Social Services Brings Child Neglect Case Against Grandmother

April 30, 2016,

A New York Family Lawyer said that, in a neglect proceeding pursuant to Family Court Act. Article 10, the maternal grandmother appeals from an order of the Family Court, Kings County, dated April 7, 2009, which suspended her visitation with the subject child and directed the Administration for Children's Services to instruct the subject child's school not to provide any information to her or allow her access to the subject child. Assigned counsel has submitted a brief in accordance with one case decided by the court, in which he moves to be relieved of his assignment to prosecute this appeal.

In child protective proceedings, the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that "proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect". Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected.

A New York Divorce Lawyer said that the appeal from so much of the order as suspended visitation between the maternal grandmother and the subject child must be dismissed as academic because that portion of the order has been superseded by a permanency hearing order dated June 11, 2009, awarding the maternal grandmother visitation with the subject child in accordance with the permanency plan.

A Queens Family Lawyer said that we have reviewed the record and agree with the maternal grandmother's assigned counsel that there are no no frivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is granted.

A Long Island Family Lawyer said that, in another case, in a proceeding pursuant to Social Services Law § 384-b to terminate the mother's parental rights by reason of her mental illness, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County, dated March 27, 2009, as, upon terminating her parental rights, in effect, denied her application for visitation with the subject child.

The court ordered that the order of fact-finding and deposition is reversed insofar as appealed from, on the law, without costs or disbursements, and the issue of whether it is in the subject child's best interests for the Family Court to direct visitation between the mother and the subject child after the termination of the mother's parental rights shall be determined after a hearing, which hearing and determination shall be made by the court in which an adoption petition is pending or, if no such petition is pending, the hearing and determination shall be made by the Family Court.

After terminating the mother's parental rights, the Family Court should have provided for the determination, after a hearing, of the issue of whether it is in the subject child's best interests for the Family Court to direct visitation between the mother and the subject child, as requested by the mother. Although "there is no statutory authorization for a court to order continued visitation with the parents once their rights are terminated", courts have the inherent authority to provide for visitation between an adopted child and a member of his or her birth family where such visitation is in the best interest of the child and does not unduly interfere with the adoptive relationship.

The court ordered in the first case that the appeal from so much of the order as suspended visitation between the maternal grandmother and the subject child is dismissed as academic; and it is further, ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
If you are fighting for visitation rights, you will need the help of a competent and reliable counsel to handle your case. Seek the legal advice of a Kings County Family Attorney and Kings County Child Custody Attorney at Stephen Bilkis and Associates in order to properly handle your case. Call us now for free consultation.

Father Requests Return of Children

April 29, 2016,

A New York Family Lawyer said this is a contested matrimonial action before the Supreme Court of the State of New York.

A New York Divorce Lawyer said that on 6 January 2010, the plaintiff, the husband moved by order to show cause and prayed for an order directing the return of their two children, A, age 7, and M, age 4, to New York State, for an order awarding the him temporary custody of their children, and for an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

A Nassau County Family Lawyer said that on 9 April 2010, the wife opposed the husband's application and cross moved by order to show cause and prayed for an order dismissing the husband's application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for her to commence a custody proceeding in California, and for an order directing her husband to pay all costs associated with Court appearances, including but not limited to, transportation costs including airfare, car rentals, hotel costs, and daycare.

On 10 June 2010, in opposition to the wife's cross motion, the husband moved by order to show cause and prayed for an order directing his wife to immediately return the children at the conclusion of the 2010 school year, for an order directing that the minor children reside with him pending the jurisdictional decision of the New York Court, and for an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to the New York Court.
The Supreme Court of New York now has before it these applications representing the second request for relief brought by the husband.

A Staten Island Family Lawyer said that on 17 July 2009, the husband filed two separate petitions before the New York State Family Court Kings County requesting the immediate return of his children to New York. However, those petitions were later on withdrawn, without prejudice, by the husband prior to disposition, and alleged that the petitions were withdrawn on his mistaken belief that he and his wife, the parties, could resolve their differences without court intervention.

On 29 December 2009, this matrimonial action was commenced by the husband. Both the summons for divorce and the husband's first order to show cause requested that their children be returned to New York.
On 19 January 2010, the wife appeared pro se in the New York action and the preliminary conference and the order to show cause were adjourned to 25 February 2010. On the adjourn date, the wife retained counsel and appeared by counsel.

On 25 February 2010, the preliminary conference order was issued which stated that the issues of custody, parental access, child and spousal support, equitable distribution, and the issue of jurisdiction to determine custody were unresolved. Simultaneously, a separate temporary order was issued, on the consent of both parties, which directed that the husband provide interim child support and for him to continue to pay the children's private school tuition, that the husband pay the lease payments on the Lexus automobile and for the wife to remain responsible for the insurance, registration and operating expenses of the Lexus, that the children would remain with the wife in California, that the husband would have temporary access to the children in California, and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. It was agreed that the husband would be provided daily phone access, and the wife was to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the respective jurisdictional claims of the parties.

On 8 April 2010, the Court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. On 12 April 2010, the Court appointed a counsel to represent the children.

On 22 April 2010, although represented by counsel in New York, the wife appeared pro se and filed an ex parte application in California requesting for emergency relief. Her order to show cause was heard and as a result of that application, the California Court granted the wife a temporary order of sole legal and physical custody of the subject children.

Upon receipt of that order, the New York court communicated with the California court as required by the rules and forwarded copies of all orders issued by it, reported back to the parties and counsel the substance of those communications, and provided access to counsel of the confirming e-mails. On 15 June 2010, in recognition of the New York Court's priority to determine which state is the "home state," the California court issued an order deferring the case to the California court.

On 25 May 2010, this Court, the New York Court, issued an order setting the hearing to resolve the issue of jurisdiction on 3 August 2010.

On 6 July 2010, in partial response to the husband's 10 June 2010 order to show cause, the Court grated him interim relief which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California. However, the husband did not exercise his right to visitation in California. Thus, the children were produced by the wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the husband, the children’s father.

On 3 August 2010, during hearing, the wife appeared pro se, the husband was represented by counsel and the children were represented by their attorney. Both parties testified on their own behalf and no other witnesses were called. After testimonies were heard, the hearing was adjourned for the submission of closing statements. All parties submitted statements in support of their respective positions.

After having had the opportunity to assess and weigh the demeanor and credibility of the witnesses and the evidence submitted in support of the respective positions of the parties, the Court found that many of the essential facts are not in dispute. Its findings of fact are as follows:
The husband is a self- employed dentist licensed to practice dentistry in both New York and California while the wife is a former medical resident now engaged as a research assistant at UCLA.

Since 16 January 1999, the parties have been married and have resided in New York even prior to their marriage. The two subject children were born in New York and resided there exclusively since their births - in 2003 for A and 2006 for M. Until July 2009, the children attended daycare and private nursery schools in Brooklyn, New York and any child care providers were New York residents. Medical care was received in New York as well. While in Brooklyn, the family resided in an apartment owned and furnished by the maternal grandmother.
Both parties, the husband and the wife have extended family living in California, and they reside in close driving proximity. Both sets of grandparents and the husband's two sisters live in driving distance to the wife's apartment in California. One of the paternal aunts visits the children and has at times brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children. The children sleep over at their grandparents' home once a week and are taken to school by them the following day. While the maternal grandmother owns properties in New York, the parties do not have any close family living in Brooklyn or elsewhere in New York City.

Later on, the parties agreed to relocate to California. This move was suggested by the wife's mother, and to assist the wife in obtaining employment. The husband agreed to and participated in the plans to relocate which was assumed by him to be their mutual decision. According to the husband, the move reflected an economic decision to assist his wife's efforts to find employment since she had been out of work for approximately two years – that this move was for her to apply to another residency program so she might complete her medical training.
On 7 July 2009, the wife and children left New York and moved into an apartment in Sherman Oaks, California for which the husband signed the lease. The children were enrolled and attended private schools in California for which the husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival. The husband remained in New York after the wife and children moved in order to earn additional income prior to joining his family.

Approximately two weeks later and prior to the husband leaving New York, the wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children, and that she wanted a divorce. Despite how hard this was for him, the husband still wanted to reconcile with his wife. Thus, he still left New York and traveled to California and stayed at his parents' home. For approximately six weeks, the husband tried to look for employment but was unable to do so. Thus, he returned to New York.

Upon the husband's return to New York, he vacated their former marital residence and returned the furniture therein to his mother-in-law as it belonged to her. He has since been sued for alleged arrears in unpaid rent. Monies that had been placed in their joint bank accounts in New York had also been removed by the wife in anticipation of her move to California.

Clearly, while the husband concurred in the decision to move the family to California, the wife's undeclared intention was to separate from her husband and remain in California with the children.

Since July 2009, the children with their mother and her boyfriend, "R" have lived in an apartment in California. The children share their own room, use the family computer transported to California by the wife, and have each attended school and/or day care in California since they left New York. The husband consented to the children remaining in California during the last school year.

The Court’s decision:

Under the law, DRL §76(1)(b), New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within six months prior to the commencement of the action. The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state.

As discussed, the subject children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced on 29 December 2009 with the purchase of an index number and the filing of a request for judicial intervention. Although the divorce action was timely commenced, it must be noted that the husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children's relocation to California.

Clearly, the New York Court has jurisdiction to determine custody as it is the home state of the children. However, under the circumstances, the Court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal, but rather the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA, and that it is also mandated to communicate with the California court prior to determining which state's proceeding should take precedence.
After complying with the provisions of the relevant sections, the Court has determined that California has adopted the UCCJEA and that the statutory framework in California and New York are substantially the same. While the communications between the courts need not be on the record, all parties have requested that they be permitted to review all e-mails exchanged between the courts. That application was granted.

Going now to the gist of the case, the wife filed an application for custody in California on 15 April 2010, approximately four months after the New York action was commenced. The California petition did not specify that there was a custody proceeding pending in New York, only that the husband was making attempts to return the children to New York. In response to the wife's California application, the court exercised "temporary emergency jurisdiction" and awarded the wife temporary sole custody pursuant to California Family Code 3424 as stated in its order dated 22 April 2010. In deferring to the New York Court to determine jurisdiction, the California court stated in its order dated 15 June 2010 that the determination was without prejudice to the wife’s presentation of any evidence on the issue of jurisdiction or on whether California was a more convenient forum.

In order for the Court to determine if New York is an inconvenient forum, it must address the delineated factors set forth in DRL §76-f.

Here, the court found that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the husband. Although his initial consent was not an informed consent, the husband later agreed that the children should continue their school year in California without disruption, and he withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children's removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.

The court also noted the distances between the two courts, New York and California jurisdiction, as measured by MAPQUEST, is 2, 787 miles.
The Court also considered the parties' relative financial circumstances. While neither party submitted their complete financial information, there were other factors. While both parties were employed, the husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. Also, the husband's compliance with the Court directives for payment of legal fees for his children had not been consistent.
It is important to note that neither party agreed to which state should have jurisdiction. While the husband agreed to the children's move, he was unaware that his wife did not want him to move with them; while he continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.

While one year may sound like an insignificant period of time, it actually isn’t in the lives of the very young subject children. The most important factor to note here is that all current and relevant information is now in California. If the New York Court takes jurisdiction, the children would need to be interviewed and observed by the court appointed forensic evaluator and would need to appear for an in camera hearing. This disruption in the lives of the children is simply unjustifiable and burdensome.
Indeed, each court has the ability to decide the issues expeditiously. However, considering the circumstances of the case, children involved, California Court is the more convenient forum to determine the issue of custody. Besides, New York Court was assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody.

However, New York Court still retains jurisdiction over the divorce. Certainly, New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the wife will have to address those issues before it by complying with court ordered discovery, appearing for compliance and pre-trial conferences and, if not resolved, appearing for trial at such dates and times as the Court sets.
Consequently, after the children's visit with the husband in New York, they were returned with the wife to California to commence school. The pendente lite order of support was ordered to remain in effect pending conclusion of the parenting issues. All remaining issues concerning the children (custody and parental access) were then set to be heard before the Superior Court of California, County of Los Angeles, Los Angeles, California.

Custody, visitation or parental rights, more often than not, are the hardest issues a court must resolve in every divorce case. If you ever find yourself knotted in a similar situation, please do contact Stephen Bilkis & Associates for a free consult. Seek legal advice from our experts, to wit: Kings County Child Custody Lawyers, Kings County Child Visitation Lawyers, Kings County Family Lawyers, etc.

Mother Appeals Ruling Terminating Her Parental Rights

April 28, 2016,

A New York Family Lawyer said this is a motion brought before the Appellate Division of the Supreme Court of the State of New York, Second Department, by the respondent on appeals from two orders of fact-finding and disposition of the Family Court, Kings County, (one as to each child), both dated 9 June 2006, inter alia, to amend a decision and order of the Court dated 30 October 2007.

The court denied the motion, based upon the papers filed in support of the motion but ordered granted that branch of the motion which was to amend the decision and order. Thus, the decision and order of the Court dated 30 October 2007, in the above-entitled matter was recalled and vacated. The following decision and order was substituted.

The case:

A New York Divorce Lawyer said that pursuant to Social Services Law § 384-b, in two related proceedings to terminate the mother's parental rights on the ground of permanent neglect, the mother appealed from two orders of fact-finding and disposition of the Family Court, Kings County (one as to each child), both dated 9 June 2006, which, after fact-finding and dispositional hearings, found that she had permanently neglected the subject children, terminated her parental rights, and transferred custody and guardianship of the children to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption. Thereafter, it was ordered that the orders of fact-finding and disposition must be modified, on the facts and in the exercise of discretion, by deleting the provisions thereof terminating the mother's parental rights and transferring custody and guardianship of the children to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption; the orders of fact-finding and disposition was affirmed, without costs or disbursements, the findings of permanent neglect must remain in effect, and the proceedings were remitted to the Family Court, Kings County, for a new dispositional hearing and new dispositions.

A Westchester County Family Lawyer said that legislature has placed primacy on the child remaining with the natural parent because it found that the child's needs are usually best met in the natural home and that parents are generally entitled to bring up their own children. It is the State's primordial obligation to help the family stay together. Thus, in proceedings involving termination of parental rights based upon permanent neglect, the threshold consideration is whether the presentment agency discharged its statutory obligation to exercise diligent efforts to encourage and strengthen the parental relationship.

A Suffolk County Family Lawyer said that here, the Family Court concluded that the termination of parental rights was warranted because, although the presentment agency made diligent efforts to assist and encourage a meaningful relationship between the mother and her children, the mother failed to avail herself of such efforts or plan for the children's future. However, at the fact-finding hearing, the testimony adduced revealed that the mother did make significant strides toward strengthening her parent-child relationships during the subject time period. For instance, concern is justifiable on the fact that the mother was chronically late in arriving for visitation, and that she missed some of her scheduled visits. Nevertheless, the caseworker considered the mother to be in compliance with the agency-formulated service plan for much of the designated period of neglect. Sometime in September 2004, the caseworker even congratulated the mother on her completion of the service plan, which included visitation with the children, having an income, and obtaining public assistance, as well as on her successful completion of a 22-week parenting skills program, and for being generally cooperative. Moreover, the mother provided proof of suitable housing for her and the children—a two-bedroom apartment in a building owned by her father.

In view of the foregoing, it is the court’s conclusion that the termination of the mother's parental rights was unwarranted. What the Family Court should have done was to suspend judgment for one year, at which point it would have been in a better position to evaluate the mother's progress and to determine whether the children's best interests would be endangered by their return to the custody of the natural mother.

Now, since more than one year has elapsed since the dispositional hearing was held, the entry of a suspended judgment at this time is imprudent. Thus, the matter must be remitted to the Family Court, Kings County, for a new dispositional hearing. Thereafter, the court must then determine, among other things, whether the mother met the appropriate conditions outlined in 22 NYCRR 205.50, prior to the issuance of the two orders dated 9 June 2006, and more specifically, whether she had been able to build upon her apparent successful beginning in forging a healthy relationship with her children up to that time, or whether, in light of her present circumstances and those of the children, the best interests of the children would require a termination of parental rights.

A child’s custody, more often than not, is the hardest issue a court must resolve. The best interest of the child must always be taken into consideration despite how hard it may seem. If you ever find yourself in a similar situation, please do contact Stephen Bilkis & Associates for a free consult. Seek legal advice from our experts - Kings County Child Visitation Lawyers, Kings County Child Custody Lawyers, Kings County Family Lawyers, etc.

Court Decides if Attorney Should Be Removed from Case

April 25, 2016,

A New York Family Lawyer said this was a case before the Supreme Court of the State of New York in Kings County.

It involved a Notice of Motion, Order to Show Cause, Petition and Cross Motion where the court was called upon to determine (1) whether the attorney for the defendant's application to be relieved as attorney of record should be granted; (2) if the defendant's applications brought pro se while still represented by counsel were properly before the court; (3) whether or not the defendant was entitled to a 30 day stay of all proceedings in the event counsel was relieved pursuant to CPLR 321(c); (4) whether or not the defendant was entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have had the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child's genitalia and buttocks which were annexed exhibits to defendant's order to show cause.
The counsels of defendant's application to be relieved:

A New York Divorce Lawyer said the defendant sought to relieve counsel, Mr. G, as the attorney of record based upon an irretrievable breakdown in their attorney client relationship and submitted in her most recent application disparaging statements about counsel and his representation of her.
On 5 November 2010, defendant's counsel, Mr. G, moved by order to show cause to be relieved.
On 17 November 2010, in open court, defendant stated that she wished to discharge Mr. G and asked for the appointment of a new counsel pursuant to Judiciary Law section 35(8)(b).
Mr. G is defendant's third attorney of record.
Previously, defendant was represented by a pro bono counsel, a New York City law firm. On 10 March 2010, a consent to change attorney was filed. This was granted and the defendant was substituted as attorney pro se. On 5 May 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of custody, visitation and an order of protection. This attorney simultaneously represented defendant in a Family Court, although it was not initially disclosed by defendant. On 10 August 2010, defendant was again substituted pro se for this attorney on consent. On 13 August 2010, the attorney moved by order to show cause to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel, Mr. G, unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant again sought to have the court appoint her another attorney.

A Manhattan Family Lawyer said that on 7 October 2010, Mr. G represented the defendant in an all-day temporary custody hearing. The court awarded temporary custody of the infant issue to the father since he is the more stable parent at the time. At that time, the court found that plaintiff was a victim of domestic violence. It was found that on one occasion, he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. It was indicated in that petition that there were "no prior applications" for an order of protection notwithstanding the application in the instant matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure of the defendant's application in Queens County, the court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. The court informed counsel and the parties of this on the record in open Court. Upon written application, the court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on 17 November 2010. That hearing was adjourned so Mr. G could make the instant application to be relieved because of defendant's alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and did not inform Mr. G of her intent to do so. On 22 November 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

Consequently, Mr. G requested a 30-day stay of all proceedings pursuant to CPLR 321 (c). The court then scheduled the hearing on defendant’s request for an order of protection first scheduled for 10 November 2010, and adjourned to 17 November 2010 at counsel’s request. However, this instant application prevented that hearing from going forward and that that hearing was rescheduled on 10 December 2010.

The defendant's pro se applications:
On 9 November 2010, defendant filed her first for pro se order to show cause and sought temporary custody of the parties' child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court.
On 17 November 2010, defendant filed her second another order to show cause. Defendant sought temporary custody, an expanded visitation schedule, new counsel, forensic evaluation, and for the court to change the attorney for the child. Defendant annexed to this application photographs of their child's genitalia and the matter removed from their child's nose by insertion of a cotton swab. These photographs were later removed from the application, placed in a sealed envelope, and maintained by the part clerk.
The third order to show cause, like the two preceding, sought, inter alia, similar requests for relief.
The plaintiff's application:
On 17 November 2010, plaintiff moved by order to show cause and sought the suspension of visitation and supervised visitation - returnable on 10 December 2010.
The appeal:

A New York City Family Lawyer said that the Appellate Division, Second Department, defendant filed an appeal pro se. She sought leave to appeal two orders of the court dated 6 October 2010 and 7 October 2010 and prayed to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County.
On 18 November 2010, the Appellate Division, Second Department rendered a decision and order on motion denying the application. The court denied that branch of the motion which was for leave to appeal; denied as academic the branches of the motion concerning the awarding of custody of the subject child pending hearing and determination of the appeals, the reinstatement of a certain order of protection, the poor person relief, the relieving of the attorney for the child and the appointment of a new one, and the changing of venue of the matter to the Family Court, Queens County.

The interpreter:

Initially or on defendant’s first appearance, she requested for a Mandarin interpreter. This was provided for by the court despite the fact that defendant often lapsed into using the English language or answered questions in English before the translation was even completed.
At the temporary custody hearing, defendant did not request for an interpreter and testified in rapid and competent English. In fact, the court even had to reprimand defendant to slow down because of her rapid speech pattern.
Moreover, plaintiff's counsel also represented to the court that defendant appeared at the Appellate Division, Second Department and spoke in English. All counsels also indicated that defendant conversed with them in English. The court had also observed that defendant speaks in English, answers in English, responds to her attorney while the court and others were speaking in English, and all of defendant's submission were in English.
Thereafter, defendant requested for an Indonesian interpreter for the first time. On 17 November 2010, the Indonesian interpreter was present in court. However, defendant did not use the interpreter at all times. Defendant readily understood and spoke English in response to the court's questions to Mr. G, and responded to Mr. G in English.

Defendant's counsel also noted that defendant recently became a United States citizen and all her written submissions were hand written in English.

The following paragraphs were the Court’s ruling:

Relieved as Counsel:

According to Mr. G, in his affidavit, defendant had become increasingly uncooperative. Despite Mr. G’s repeated attempts to go over the substantive issues of the case and his advices, defendant still refused to listen – to adhere and /or blatantly ignore. Furthermore, defendant filed an Appeal and Family Offense Petition in this matter without consulting him. In fact, the filing of the Family Offense petition, which was filed in Queens County Family Court, was not known to Mr. G and he found out about it only after the Attorney for the plaintiff notified him.

Here, it is clear that there was a breakdown in the attorney client relationship between defendant and Mr. G. Defendant's conduct rendered it unreasonably difficult for Mr. G to carry on his employment. Thus, Mr. G can no longer serve as the attorney of record.

Generally, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice. The defendant has the right to discharge her privately retained attorney of record. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court. The court's decision should not be overturned absent a showing of an improvident exercise of discretion.

The pro se motion by litigant represented by counsel:

A defendant's filing of motions and orders to show cause and the seeking of relief in different courts without notifying his lawyer is a per se basis to be relieved as counsel of record.
The rule that a client has an absolute right to dictate the course of the litigation is only true so long as the acts are not frivolous. A client must inform his or her lawyer of their actions at all times and should not be filing pro se applications on their own while still being represented by counsel, as a regular course of conduct, unless extreme special circumstances exist. Courts do not want to prevent a litigant who sought an order of protection or custody order from proceeding pro se, if for example they could not reach their attorney or a serious fundamental disagreement existed between counsel and client. The failure to notify counsel of the acts of the client and the effects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis.

There is a plethora of case law on the issue of a litigant’s right to file a pro se motion while represented by counsel. However, the case law emanates from the criminal field. It was held in these criminal cases that "a criminal defendant has no Federal or State constitutional right to hybrid representation. While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, it does not guarantee a right to both. These are separate rights. To choose one is to forego the other. A litigant should proceed in a civil proceeding by way of a pro se application only under rare and special circumstances and must always inform their attorneys of their intentions.

The appointment of counsel:

Defendant again requested for the nth time that the court appoint her a new counsel to be paid with government funds. According to her, she needed a counsel who truly understood domestic violence and was ready for her case.

According to plaintiff in its opposition, defendant admitted that after being served with the summons and complaint she transferred $146,000.00 which had been in her possession for a number of years to Jakarta, Indonesia; that she attempted at the last oral argument to submit written documentation.
Apparently, defendant admitted to sending a large sum of money out of the country shortly after she was served with divorce papers and now claims indigence as a basis for court appointed counsel. The court finds this problematic. To provide a court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons poses a problem.

Regardless, the court recognizes that the right of parties to counsel in a custody or visitation dispute is fundamental. This is also true in requests for a temporary order of protection. Thus, a counsel was ordered to be appointed for defendant by separate order subject to another order that if it is found at trial that defendant secreted or transferred separate or marital assets, then the costs of the court appointed attorney to the government may be ordered reimbursed. Consequently, defendant was advised to fully cooperate with her lawyer. Inasmuch as the first assigned attorney sought to be relieved and defendant thereafter hired private counsel, the court need not reach the question of whether or not defendant had the right to discharge assigned counsel. However, defendant was cautioned that the discharge or failure to cooperate with the newly appointed counsel may result in necessitating that defendant proceed self-represented in the future.
CPLR 321 (c) stay:
While a litigant is usually entitled to a 30-day stay pursuant to CPLR 321 (c) to obtain new counsel, there must still be a request for a stay by outgoing counsel and a request by the defendant herself that counsel be assigned by the court and paid for by public funds.
Here, it is the opinion of the court that, with the appointment of counsel, the need for a 30-day stay must be obviated. However, defendant was enjoined from proceeding pro se in Supreme Court without notifying her attorney and may only proceed pro se if she is unable to contact that attorney. The court took into consideration the fact that the issuing of a stay would affect the parties' rights to seek judicial relief during the 30-day period. Defendant was thus advised that in the event she wanted to seek further relief from the Family Court, she must inform the Family Court of the existence of the case.

Moreover, the court has on the record removed all of the photographs of the child's genitalia and were kept sealed by the clerk of the part together with any copies.

Plaintiff was awarded temporary custody of the parties' child after a full evidentiary hearing and plaintiff was the only individual authorized to obtain medical services or treatment for the child absent an emergency. While defendant agreed to stop undressing the child at the police precinct during exchanges of the child, she was also ordered to stop bringing the child to emergency rooms and doctors absent a true medical emergency. While defendant claimed ACS did not return her phone calls, if she truly believed that the child was neglected, she should have contacted the ACS hotline.
The court also directed the defendant not take photographs of the child's genitalia or stick cotton swabs in the child‘s nose to remove matter and then photograph the same and attach it to papers alleging to show the court that the child has an illness.
Interpreter:

In certain types of proceedings, there is an absolute right to an interpreter. However, here, it is clear that the defendant was able to speak and rapidly respond in cohesive and intelligent English. Thus, the Court did not, at this juncture, order an interpreter for her. According to the evidence presented, defendant has prepared extensive documents in English, readily conversed in English, and checked "English" as her language on Hospital forms. What is more, the Court has observed her speak and understand English.

In the Matter of Ejole M, the Appellate Division, Second Department, held that “as a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense. Where a court is put on notice that a defendant has severe difficulty in understanding the English language, it must inform him or her that he or she has a right to a competent translator to assist him or her, at State expense, if he or she cannot afford one. The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights.”

On 7 October 2010, defendant participated in a temporary custody hearing. Although a Mandarin interpreter had been provided for prior appearances, defendant chose to proceed with the temporary custody hearing without the services of an interpreter. at the hearing, the defendant's testimony was coherent and comprehensible. There was no manifestation of a need for an interpreter. All of her testimony was understood by the court and it was clear that she understood the court.

Obviously, defendant understands the English language and successfully communicates in the English language. Thus, defendant’s application, under these circumstances, was denied.
The court’s order:

The issue of defendant's request for an order of protection and plaintiff's request for suspension of visitation would still be the subject of an evidentiary hearing. If properly served, the court would hear oral argument of defendant's other orders to show cause which appear in part to be best delineated as motions to renew or reargue on 10 December 2010. Thereafter, an attorney for defendant and a forensic shall be appointed by separate orders, and the cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimburse the State of New York for her share.

For legal advice on matters similar to the above stated case, get in touch with a Kings County Family Attorney, a Kings County Divorce Attorney or a Kings County Child Custody Attorney at Stephen Bilkis & Associates. Have a free consultation with our experts and plan the legal steps necessary to protect your rights or that of your child’s.

Is Grandparent Visitation Unconstitutional?

April 24, 2016,

A New York Family Lawyer said this is an appeal brought before the Supreme Court on the issue of whether Domestic Relations Law § 72, New York's grandparental visitation statute, is unconstitutional on its face in light of the decision of the United States Supreme Court in Troxel v Granville (530 US 57). The court granted the motion and "deemed" the statute to be unconstitutional. The court ruled that the statute is not facially invalid.

The petitioner, a grandparent, commenced this proceeding pursuant to Domestic Relations Law § 72 to obtain visitation with his 15 minor grandchildren.

The respondents are the grandchildren's parents (the parents).

The petitioner and his wife separated following marital difficulties. Since the separation, the parents have refused to permit the petitioner to visit or have a relationship with his grandchildren.

A New York Divorce Lawyer said the parents made a preanswer motion to dismiss the petition on the ground that Domestic Relations Law § 72 violates the Fourteenth Amendment of the United States Constitution based on the recent decision of the Supreme Court of the United States in Troxel v Granville.

A Brooklyn Family Lawyer under the Domestic Relations Law § 72, "where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."

The Washington State under Wash Rev Code § 26.10.160 [3]), the nonparental visitation statute at issue and as discussed in the Troxel case, permits "any person" to petition for visitation rights "at any time" and authorizes a court to grant visitation whenever it "may serve the best interest of the child."

A Bronx Family Lawyer said in the case of Troxel, the paternal grandparents commenced a proceeding to obtain additional visitation with their two grandchildren. While the mother did not refuse all visitation, she sought to limit it. The court, after trial, granted the grandparents increased visitation. When the case finally reached the Washington Supreme Court, that court found the statute to be facially invalid under the Federal Constitution because it unconstitutionally infringed on the fundamental right of a parent to rear his or her children. The United States Supreme Court affirmed the dismissal of the grandparents' petition, but declined to hold the Washington statute unconstitutional on its face. The court held in a plurality of opinion that the statute was unconstitutional only as applied to the facts of the case. According to the Justice of the Court who authored the plurality opinion, the Washington statute was "breathtakingly broad" in that it permitted any third party seeking visitation to subject a parent's decision regarding visitation to court review, according no deference to the parent's decision. The statute did not even require a court to afford a parent's decision any presumption of validity or to give the parent's decision any weight whatsoever. When the Justice reviewed the trial court's decision, he found that the court's order was based on a "mere disagreement" with the mother's decision and not on any special factors that might justify the state's interference with the mother's rights. The problem, as articulated by the Justice, was not that the trial court intervened, but that when it did so, it gave no special weight at all to the mother's determination of her children's best interests. As a matter of fact, the trial court applied the opposite presumption, presuming that grandparental visitation would be in the children's best interests unless it was shown that the children would be adversely impacted. The Justice gave emphasis to the fact that a decision regarding visitation is for the parent in the first instance and, if a fit parent's decision becomes subject to judicial review, the court must afford at least some special weight to the parent's decision. The plurality did not define the precise scope of the parental due process right in the visitation context and stated that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied. While the Washington Supreme Court had the opportunity to give the statute a narrower reading, it declined to do so.
Here, contrary to the parents' contention, the Troxel case does not mandate a finding that Domestic Relations Law § 72 is unconstitutional per se. As held in the case of United States v Salerno, 481 US 739, 745, a facial challenge to a legislative Act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. While a statute might operate unconstitutionally under some circumstances, it is insufficient to render it entirely invalid. As held in a plethora of cases, legislative enactments are presumptively valid and a party challenging a statute must demonstrate its invalidity beyond a reasonable doubt. That burden was not met in the instant case.

Domestic Relations Law § 72 can be, and has been, interpreted to accord deference to a parent's decision, although the statute itself does not specifically require such. It was drafted much more narrowly than the Washington statute. If the United States Supreme Court did not declare the "breathtakingly broad" Washington statute to be facially invalid in the Troxel case, then, of course, the more narrowly drafted New York statute is also not unconstitutional on its face. The Court even stated that it was hesitant to hold specific nonparental visitation statutes unconstitutional per se because much state-court adjudication in this context occurs on a case-by-case basis. The Troxel case does not prohibit judicial intervention when a fit parent refuses visitation, but only requires that a court accord "some special weight to the parent's own determination" when applying a nonparental visitation statute.

Applying the foregoing, the Supreme Court erred in concluding that Domestic Relations Law § 72 is unconstitutional per se and in dismissing the petition on that ground. It must be noted that the parents' motion raised only the issue of whether Domestic Relations Law § 72 is facially invalid under Troxel. In determining that it is not, the court cannot express any opinion with respect to the application of the statute to the facts of the case.

Thus, the order was reversed, on the law, with costs, the motion was denied, the petition was reinstated, and the matter was remitted to the Supreme Court, Kings County, for further proceedings.

Kings County Child Visitation Attorneys, Kings County Child Support Attorneys and Kings County Family Attorneys at Stephen Bilkis and Associates are the best in the legal field. At our firm, you can be sure that your rights are protected and enforced. Child visitation, child custody and child support issues are only a few of the many fields our experts are experienced with. We have in our team top notch lawyers who can help you in your legal quandaries. Call us at our toll free number or visit our firm near you for advice.

Social Services Seeks to Terminate Parental Rights of Father

April 23, 2016,

A New York Family Lawyer said this is a proceeding pursuant to Social Services Law § 384-b to terminate parental rights of the natural father. The petitioner, Little Flower Children's Services, appealed from an order of the Family Court, Kings County dated 22 September 1993, which dismissed the petition. The court affirmed the order, without costs or disbursements.
On 4 December 1985, SG, the subject child in this termination of parental rights proceeding was born.

Sometime in November 1987, when SG was less than two years old, the Commissioner of Social Services removed SG from her mother's care because of her mother's drug use, and placed the child with her maternal aunt. SG has remained in her maternal aunt's home since her initial placement over six years ago, and SG’s mother has voluntarily surrendered her parental rights to the child.

A New York Divorce Lawyer said sometime in 1988, the respondent DJ filed a paternity petition in the Family Court, Kings County, seeking to be legally adjudicated as SG’s father. Subsequently, an order of filiation was entered, and DJ was awarded weekend visitation with the child.

Over the next two years, DJ’s mother regularly brought SG to her home on Friday evenings, and returned the child to the care of her maternal aunt on Sundays. DJ either visited the child at his mother's home, or spoke to her on the telephone. Even though the paternal grandmother was not permitted full weekend visitation with the child after Little Flower Children's Services became the supervising agency in September 1990, she continued to take SG to her home on Sundays.

A Queens Family Lawyer said sometime in the fall 1987, DJ entered podiatry school. In 1991, he completed his studies. DJ then commenced a residency program in July 1991 which required him to be at the hospital at least five days per week, and to work some weekends. He was "on call" seven days per week. Despite his schedule, DJ claims that he continued to visit SG at his mother's home "whenever" he could, and that he telephoned whenever he is unable to visit.
Sometime between September 1990 and April 1991, while DJ was involved in his residency program, the agency caseworker assigned to SG’s case made repeated efforts to contact him. After being able to contact DJ in April 1991, the caseworker met with him and informed him of the need to maintain biweekly visitation with SG at her foster home, attend a parenting skills program, and remain in touch with the agency. Between May 1991 to 11 August 1991, after several more conversations and one more meeting, the caseworker had no further contact with DJ.

A Long Island Family Lawyer said sometime in May 1992, the agency commenced the instant termination proceeding against DJ and alleged that he had permanently neglected his daughter, SG. After a fact-finding hearing, the Family Court dismissed the petition and concluded that the agency had failed to exercise diligent efforts to reunite DJ with SG.

The court agrees, and now affirms.

In any permanent neglect proceeding, the threshold inquiry by the court must be whether the agency exercised diligent efforts to strengthen the parental relationship. As provided for under Social Services Law § 384-b(7)(f)(3), diligent efforts by an agency include provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated. An agency is required to mold its efforts in the context of and in recognition of a parent's individual situation.
Indeed, the agency here offered the father a referral to a parenting skills program, and encouraged him to visit the child on a regular basis at her foster home. However, it is clear that the primary obstacle which prevented DJ. from assuming full custody of SG was his involvement in a demanding medical residency program, which left him insufficient time to be her primary caretaker on a day-to-day basis. Based upon this circumstance, the agency should have made meaningful efforts to assist the father in planning a feasible alternative to continued foster care, such as referring him to appropriate day care or after-school programs, or exploring his suggestion that SG be placed in the care of her paternal grandmother until he completed his residency. The agency did not make such efforts. The agency failed to exercise diligent efforts to reunite SG with her father. Thus, the court found it proper to dismiss the petition.
For cases involving child visitation, child custody, child support, and the like, contact us at Stephen Bilkis & Associates for legal assistance. Our Kings County Child Custody Lawyers, Kings County Child Visitation Lawyers are the best in the field. Call our toll free number or visit any of our offices for an in depth review of your legal dilemma. We are trained to defend and uphold your rights under the law.

Wife Seeks to Obtain TRO Against Husband

April 22, 2016,

A New York Family Lawyer said Mr. H married Mrs. C on August 21, 1975. They had two children from that marriage. K born July 16, 1976 (13) and A born June 25, 1978 (11). Mr. H and Mrs. C were divorced on April 3, 1985 and both children presently reside with their natural mother, respondent, Mrs. C. H then married petitioner M on June 8, 1986. They also have two children: AY born April 8, 1987 (2) and IY born September 29, 1988 (1). Petitioner, M also has a child from a prior marriage, N born December 18, 1980 (9), who resides with her, Mr. H, AY and IY.
According to the terms of the April 3, 1985 judgment of divorce which incorporated a separate agreement entered into by C and H, C, was granted custody of the two children, K and A, while H was granted visitation rights. On more than one occasion, H violently assaulted Mrs. C resulting in numerous Orders of Protection from the Kings County Family Court. C thereafter brought an Order to Show Cause in October 1988, inter alia to suspend visitation by H. In this Order to Show Cause, the request was made for a temporary restraining order restraining H from undertaking visitation. This T.R.O. was stricken by Justice MS when the Order to Show Cause was signed. However, the Appellate Division reinstated this T.R.O.

The motion came to be heard before Judicial Hearing Officer DC. After a hearing J.H.O. DC rendered a decision on June 30, 1989, stating that there is no question that defendant, [Mr. H] did violently and viciously attack and severely bruise and injure the plaintiff Mrs. C in the presence of his children who were struck several times.

A New York Divorce Lawyer said the defendant has a history of violence committed on the plaintiff during the marriage and after the divorce resulting in orders of protection issued by the Family and Criminal Courts. The children in this proceeding were interviewed in camera by this court. They expressed fear and extreme anxiety. The court is satisfied from the results of this interview that visitation must be discontinued.

Despite the judicial determination that Mr. H be denied visitation with K and A, petitioner on behalf of her children now asks this court to grant them visitation with K and A.
The threshold question that must be answered before this motion can be considered is whether petitioner, on behalf of her children, has standing to ask for the requested relief, namely visitation with the children's half-siblings. If this inquiry is answered in the negative, the proceeding must be dismissed. The New York Legislature recently amended Sec. 71 of the Domestic Relations Law concerning a special proceeding or writ of habeas corpus to obtain visitation rights.

A Nassau County Family Lawyer said in respect to certain infant siblings, where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf of a child, whether by half or whole blood, may apply to the Supreme Court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court by order after due notice to the parent or any other person or party having the care, custody and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such brother or sister in respect to such child.
Upon a careful reading of the aforementioned statute, it becomes apparent that petitioner M, on behalf of her children, IY and AY does have standing to bring this proceeding. However, it is ordered that this proceeding be dismissed with regard to N, because she has no standing to proceed under Sec. 71 of the Domestic Relations Law due to the fact that she is not a half-sibling of respondents K and A.

Accordingly, it is ordered that a hearing is necessary to determine what is in the best interest of all the children regarding the issue of visitation. The court notes that this is not part of a matrimonial proceeding and thus should have been brought in the regular civil part. However, in light of the previous disposition of the case, the matter should be referred to Judicial Hearing Officer DC to "Hear and Determine" upon the consent of all parties, and if they do not consent then it shall be to "Hear and Report."

A Staten Island Lawyer says that a marriage can be estranged by a lot of reason, things and situations between spouses, when this happened; the common result is that custody of their children shall be given to one spouse and the other is given only visitation rights.
To help you in obtaining your visitation rights before the courts contact the Kings County Child Visitation Lawyers and Kings County Divorce Attorneys of the Stephen Bilkis & Associates.

Defendant Requests Clarification on Final Divorce Decree

April 21, 2016,

A New York Family Lawyer said in an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff's motion, "resettled and clarified" the judgment of divorce, by (1) amending and reducing defendant H's visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.

By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple's son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:

"ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff's attorney shall receive a doctor's prescription of the defendant's need and a further copy furnished to this Court".

A New York Divorce Lawyer said that by notice of motion, plaintiff moved "for an Order modifying the provisions of (the divorce) judgment providing for alimony payments, payment of expenses for the future, if any, for hospitals and institutions to which the defendant, may be confined, for psychiatric treatment, modifying the visitation by the defendant, with the infant issue of the former marriage, and for such other and further relief as to the Court may seem just and proper."

A Nassau County Family Lawyer said that during the ensuing conference, the Judge ruled on the issues raised by plaintiff's motion. Notwithstanding defendants' request for a hearing, none was held and no evidence was permitted to be given by the parties themselves. An order was entered incorporating the substance of the rulings made by the court in chambers. This order "resettled and clarified" the original judgment with regard to visitation. The amended judgment (1) reduced Mrs. H's weekend visitation from three weekends per month to two weekends per month, (2) added a provision that if the child were engaged in school-related athletic events on days when visitation was scheduled, specified days would be substituted, and (3) added a provision that on days when weekend visitation was scheduled, plaintiff was to bring the child from his home in New Jersey to a specified place in New York City, where Mrs. H would pick him up (Mrs. H was to return the child to New York City from her home in Garden City at the conclusion of visitation, there to be picked up by plaintiff).

A Staten Island Family Lawyer said in our view, Special Term erred in amending Mrs. H's visitation rights without first conducting a hearing. It is well-settled in this Department that the issue of visitation, like that of custody, may not be determined on the basis of recriminatory and controverted affidavits, but only after a full and plenary hearing. While we do not hold that the substance of the modifications was an abuse of the court's discretion, we are of the view that the parties themselves, as well as their 14-year-old son, should have been given the opportunity to present evidence on the issue of visitation. The testimony of the child would have been a particularly valuable aid to the court in determining his best interest, which is of course the paramount concern in a dispute over visitation.

We are further of the view that the amendment of the provision regarding Mrs. H's hospitalization expenses without a hearing was in certain respects improper. The judgment as "resettled and clarified" requires a full commitment hearing, at which plaintiff shall be present with his own certified psychiatrist, before plaintiff will be deemed responsible for the expenses of Mrs. H's commitment. The original judgment did not require such a hearing and, plaintiff's position to the contrary notwithstanding, there is no evidence that the parties in fact contemplated such a hearing. This change is unquestionably one of substance. Accordingly, all references to a hearing as a condition precedent to plaintiff's liability for the costs of Mrs. H's commitment must be deleted from the judgment as "resettled and clarified".

The new judgment also requires certification of mental illness by two certified psychiatrists, whereas the original judgment required such certification by only one certified psychiatrist. However, in view of the statement of defendants' counsel at oral argument that he had no objection to this modification, we see no reason to disturb it.

An ordinary person, not acquainted with the technicalities of the law may be easily deprived of his/her rights before the court in the absence of a Kings County Child Visitation Attorney.
If you need the assistance of a Kings County Family Lawyer or Kings County Divorce Attorney, call the Stephen Bilkis & Associates at the numbers provided in your screens.

Husband and Wife Embroiled in a Custody Battle

April 20, 2016,

A New York Family Lawyer said that, in an action for divorce, defendant husband appeals from so much of a judgment of the Supreme Court, dated December 23, 1981, as (1) granted custody of the parties’ child to plaintiff wife; (2) directed defendant to provide for plaintiff's psychotherapeutic assistance in the event that plaintiff cannot provide for it herself; (3) directed defendant to pay plaintiff's legal fees in the sum of $2,750; and (4) set forth a schedule of visitation. Plaintiff cross-appeals from so much of the same judgment as (1) ordered that if she interferes with defendant's visitation without proper cause, the issue of custody will be reviewed; (2) provided for defendant's visitation rights including overnight visitation; (3) provided that defendant's obligation to pay alimony and child support was dependent upon defendant being permitted visitation; and (4) granted only $2,750 in legal fees.

A New York Divorce Lawyer said that, judgment modified, on the law, by deleting the provision which directed defendant to provide for plaintiff's psychotherapeutic assistance in the event that plaintiff cannot provide for it herself. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

A Westchester County Family Lawyer said another Kings County Divorce Attorney explained that, in determining a question of child custody, a court must weigh various factors and policies in order to ascertain what is in the child’s best interests. On appellate review, the finding of the nisi prius court must be accorded the greatest respect and should not be set aside absent sufficient articulable reasons. Based upon our review of the record before us, we find no basis for setting aside the determination here.

A Suffolk County Family Lawyer said that, defendant husband must, of course, be accorded his visitation rights, which, because of the child’s tender years, we find to have been reasonably set by Special Term. Should plaintiff wife obstruct defendant's visitation privileges, defendant may seek appropriate judicial relief. In the interests of their child, we recommend that the parties seek counseling under judicial supervision as enunciated in the case of Matter of Montagna v. Krok,62 A.D.2d 1039, 404 N.Y.S.2d 41.

A Kings County Family Lawyer explained that the provision in the judgment of divorce directing that defendant provide for plaintiff's psychiatric therapy did not constitute an improper award of indirect alimony pursuant to Part A of section 236 of the Domestic Relations Law. Inasmuch as it was determined that the best interests of the child would be served if plaintiff sought psychiatric counseling, the provision for counseling and its payment was addressed solely to the issues of custody and visitation rather than alimony.

Nonetheless, a Kings County Order of Protection Attorney said that it was error to direct the defendant to pay all of plaintiff's psychiatric expenses to the extent that she cannot provide for it herself. Such a directive is in the nature of an open-ended obligation which exposes the defendant to unlimited liability and is thus improper under 22 N.Y.C.R.R. 699.9(f)(6). Some outer limit should be set on the maximum amount of such expenses the defendant may be required to pay, with leave to plaintiff to apply for additional awards if the circumstances warrant. Accordingly, the matter must be remitted for that purpose.

Finally, a Kings County Family Attorney said that the Court did not find error in directing defendant to pay for plaintiff's legal fees (Domestic Relations Law, § 237, subd. [a]). At the time of the divorce action plaintiff was unemployed and was required to borrow money from her mother to pay for a portion of the legal fees incurred (Domestic Relations Law, § 237.
In a marriage that does not work, the children are the most affected by the divorce of their parents. The children suffer emotional trauma, financial shortage and lack of sufficient security in cases of domestic violence.

To help you with your family dilemma, call the Kings County Family Attorneys of Stephen Bilkis & Associates.

Plaintiff Files Action for Nonsupport and Cruelty

April 19, 2016,

A New York Family Lawyer said this is an action by an infant wife for separation on the grounds of cruelty and nonsupport, in which the defendant husband asserted a counterclaim for separation on the ground of abandonment, a judgment was entered in the Supreme Court, on May 18, 1959, after trial, in favor of the defendant, dismissing the complaint, granting him a separation on his counterclaim, awarding custody of their child to plaintiff, with visitation rights to the defendant, and directing the defendant to pay plaintiff $35 per week for the child's support.
By order dated June 24, 1959 such judgment was resettled so as to define specifically defendant's visitation rights. By order dated July 10, 1959 such judgment was amended by adding three provisions: (1) enjoining plaintiff from taking the child out of the City of New York; (2) directing plaintiff to make the child available to the defendant during the periods prescribed for his visitation; and (3) suspending defendant's obligation to make payments for the support of the child in the event that, and as long as, plaintiff should frustrate defendant's visitation rights by keeping the child out of said City.

Plaintiff by her guardian ad litem now appeals from an order of the Supreme Court, which, inter alia: (1) denied her motion for a counsel fee and expenses to prosecute her appeal from said resettled amended judgment and for an award of $35 a week for the child's support during the pendency of such appeal; (2) granted defendant's motion to award custody of the child to him, to hold plaintiff in contempt for violating the judgment with respect to defendant's visitation rights, and to stay plaintiff from all proceedings (excepting appeals) as long as she continues to violate said judgment and the order appealed from; and (3) further modified the resettled amended judgment by awarding custody of the child to defendant, by prescribing plaintiff's visitation rights and by enjoining plaintiff from taking the child out of said City.

A Westchester County Family Lawyer appealed from modified on the law and the facts: (a) by striking out all its provisions which transfer the custody of the child from plaintiff to defendant, which accord visitation rights to plaintiff, which modify the judgment in these respects, and which grant defendant's motion with respect to custody; and (b) by substituting therefor a provision denying defendant's motion with respect to custody of the child. As so modified, said order is affirmed, without costs.

Although it does not appear that a certified copy of said judgment was ever served upon plaintiff, nevertheless it does appear that the motion, which resulted in the order now appealed from, was based upon such judgment and the orders resettling and amending it. Under such circumstances the plaintiff, having failed to comply with the resettled amended judgment, was guilty of contempt of court, and the Special Term had the jurisdiction and the discretion so to adjudicate.

A Suffolk County Family Lawyer said that in our opinion, however, this record does not justify the changes in the custody and visitation provisions of the resettled amended judgment with respect to the infant child of the parties. In all cases involving the custody of infants, the welfare of the infant is the paramount consideration. As punishment for her contempt, custody of the infant should not be taken from the mother and awarded to the father. Such transfer of custody should be made only upon a clear showing that it will best serve the interests of the infant.

Here, custody was awarded to the plaintiff-mother by the Trial Justice after hearing all the evidence. There is no proof in this record showing such a change of circumstances as will support a finding that a transfer of the child 's custody is now necessary for the best interests of the child. There is even a lack of proof that the defendant-father possesses adequate financial stability to maintain the child if he is delivered into the father's custody.
Of course, an application to modify the custodial provisions of the judgment may always be renewed, if defendant be so advised, on papers disclosing fully the facts which entitle him, instead of the plaintiff, to the child 's custody.

In deciding to whom the custody of the child properly belongs, the assistance of a Kings County Family Attorneys will be needed. Without the proper representation in court you may lose custody of your precious child.

To contact a Kings County Family Lawyer, call the Stephen Bilkis & Asssociates and we will provide our most experienced family lawyer to help you in your family related legal issues.

Three Children Subjects of Neglect Proceedings

April 18, 2016,

A New York Family Lawyer said the appellant (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the New York City Administration for Children's Services (hereinafter ACS) filed petitions in the Family Court, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their non-respondent father and his mother (the children's paternal grandmother), with whom the father lived.

On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother's request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father's care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1½ years, during which time the children remained in their father's care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.

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

A Staten Island Family Lawyer said in February 5, 2009, after the subject children were found wandering the streets in the early morning hours of February 4, 2009, ACS filed petitions pursuant to Family Court Act § 1024 to remove the children from the mother's custody and place them in the custody of their father and paternal grandmother. The petitions alleged that on February 4, 2009, at 3:30 A.M., ACS removed the children from the mother's custody on an emergency basis because the parents were unavailable, and that the circumstances of removal were such that a risk existed as to the children's life, health, or safety. Finally, ACS asserted that it had insufficient time to obtain a court order pursuant to Family Court Act § 1022, since the removal occurred outside of the court's business hours.

A t a hearing held on February 5, 2009, and upon the request of ACS, the Family Court paroled the children to the non-respondent father and paternal grandmother, who lived together. The Family Court also entered a temporary order of protection directing the mother to stay away from the children, except for ACS-supervised visits. The Family Court explained to the father, who asked for custody of the children during this hearing, that the neglect proceedings would be conducted before any custody proceedings.

A Nassau County Family Lawyer said the Family Court then adjourned the matter for nearly four months, until June 2, 2009.

On that date, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. The attorney for the children stated that the matter might be best addressed by a hearing under Family Court Act § 1061 to modify or vacate the order of protection, or under the father's pending custody petition. Counsel for ACS did not address the merits of the mother's request because she had not received notice of it. On June 8, 2009, the Family Court held a conference on the petitioner's request for a Family Court Act § 1028 hearing, at which time the mother's attorney indicated that the mother was "willing to reserve" her request. The parties then went on to address other visitation issues, and the matter was continued until July 2, 2009.

On July 2, 2009, the mother reported that her visits with the children were uneventful and that she accordingly wanted the children paroled back to her. However, since neither ACS nor the attorney for the children were prepared to consent to the mother's request, the mother orally resubmitted her request for a hearing pursuant to Family Court Act § 1028. The matter was then further adjourned until July 27, 2009.

On July 27, 2009, the Family Court issued an order denying the mother's request for a Family Court Act § 1028 hearing because it found that "when a child is moved from the [petitioner's] home to the non respondent father's home, that is not a removal and it does not generate a basis for a 1028 hearing." The Family Court reasoned that "[FCA] 1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent." As an alternative to address the order of protection, the Family Court granted the application of the attorney for the children for a Family Court Act § 1061 hearing. The Family Court scheduled that hearing for September 1, 2009, although the hearing was ultimately adjourned until June 28, 2010.

Indeed here, the Family Court Act § 1061 hearing was ultimately adjourned to June 28, 2010, more than a year after the mother's original request for a hearing. On the mother's appeal from the denial of her request for a Family Court Act § 1028 hearing, we reverse.
While the determination of this appeal was pending, this Court learned that, in an order dated October 20, 2010, the Family Court directed the return of the children to the mother. Accordingly, the mother's appeal challenging the denial of her application for a Family Court Act § 1028 hearing is moot, since she has now received the relief that she would have received had the Family Court Act § 1028 hearing been conducted. We note, however, that the mother did not obtain such relief until more than 16 months after she first requested a Family Court Act § 1028 hearing, far longer than the 3 court days within which Family Court Act § 1028 hearings are mandated to occur. Under the circumstances, we find that the issue raised on this appeal involves an exception to the mootness doctrine.

Family Court Act § 1028 mandates an immediate hearing and a determination on placement within three court days. Where, as here, a parent is denied his or her request for a hearing pursuant to Family Court Act § 1028, appellate review of such a denial cannot be completed before three court days have elapsed. As such, this issue is capable of repetition and likely to evade review. Moreover, there is a high likelihood that the issue presented on this appeal is capable of repetition. Indeed, the issue of whether a Family Court Act § 1028 hearing is necessary where children are paroled to relatives has arisen numerous times at the trial level, resulting in a split of authority as to its resolution.

Turning now to the merits, we conclude that the Family Court erred in denying the mother's application for a hearing under Family Court Act § 1028.

The disposition of the mother's application here turned on the meaning of the word "removal," as used in the statute. The Family Court found that there was no removal within the meaning of Family Court Act § 1028 because "when a child is moved from the [petitioner's] home to the non respondent father's home, that is not a removal and it does not generate a basis for a 1028 hearing." The Family Court reasoned, "1028 hearings protect the primacy of parental rights as against the state, not as against the parent vs. parent." We disagree.

In assessing the Family Court's interpretation of the statute, we begin with the language of the statute itself. On its face, Family Court Act § 1028 does not limit a hearing only to parents whose children have been placed in the custody of a governmental agency. Indeed, there is no qualification to its application whatsoever. It plainly and simply states that, upon the application of a parent of a child who has been temporarily removed, the court shall hold a hearing to determine whether the child should be returned, and this must be done within three court days without adjournment.

These rules of strict construction, however, cannot be applied without regard to the statute as a whole, as " its various sections must be considered together and with reference to each other'".
As we move through part 2 of article 10, the result is the same. The Legislature uses the word "remove" in a broad, unqualified sense. A recitation of each instance where the word is used is not needed. The title of part 2 itself—"Temporary Removal and Preliminary Orders"—indicates that part 2, as a whole, is concerned with the removal of a child from his or her home due to dangerous conditions. It logically follows that to escape such conditions; the child must necessarily be removed from that home immediately. This is exactly what Family Court Act § 1024 in particular, and the rest of part 2 of article 10 generally, contemplates.

We, therefore, hold that the Family Court's finding of a legal distinction between a child's removal from the home and placement in the custody of another parent, on one hand, and placement in the custody of a governmental agency, on the other hand, is illusory. In either case, it is the State acting within its parens patriae power effectuating that transfer and removal. Numerous Appellate Division decisions make it clear that part 2 of article 10, of which Family Court Act § 1028 is part, is concerned with the State's power to disrupt a parent's physical custody of a child. Accordingly, we find that the applicability of a Family Court Act § 1028 hearing is not dependent on whether the child removed is placed with another parent or whether the child is placed in foster care. In sum, the trigger is that the State has acted to effectuate the removal of the child from the home and placed him or her in the custody of another.

For the foregoing reasons, the Family Court should have granted the mother's request for a hearing under Family Court Act § 1028 based upon the removal of the children from her home and their placement into the custody of the father. Accordingly, the order is reversed insofar as appealed from, on the law, and the petitioner's application for a hearing pursuant to Family Court Act § 1028 is granted.

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Court Determines Custody of Foster Children

April 17, 2016,

A New York Family Lawyer said the question presented by the instant case is whether the evidence adduced on NYCCS's direct case at the combined Family Court Act § 1027 hearing, for the child DD, and Family Court Act § 1028 hearing, for the children JJ and BB, establishes imminent risk sufficient to warrant the children remaining in non-kinship foster care during the pendency of these proceedings. In the Court's view, that question must be answered in the negative since any possible risk to the children from the father can be mitigated by the issuance of a temporary order of protection and an order that the mother re-enter a domestic violence shelter and resume domestic violence counseling, as well as her participation in other recommended services.

This proceeding was initially commenced on June 3, 2010, when NYCCS filed petitions against respondent mother and respondent father pursuant to Article 10 of the Family Court Act. The petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children and both parents failed to ensure that the school-aged children attended school regularly.

A New York Custody Lawyer said that upon the filing of the petition, the court granted NYCCS's request for a removal of the children and directed that they be restrictively placed with the maternal grandmother. In addition, the court entered a temporary order of protection against the father. That order directed the father to refrain from committing any family offenses against the children or the maternal grandmother and stay away from them except for visitation supervised by the grandmother or the agency.

A Long Island Family Lawyer in August 13, 2010, the mother requested a FCA § 1028 hearing for the child, DD. She did not request the immediate return of JJ and BB because they were staying with relatives where they were safe, happy and attending school. The hearing, conducted by Hon. W, concluded on August 20, 2010, when the court granted the mother's application and directed that DD be returned to her. Judge W issued a temporary order of protection against the father on behalf of the mother and DD. That order directed the father to refrain from committing any family offenses against the child or the mother and to stay away from them, except for visitation supervised by the agency. Judge W ordered that the mother enforce the terms of the temporary order of protection, comply with NYCCS referrals for a confidential domestic violence family shelter, comply with ongoing domestic violence counseling and cooperate with NYCCS supervision, including announced and unannounced visits.

A Queens Family Lawyer said that shortly thereafter, the mother and DD entered a domestic violence shelter through PATH. They remained at the shelter until September 8, 2010, when the mother learned that the father had followed her there from the home of the maternal grandmother and that he knew where she was staying. Consequently, the mother and DD were forced to leave the shelter.

On or around September 12, 2010, they returned to PATH to await placement in a different domestic violence shelter. Shortly thereafter, they left PATH and went to stay with a maternal aunt. Several days later, the mother was discharged from PATH for failing to sign-in for a period of 48 hours. During the week that followed, the mother did not contact NYCCS or attend therapy.

Although the mother and DD had been repeatedly displaced and forced to relocate as a result of the father's actions and although he had allegedly violated the temporary order of protection, NYCCS took no action against him. Instead, on September 14, 2010, the agency requested, and the court granted, a warrant for the mother to produce DD in court.

On September 20, 2010, after learning of the warrant, the mother voluntarily appeared in court and the warrant was vacated. Later that day, after the court appearance, NYCCS conducted a child safety conference. At the conclusion of the conference, the agency removed DD from his mother's care for the second time. Although the parties had been in court all day, and were again in court all of the following day, NYCCS removed DD without a court. He was then placed in non-kinship foster care.

On September 21, 2010, NYCCS moved by order to show cause for the remand of DD. By that point, caseworkers had already removed JJ and BB from the family home in Pennsylvania and placed them in non-kinship foster care in New York City. Accordingly, the mother requested a combined FCA § 1027 hearing for DD and a FCA § 1028 hearing for JJ and BB.
Legal Analysis

Whether analyzing a removal application under Family Court Act § 1027 or an application for the return of the children under Family Court Act § 1028, the court must determine whether removal is necessary to avoid imminent risk to the children's lives or health. In considering this question, the court must determine whether there is a risk of "serious harm or potential harm to the children." There must be evidence that the harm or danger is "imminent," that is, "near or impending, not merely possible".

In the case at bar, having viewed the evidence in the light most favorable to NYCCS, the Court finds that continued removal is unnecessary to avoid imminent risk to the children's lives or health. In addition, the Court finds that any risk presented by the father's actions, can be mitigated by continuing the temporary order of protection and by providing services to the family to ensure their safety. Further, the Court finds that NYCCS has violated a number of the basic principles outlined in Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840.

Speculation that a Parent may Violate a Court Order does not Establish Imminent Risk
The emergency removal of the child DD was based on assumptions, guesswork and unsupported predictions of future behavior. These cannot substitute for proof and are insufficient to establish a risk of "serious harm or potential harm to the child." The mere possibility that, at some future point, the mother could resume her relationship with the father, that the father could commit acts of domestic violence against her, that these acts could take place in the presence of the child and that the child could suffer emotional harm as a result, is not proof of danger that is "imminent," "near or impending." As the Court of Appeals and the Second Circuit have held a "mere possibility" of harm is insufficient. If it were, courts would be required to uphold virtually every removal since there is always a possibility that at some future point a party may violate a court order.

Assertions that a Parent has Failed to Comply with Certain Aspects of a Prior Court Order does not Establish Imminent Risk Absent Evidence of Impairment

In the instant case, NYCCS asserts that the mother violated Judge W's order by leaving PATH while awaiting placement at a different domestic violence shelter and temporarily failing to keep the agency apprised of her whereabouts. Assuming, without deciding, that these actions did, in fact, constitute a violation of Judge W 's order, they did not cause harm to the children or place them at imminent risk of harm. In fact, the evidence establishes that the mother complied with the order of protection, that she did everything possible to protect the children from exposure to further violence and that the children were being well-cared for by the mother or other family members.

An Allegedly Abusive Parent's Violation of an Order of Protection does not Establish Imminent Risk by a Non-Abusive Parent

The father's alleged violation of the order of protection issued by Judge W at the conclusion of the first FCA § 1028 hearing does not constitute a change in the mother's circumstances or establish that the children would be at imminent risk in her care.

The Possibility of Future Emotional Harm was Insufficient to Justify an Emergency Removal in this Case

In the instant case, NYCCS failed to satisfy the statutory requirements for removing the child, DD, without parental consent or a court order. Family Court Act § 1024 permits an emergency removal only where there is reasonable cause to believe that a child is in such urgent circumstances that continuing in the care of the parent presents an imminent danger and there is not enough time to apply for an order. The danger must be so immediate, so urgent, that the child 's life or safety will be at risk before an ex parte order can be obtained. There must be "persuasive evidence of serious ongoing abuse" and "reason to fear imminent recurrence." This stringent standard, rarely met in cases involving emotional injury, is met even less frequently in cases involving the risk of emotional injury from witnessing domestic violence.

In this case, NYCCS did not even allege-let alone introduce-persuasive evidence of serious ongoing abuse and a reason to fear imminent recurrence. Nor, did the petitioner introduce evidence that the child was in danger that was so immediate and so urgent that his life or safety would have been at imminent risk before an order could be obtained. In fact, the evidence is clearly to the contrary.

On September 20, 2010, when NYCCS effectuated the emergency removal, DD was in his mother's care staying at the home of his maternal aunt. The evidence establishes that he was well-cared for. There is no indication that his father knew where he and his mother were staying or that he was otherwise in any immediate danger. There was more than sufficient time, entirely consistent with the child's safety, to seek a court order. In fact, NYCCS could have requested a court order at any time on September 20, 2010 or September 21, 2010, when the parties and their attorneys spent almost two entire days in court.

Since the risk to the child was not imminent and there was more than ample time and opportunity to seek a court order, there was no justification for the use of emergency, extra-judicial procedures. The decision to nevertheless conduct such a removal, in the aftermath of Nicholson, from a non-abusive parent, herself a victim of domestic violence, repeatedly rendered homeless by the actions of the alleged perpetrator, raises disturbing questions. This is particularly true here since a FCA § 1028 hearing had already been conducted and a judicial determination already made that any risk to the child could be mitigated or ameliorated by reasonable efforts and a temporary order of protection. Nothing happened during the weeks following that determination to support this Court reaching a different result-let alone NYCCS doing so without court authorization. By proceeding in this manner under these circumstances, NYCCS failed to comply with the standards set forth by the Court of Appeals and the Second Circuit.

Accordingly, with the following conditions, the children should be immediately released to the mother under NYCCS supervision.

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