Mother Appeals Child Support Order

October 30, 2014,

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County, which denied her objections to an order of the same court, granting the father's petition to suspend his child support obligation and to adjust his child support arrears, and to an order of the same court, denying, as academic, her petition to find the father in violation of his child support obligation and for an award of child support arrears.

A Kings County Family lawyer said that in August 1993 the parties entered into an agreement which provided, inter alia, that the father would pay the mother specified child support until their two children were emancipated, as that term was defined therein. Pursuant to the agreement, emancipation was triggered, in relevant part, upon the child's residence away from the mother's residence, "not including attendance at college." The parties were divorced, and the agreement was incorporated but not merged into the judgment of divorce.

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

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

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

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

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

When spouses separated by reason of their irreconcilable differences, their children should not be left behind. Here in Stephen Bilkis and Associates, our Kings County Child Support attorneys will ensure that the rights of the separating parents will be protected by requesting a support from the parents. We also have Kings County Family lawyers for your needs on other family-related matters. Call us now.

court Discusses Custody of Allegedly Abused Child

October 29, 2014,

New York Family Lawyer said inn related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County, which, upon a decision of the same court, made after a fact-finding hearing, dismissed the petitions.

Article 10 of the Family Court Act defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child's care ‘commits, or allows to be committed, a sex offense against such child”, quoting Family Ct. Act § 1012[e][iii]. A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker.

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

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

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

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

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

A Kings County Family attorney said that the subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2¼ years and 1¼ years of their lives, respectively. After the Administration for Children's Services filed a petition in a separate matter alleging neglect against the children's mother, the children were placed with the petitioner in March 2002. However, thereafter, the children, who were then 2¼ years old and 1¼ years old, respectively, were removed from the petitioner's custody due to the condition of the petitioner's home.

In December 2002, the children were placed with their paternal grandmother, hereinafter the respondent, who was subsequently, designated the children's foster parent and adoptive resource, and they have resided with her since that time.

The petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother's parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother's parental rights suggests that the petitioner only accompanied the mother to nine of the mother's scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.

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

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

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

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

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

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

Father Imprisioned, Court Determines Custody as a Result

October 28, 2014,

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Kings County, which denied his objection to so much of an order of the same court, as, after a hearing, denied his petition for a downward modification of his child support obligation, as set forth in a prior order of child support, and granted that branch of the mother's petition which was to adjudicate him in willful violation of the prior order of child support, and (2) an order of the same court, which committed him to the custody of the New York City Department of Corrections for a term of imprisonment of eight consecutive weekends with the opportunity to purge his contempt by payment of the sum of $5,000 toward his arrears.

"A party seeking downward modification of a support obligation has the burden of showing a change in circumstances and that he used his best efforts to obtain employment commensurate with his qualifications and experience". "In determining a change of circumstances, a court need not rely upon the party's account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential". However, "[w]hile a support magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion".

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

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

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

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

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

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

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

court Decides Grandparent Custody Case

October 27, 2014,

A New York Family Lawyer said the subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2 1/4 years and 1 1/4 years of their lives, respectively. After the Administration for Children's Services filed a petition in a separate matter alleging neglect against the children's mother, the children were placed with the petitioner on March 1, 2002. However, on March 6 or 8, 2002, the children, who were then 2 1/4 years old and 1 1/4 years old, respectively, were removed from the petitioner's custody due to the condition of the petitioner's home. On December 2, 2002, the children were placed with their paternal grandmother, the respondent who was subsequently designated the children's foster parent and adoptive resource, and they have resided with her since that time.

A New York Divorce Lawyer said the petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother's parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother's parental rights suggests that the petitioner only accompanied the mother to nine of the mother's scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.

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

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

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

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

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

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

Court Listens to Two Child Neglect Proceedings

October 25, 2014,

A New York Family Lawyer said that in two related child neglect proceedings pursuant to Family Court Act, the appellant father appeals from so much of an order of the Family Court as denied his motion to vacate a fact-finding order of the same court, made upon his default in appearing at a fact-finding hearing, finding that he had neglected the subject children, and, in effect, to vacate an order of disposition of the same court, which, upon the fact-finding order, directed the release of the subject children to the mother's custody and directed him to complete, inter alia, domestic violence counseling.

A New York Divorce Lawyer said the order dated July 7, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant's motion to vacate the fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-finding order and order of disposition are vacated, and the matter is remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it is further, ordered that, upon remittal, the Family Court shall forthwith make an order with regard to the custody of the subject children pending the new hearing or hearings and determination.

A Queens Family Lawyer said these proceedings were commenced pursuant to Family Court Act upon the filing of two petitions, in which it was alleged that the appellant father was a person legally responsible for the care of two female children, and that these children were neglected by him. The petitions were based on a single incident, in which it was alleged that the appellant, among other things, grabbed one of the subject children on the side of her neck.

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

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

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

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

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

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

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

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

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

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

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

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

Court Decides Child Custody in Light of Mentally Ill Respondent

October 24, 2014,

A New York Family Lawyer said that on 12 October 2001, a petition was filed against the respondent mother.

As alleged in the petition, the respondent mother neglected her seven-year-old child, T, by failing to provide the child with appropriate medical attention to treat her ADHD, by refusing to accept board of education referrals for a special education program for T, and by failing to provide T with adequate shelter because of her failure to pay rent, electricity and gas bills, and by using marijuana and not enrolling in a drug treatment program; and, the respondent mother has been diagnosed as suffering from mental illness, "specifically as paranoid and delusional, and with a possible personality disorder."

A New York Divorce Lawyer said on the basis of the mental illness allegation, the petitioner seeks for an order pursuant to Family Court Act §§ 251, 1038 (d) to have the respondent evaluated to determine whether she in fact suffers from an untreated mental illness which impairs her ability to care for the child.

The factual basis:

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

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

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

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

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

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

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

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

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

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

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

The legal analysis:

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

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

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

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

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

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

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

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

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

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

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

Father Moves for Custody in Light of Mentally Ill Mother

October 23, 2014,

A New York Family Lawyer said this is an appeal from an order of the Supreme Court entered 28 April 2009 in Ulster County, which, among other things, awarded plaintiff custody of the parties' child.
The father, plaintiff and the mother, defendant were married in 2004 and are the parents of a daughter born in 2005. Within weeks of her birth, the couple began experiencing marital difficulties, stemming from the father's growing concern about the mother's mental health.

In January 2006, when the child was just five weeks old, the mother vacated the couple's marital residence in Ulster County and traveled to Nassau County with the child. The father immediately initiated a proceeding in Ulster County Family Court requesting joint custody of the child and an order prohibiting the mother from removing the child from the child. Family Court issued an interim order restricting the mother from leaving the state with the child and set a prompt return date.

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

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

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

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

The mother now appeals.

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

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

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

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

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

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

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

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

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

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

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

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

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

Husband Claims Aandonment and Adultery in Divorce Proceeding

October 13, 2014,

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties' marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife's mother in a residence owned by the wife's mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties' children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband's 2009 driver's license states his address is the wife's Dobbs Ferry residence.

A New York Family Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

The husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

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

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

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

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

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

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

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

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

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

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

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

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

Court Looks at Jurisdiction Issue in Divorce Proceeding

October 12, 2014,

A New York Family Lawyer said the parties were spouses who have two children of the marriage. From the date of the parties' marriage until August 2002, the parties and their two children resided in Eastchester, in Westchester County with the wife's mother in a residence owned by the wife's mother. According to the wife, the husband abandoned her in that year. Thereafter the husband resided for some period of time in Nassau County with a woman with whom he has an out-of-wedlock child. The wife and the parties' children moved to Dobbs Ferry New York. The husband resided with the wife and children in the Dobbs Ferry residence for a two and a half week period in April and May 2008. The husband's 2009 driver's license states his address is the wife's Dobbs Ferry residence.

A New York Divorce Lawyer said that the husband commenced a prior action for divorce in Nassau County. Pursuant to an order, venue of said action was transferred to Westchester County. Thereafter, the husband also commenced another action for divorce against the wife in Westchester County. Both actions were dismissed. The wife has served an answer in the above captioned action seeking dismissal of the within action. She has not interposed a counterclaim for divorce.

A Nassau County Family Lawyer said the husband became a month-to-month tenant of an apartment in a private residence in Massapequa. His rent is $900.00 a month. Thereafter, he commenced the within action for divorce in Nassau County. His complaint asserts three causes of action, to wit: actual abandonment; social abandonment; and adultery. All the causes of action allegedly occurred in Dobbs Ferry in Westchester County.

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

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

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

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

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

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

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

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

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

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

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

Father Seeks to Modify Restraining Order Against Him

October 11, 2014,

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties' three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties' two daughters. The parties' teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a "request for order" in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.

A Queens Family Lawyer said after a hearing, the California court issued a five-year order of protection which, inter alia, directed the father to stay away from the mother and the three children. The California court issued a separate order granting custody of all three children to the mother, with no child visitation for the father. These orders included the parties' teenage son, although he was not in California at the time, and continued to reside with the father in New York.

A Long Island Family Lawyer said the California court and the Family Court communicated to determine jurisdictional issues pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter the UCCJEA). The courts agreed that New York was the "home state", and that the California court, in issuing the orders of protection and custody, had acted solely in the exercise of its temporary emergency jurisdiction under the UCCJEA.

In the New York custody proceedings, the mother caused the California order of protection to be registered in the Family Court, which issued a New York order of protection with the same terms and conditions. By order, the Family Court granted the father temporary legal and physical custody of the parties' son, with child visitation for the mother as agreed upon by the parties. At a court conference, the parties wanted to enter into a so-ordered stipulation providing for, inter alia, the father's child visitation with one of the parties' daughters, but the court declined to sign it, citing a potential conflict with the California order of protection.

The father thereafter filed the instant petition, in effect, for modification of the California order of protection. Without addressing the merits, the Family Court dismissed the father's petition, without prejudice, for lack of jurisdiction. The father's separate custody proceeding, which, as noted, was initiated in the Family Court prior to the mother's initial filing with the California court, is pending. According to the parties, the Family Court has held the record in the custody proceeding open, pending the determination of this appeal.

The Court reversed, reinstated the father's petition, in effect, for modification of the California order of protection, and remit the matter to the Family Court for a determination of the father's petition on the merits.

Under the circumstances presented, as the California court agreed, New York is the "home state" of the children with jurisdiction to make a "child custody determination," including a custody and child visitation order. Obviously, that jurisdiction carries with it the power to modify the California order of protection, as appropriate, in order to effectuate the child custody determination of the Family Court.

Indeed, California's version of the UCCJEA implicitly recognizes as much. The provision governing its authority to exercise temporary emergency jurisdiction states, in pertinent part, that if a child custody proceeding has been commenced in the home state, which is the case here, then "any order" issued by the State of California "must specify in [its] order a period that the court considers adequate to allow the person seeking an order to obtain an order from" the home state. The statute further provides that the California order "remains in effect until an order is obtained from the [home state] within the period specified or the period expires".

Furthermore, in aid of the latter provision, the California statute further states that upon being informed that a child custody proceeding has been commenced in the home state, as the California court was in this case by the mother's papers, the California court exercising temporary emergency jurisdiction must communicate with the home state. The California court failed to do so in this case, prior to issuance of the order of protection. Thus, the opportunity the statute contemplates to set a realistic duration on the emergency order—and there is no indication that the five-year period of the California order of protection was set with regard to that provision—was lost here.

We further note that the temporary emergency jurisdiction of the California court extended only to children who were then in California and in need of protection. It is undisputed that the parties' son left California, and was in New York, the date of the California orders of protection and custody. The California orders were, therefore, invalid as to the parties' son.

Under the circumstances, including the California court's agreement, subsequent to the order of protection, that California was exercising only temporary emergency jurisdiction, and that New York is the home state of the children with the authority, inter alia, to make a child custody determination, the Family Court had the jurisdiction to entertain the father's petition, in effect, for modification of the California order of protection.

Family matters should be entrusted to smart and diligent lawyers like our Nassau County Family lawyers here in Stephen Bilkis and Associates. For a reliable and helpful advice regarding visitation matters, don’t hesitate to contact our Nassau County Child Visitation attorneys now to receive a quality advice.

Father Appeals Order Granting Sole Custody to Mother

October 10, 2014,

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County, which, without a hearing, inter alia, granted sole custody of the subject child to the mother, with child visitation to the father.

A New York Family Lawyer said that an award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed. Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing.

Here, a New York Divorce Lawyer said in light of the parties' conflicting allegations, the Family Court erred in awarding sole custody of the subject child to the mother without the benefit of an evidentiary hearing. Nor did the court conduct an examination of the parties, interview the child, or solicit the opinion of the attorney for the child. Under such circumstances, it cannot be concluded that the court possessed sufficient information to render an informed determination consistent with the child's best interests. Accordingly, the court remits the matter to the Family Court, Nassau County, for a hearing and, thereafter, a new determination on the custody petition.

Thus, the Court Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for an evidentiary hearing on the issue of custody and a new determination thereafter; and further Ordered that pending the hearing and new determination, the subject child shall remain in the sole custody of the mother, and the provisions of the order, regarding child visitation shall remain in effect.

In another case, a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County, as, after a hearing, denied her petition to modify an order of the same court, awarding the father residential custody of the subject child upon the parties' consent, so as to award her residential custody of the child.

To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child. The best interests of the child are determined by a review of the totality of the circumstances.

Although the determination of the hearing court which saw and heard the witnesses is entitled to great deference, its determination will not be upheld where it lacks a sound and substantial basis in the record.

Here, the Family Court's determination that the evidence did not demonstrate a sufficient change in circumstances is not supported by a sound and substantial basis in the record. Moreover, modification of the existing custody arrangement so as to award the mother residential custody is in the child's best interests.

Accordingly, a Bronx Family Lawyer said the Court reversed the Order insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the mother's petition to modify the order, so as to award her residential custody of the subject child is granted, and the matter is remitted to the Family Court, Nassau County, for further proceedings to establish an appropriate child visitation schedule for the father; and it is further Ordered that pending further order of the Family Court, Nassau County, the father shall have child visitation on weekends from Friday until Sunday, or other times as the parties may agree, with the mother transporting the child to the father's residence, and the father returning the child to the mother's residence, or as the parties may otherwise agree.

A Brooklyn Family Lawyer said the Court awards visitation and custodial rights to a parent for the benefit of its children. In every child related cases, the primordial consideration is what is beneficial to the subject child. Here in Stephen Bilkis and Associates, our Nassau County Child Visitation lawyers will render its service to the parent who seeks to visit his child by filing a petition in court to that effect. For family related matters, we have our Nassau County Family attorneys, who will give you an advice to all family related issues you are concerned with. Call us now and receive a dependable advice from our diligent lawyers.

Grandmother Seeks Visitation Rights

September 29, 2014,

A New York Family Lawyer said a grandmother seeks to obtain visitation privileges with her grandson. The child was born and resided with the complainant, his maternal grandmother, for five years. The child's father is in prison, and his mother, who was addicted to drugs, already died.

Previously, a dispute arose between the complainant, as maternal grandmother, and the paternal grandmother, concerning custody of the child. However, the Supreme Court gave the child custody to his paternal aunt and granted both the maternal and paternal grandparents for limited visitation rights.

The paternal aunt subsequently initiated an adoption proceeding in the family court. As a result, they became the adoptive parents of the child.

A New York Divorce Lawyer said the questions presented by the complainant are whether or not the order of adoption outdated the prior order of the Supreme Court setting forth visitation rights to the maternal grandmother, and whether the law entitles the complainant as maternal grandmother to rights of visitation.

A Suffolk County Family Lawyer said sources revealed that adoption by its nature is a proceeding which seeks to establish permanent, as distinguished from temporary, relationships. The many safeguards surrounding adoption proceedings are evidence of the permanency which the proceedings envision. Moreover, it would appear that the court had complete jurisdiction of the adoption proceeding and that it obtained the consents of all those persons as a condition precedent to adoption.

The court then stated that it may well be that the paternal aunt and her husband, may feel that it might be in the best interests of the child to maintain some contact with his maternal grandmother through periods of visitation. As adoptive parents, however, it is exclusively within there own good judgment. Consequently, the appeal has been dismissed.

In a related proceedings, a father appeals from an order, without a hearing, that denied his request to modify a prior order of visitation, and granted the application of the attorney of the child to modify the prior order so as to limit the father's parenting time to brief visits with the child at public places.

A Westchester County Family Lawyer said the father filed a petition to modify a prior order of visitation. In opposing the father's request, the attorney of the child, based on the father's submissions, requested that the court limit the father's parenting time to periods of short duration and in a specific location.

Consequently, in an order, the family court, without a hearing, denied the father's petition and granted the application of the attorney for the child to modify the prior order of visitation, so as to limit the father's parenting time to brief visits at public places. The father then filed an appeal.
Contrary to the father's contention, the court stated that they had the authority to grant the relief requested by the attorney of the child in her opposition to his petition.

However, under the circumstances of the case, the court erred by denying the father's petition and granting the application of the attorney for the child without conducting a full evidentiary hearing. Based on records, generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child.

As a result, the court ordered that the order, is reversed, on the law and the facts, without costs or disbursements, and the matter is remitted to the court, for a hearing on the father's request and the application of the attorney, including an in camera interview with the child, before a different judge, and thereafter a new determination of the petition and the application.

It is also ordered that pending the hearing and determination of the petition and the application, the visitation order as set forth shall remain in effect.

If misfortune happens to the parent, grandparents are the first person who wants to take care of their grandchildren because of the emotional attachment they have. They are also the first who wants to obtain the custody of the children if need be. If you are in the same situation, you can seek assistance from the Nassau County Family Lawyer or Nassau County Child Custody Lawyers. However, if you want to maintain your visitation privileges, you can hire the Nassau County Visitation Attorney at Stephen Bilkis and Associates to provide you with the legal assistance you need.