent to appear at a time and place designated for the purpose of submitting to a mental status evaluation by a psychiatrist to be selected by the parties. Family Court Act § 1038-a does not preclude the instant court from ordering that the respondent be examined by a psychiatrist for the purpose of evaluating the respondent's mental condition.

If you find yourself in the same situation as the characters mentioned above, get yourself acquainted with the laws, statutes and case laws involved and learn how you could protect your rights. Contact us at Stephen Bilkis & Associates & speak with our Kings County Family Attorneys. Our Kings County Child Protection Attorneys would be more than honored to assist you.

Father Moves for Custody in Light of Mentally Ill Mother

October 23, 2014,

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.

A New York Divorce Lawyer said that thereafter, a series of litigation between the parties ensued. As relevant to this appeal, within days of the mother's departure, each party commenced an action for divorce in Supreme Court, the father in Ulster County and the mother in Nassau County, each moving, by order to show cause, for an award of custody of the child.

The actions were consolidated and venue was placed in Ulster County. The mother was initially granted temporary custody of the child, with supervised visitation to the father, and remained in Nassau County during the pendency of the action. Throughout the course of the litigation, the father sought and was awarded increased visitation with the child.

A Westchester County Family Lawyer said that by September 2007, when the child was 21 months old, the parties had stipulated to a temporary custody and visitation schedule which provided generous unsupervised and overnight visitation to the father.

A Suffolk County Family Lawyer said that the parties agreed to proceed to trial on the issues of custody and visitation only. Following a 29-day trial, Supreme Court awarded the father sole custody of the child, with liberal visitation to the mother on a set schedule to continue at least until the child began pre-kindergarten.

The mother now appeals.

Eschbach v Eschbach and Matter of Melissa K. v Brian K. held that the principal concern in any child custody dispute is the best interests of the child, to be determined by reviewing such factors as maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent as enunciated in Kaczor v Kaczor and Matter of Smith v Miller and Matter of Torkildsen v Torkildsen.

The court agrees with great respect to Supreme Court's factual findings and will not disturb the court's custodial determination so long as it is supported by a sound and substantial basis in the record as in Matter of Torkildsen v Torkildsen and Matter of Marchand v Nazzaro.

At the outset, the court rejects the mother's contention that Supreme Court distorted the proof submitted by the parties at the trial and ignored relevant evidence in reaching its custody determination. In its thorough, well-reasoned 46-page decision, the court addressed the parties' respective strengths and weaknesses with regard to each of the relevant factors and fully explained its reasons for rejecting the recommendation of the court-appointed expert which is not determinative in a custody case as held in Bates v Bates and Matter of Aldrich v Aldrich. While there was conflicting evidence on some issues — many of which were irrelevant to the best interests of the child determination — the court accepts the Supreme Court's credibility determinations and concludes that the court's custody determination has a sound and substantial basis in the record as can be seen in Matter of Marchand v Nazzaro.

Neither party disputes that, in light of the extreme animosity between them, an award of joint legal custody would not have been in the child's best interests as held in Matter of Cool v Malone and Matter of Yvette v Yvette. The record reflects that the father can provide a stable home life and appropriate living environment for the child. He has resided in the same home in Ulster County for approximately 10 years in the community where he has spent most of his life and where he has a well-established social network and family support. He maintained a flexible work schedule to allow for visitation with the child during the pendency of this matter and expressed his willingness to adapt his lifestyle to care for the child full time should he be awarded sole custody.

The court finds that the record is replete with testimony attesting to the father's devotion to and concern for the child, as well as his daily routine and interactions with her during visitation. Despite evidence that the father suffered anger and frustration after the mother took the child from the marital home, the father's relative fitness as a parent was not significantly called into question by the evidence submitted at trial. Importantly, Supreme Court credited the father's testimony that, were he to become the primary custodial parent, he would allow the mother free and frequent access to the child and, finding no basis in the record to disagree, the court declines to disturb the court's determination in that regard as in Matter of Smith v Smith.

On the contrary, the mother presented evidence that she resides in a home owned by her father in Nassau County where she has substantial support from her family and friends and where the child is engaged in various social and educational activities, yet she presented no witnesses who could attest to her home environment, the stability that she provides to the child or her daily routine or interactions with the child. Although the mother testified that she believed it important for the child to have a good relationship with the father and affirmed that she would cooperate in any way to facilitate that relationship, she prevented the father from having contact with the child weeks after her move to Nassau County, misrepresented that she was exclusively breast feeding the child in order to limit the father's visitation time and opposed many of the father's requests for increased visitation.

Moreover, although not determinative, Matter of Armstrong v Heilker v Heilker and Matter of Bates v Bates held that the mental health of a parent is necessarily relevant in every custody or visitation proceeding.

In the case at bar, the mother's relative fitness was called into question by evidence that she has never fully acknowledged her long history of anxiety and depression and has not sought regular consistent treatment for it.

The court agrees with Supreme Court that the mother's anxiety and depression, if left untreated, could potentially cause harm to the child and that the record lacks evidence that the mother is aware of this risk or is taking adequate steps to prevent future risk to the child.

The court, therefore, declines to disturb Supreme Court's finding that the best interests of the child tip the scale in favor of awarding custody to the father.

Lastly, it is the mother’s argument that the Supreme Court abused its discretion in failing to sua sponte appoints an attorney for the child to represent her interests in the protracted litigation between her parents. This argument is foreclosed by the mother having taken a contrary position before Supreme Court when she affirmatively opposed the father's pretrial motion for the appointment of an attorney for the child as in Mikkelson v Kessler, Maas v Cornell Univ. In any event, while the recommendation of an attorney for the child may be extremely helpful in assessing the best interests of a child, the appointment of such attorney is not statutorily mandated in contested custody proceedings akin to Matter of Amato v Amato and is a matter committed to the sound discretion of Supreme Court akin to Matter of Swett v Balcom. Given the very young age of the child and the absence of apparent prejudice arising from the failure to appoint an attorney to represent her, we discern no abuse of discretion as held in Matter of Burdick v Babcock.

The court has considered the mother's remaining contentions and finds them to be without merit.
The court affirms the order without costs.

For questions regarding the issues and the pertinent facts mentioned in the case above, please feel free to call our toll free number or visit our office nearest you. Nassau County Child Visitation Lawyers and Nassau County Child Custody Lawyers at Stephen Bilkis & Associates are prepared to take your call or personally discuss with you Visitation and Custody Laws. We will be able to help you with your legal dilemma swiftly and favorably.

Husband Claims Aandonment and Adultery in Divorce Proceeding

October 13, 2014,

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.

In support of the within application, the wife alleges that in order to defend the issue of grounds she will have to call various witnesses who reside and work in Westchester County, to wit: the wife's mother; who resides and works in Westchester County. The wife has summarized the nature of the testimony she intends to elicit from said witnesses. She states that each witness will testify that the husband resided in the Dobbs Ferry premises for two and a half weeks and never resided there after May 2008.

Further, the witnesses will deny that the husband asked them to intercede on his behalf on issues relating to the children because the wife would not speak to him. The wife asserts that the witnesses will be inconvenienced if they must travel to Nassau County to testify.

A Westchester County Family Lawyer said that in opposition to the within motion, the husband alleges the following: he moved to an apartment in Massapequa in August 2009; he was a resident of Nassau County at the time of the commencement of the action; all issues of custody and child support have been resolved by the Westchester Family Court; he will admit that he never resided in the Dobbs Ferry residence; and the wife's mother does not work and can drive to Nassau County with the wife.

The wife replies that her mother is employed and would be inconvenienced if forced to testify in Nassau County.

A Suffolk County Family Lawyer said that the husband's second cause of action sounding in social abandonment is devoid of merit. Further, with regard to the cause of action sounding in actual abandonment, the husband admits he did not reside in Dobbs Ferry after 2008.

Accordingly, it appears that none of the three witnesses identified by the wife will have relevant testimony to offer at trial. Nevertheless, the interests of justice require that venue of the action be transferred to Westchester County.

Both parties indicate that custody and child support issues have been adjudicated in the Westchester Family Court, but neither party has provided copies of any orders issued by that court. The husband's prayer for relief set forth in his verified complaint seeks a judgment of divorce incorporating two Westchester County docket support orders, but makes no mention of any docket custody order. The husband's prayer for relief in this action asks that the judgment of divorce grant custody to the wife and grant him child visitation pursuant to a detailed schedule set forth in said prayer for relief.

The Court cannot ascertain whether or not the child visitation sought by the husband reflects the terms of any existing Westchester County Family Court order. Accordingly, it appears that there may be child visitation issues raised in the context of this divorce action. Even if the Westchester County Family Court has issued final orders of custody and child visitation identical to the relief sought by the husband in his within complaint, enforcement or modification issues, often arise during the pendency of the action for divorce.

The parties' children have resided in Westchester County their entire lives and clearly, issues of custody and child visitation, which may arise in the context of a divorce action should be determined in Westchester County, particularly in the event an attorney must be appointed for the children or a forensic evaluation is required.

In addition, the Court notes that the husband has "struck out twice" in the Supreme Court Westchester County. His acquisition of a month-to-month rental unit in Nassau County at a cost of $900.00 a month, appears designed to establish predicate residency and his commencement of an action for divorce in Nassau County constitutes improper forum shopping.

Based upon all of the foregoing, the motion is granted. Venue of the action is transferred to Westchester County. Within 15 days of the date of this order, the wife shall serve a copy of this order upon the Office of the Nassau County Clerk.

Once a divorce order was issued by a court, the children of the separating spouses should not be left behind. They must receive an ample amount of support from their parents. Their needs should likewise be provided. Here in Stephen Bilkis and Associates, we have our Nassau County Child Support lawyers who will assist these helpless children to obtain an amount of support from the able parent. We also have our Nassau County Family attorneys who will help you in your other concerns. Call us now, we will be glad to help you.

Court Looks at Jurisdiction Issue in Divorce Proceeding

October 12, 2014,

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.

A Staten Island Family Lawyer said regarding support of the within application, the wife alleges that in order to defend the issue of grounds she will have to call various witnesses who reside and work in Westchester County, to wit: the wife's mother; who resides and works in Westchester County. The wife has summarized the nature of the testimony she intends to elicit from said witnesses. She states that each witness will testify that the husband resided in the Dobbs Ferry premises for two and a half weeks and never resided there after May 2008.

Further, the witnesses will deny that the husband asked them to intercede on his behalf on issues relating to the children because the wife would not speak to him. The wife asserts that the witnesses will be inconvenienced if they must travel to Nassau County to testify.

In opposition to the within motion, the husband alleges the following: he moved to an apartment in Massapequa in August 2009; he was a resident of Nassau County at the time of the commencement of the action; all issues of custody and child support have been resolved by the Westchester Family Court; he will admit that he never resided in the Dobbs Ferry residence; and the wife's mother does not work and can drive to Nassau County with the wife.

The wife replies that her mother is employed and would be inconvenienced if forced to testify in Nassau County.

The husband's second cause of action sounding in social abandonment is devoid of merit. Further, with regard to the cause of action sounding in actual abandonment, the husband admits he did not reside in Dobbs Ferry after 2008.

Accordingly, it appears that none of the three witnesses identified by the wife will have relevant testimony to offer at trial. Nevertheless, the interests of justice require that venue of the action be transferred to Westchester County.
Both parties indicate that custody and child support issues have been adjudicated in the Westchester Family Court, but neither party has provided copies of any orders issued by that court. The husband's prayer for relief set forth in his verified complaint seeks a judgment of divorce incorporating two Westchester County docket support orders, but makes no mention of any docket custody order. The husband's prayer for relief in this action asks that the judgment of divorce grant custody to the wife and grant him child visitation pursuant to a detailed schedule set forth in said prayer for relief.

The Court cannot ascertain whether or not the child visitation sought by the husband reflects the terms of any existing Westchester County Family Court order. Accordingly, it appears that there may be child visitation issues raised in the context of this divorce action. Even if the Westchester County Family Court has issued final orders of custody and child visitation identical to the relief sought by the husband in his within complaint, enforcement or modification issues, often arise during the pendency of the action for divorce.

The parties' children have resided in Westchester County their entire lives and clearly, issues of custody and child visitation, which may arise in the context of a divorce action should be determined in Westchester County, particularly in the event an attorney must be appointed for the children or a forensic evaluation is required.

In addition, the Court notes that the husband has "struck out twice" in the Supreme Court Westchester County. His acquisition of a month-to-month rental unit in Nassau County at a cost of $900.00 a month, appears designed to establish predicate residency and his commencement of an action for divorce in Nassau County constitutes improper forum shopping.

Based upon all of the foregoing, the motion is granted. Venue of the action is transferred to Westchester County. Within 15 days of the date of this order, the wife shall serve a copy of this order upon the Office of the Nassau County Clerk.

Once a divorce order was issued by a court, the children of the separating spouses should not be left behind. They must receive an ample amount of support from their parents. Their needs should likewise be provided. Here in Stephen Bilkis and Associates, we have our Nassau County Child Support lawyers who will assist these helpless children to obtain an amount of support from the able parent. We also have our Nassau County Family attorneys who will help you in your other concerns. Call us now, we will be glad to help you.