Posted On: February 19, 2013 by Stephen Bilkis

Respondent Claims Due Process Rights Were Violated

In this custody proceeding, a New York Family Lawyer said that, the Family Court, Bronx, awarded petitioner mother sole physical and legal custody of the parties' child dismissed respondent father's petitions based on violations of temporary orders of visitation, denied respondent's second motion to dismiss the child custody petition, and issued a five-year order of protection forbidding respondent from exercising any corporal punishment against the child. A Bronx Order of Protection Lawyer said that defendant father appealed the decision.

The issue in this case is whether the Family Court erred in awarding the sole physical and legal custody of the child to the petitioner mother.

A New York Custody Lawyer said the Court said that, with regard to deprivation of respondent's visitation rights, he had ample opportunity to present evidence of petitioner's violations during the custody trial, but failed to do so. Moreover, the record indicates that petitioner supported the child’s regular and frequent visits with her father. Denial of respondent's request for a subpoena was a proper exercise of discretion. There is no indication in the record that petitioner was using illegal drugs or had used them in the recent past, or that she had any medical or psychological condition that might negatively impact on her care for the child.

A Queens Family Lawyer said given respondent's testimony that he believed in physically disciplining the child and had once used a belt to do so, the court properly issued a five-year order of protection directing him to refrain from such acts. Contrary to respondent's contention, an order of protection under Family Court Act § 656 "need not be justified by aggravating circumstances in order to exceed a year in duration". Because the order of protection was issued only on behalf of the child, petitioner was not required to allege an assault, nor was the court required to issue a summons pursuant to §§ 821-a(2)(a) or 825, or a warrant, since those provisions of the Family Court Act apply only to family offense proceedings, not custody proceedings.

A Queens Custody Lawyer said with respect to respondent's motion for poor person relief, the court had reason to doubt his claim of indigence, given his failure to submit financial documentation until almost 2 1/2 years after he first requested assigned counsel, and even then in an unsigned and undated financial affidavit, especially in light of the fact that he had previously retained several attorneys during the custody. Contrary to respondent's contention, the court's authorization to pay his portion of the forensic evaluation at government expense was not tantamount to a finding that he was indigent for all purposes, since that relief was granted not because of his poverty, but because of the court's desire for a thorough and balanced forensic evaluation. Furthermore, the Support Magistrate never made a finding of indigence. To the extent respondent seeks to challenge the court's decision to assign counsel to petitioner, he does not have standing to lodge such a challenge.

The court's denial of recusal was a proper exercise of discretion. Absent statutory grounds, the movant for such relief must point to an actual ruling that demonstrates bias, which respondent failed to do. Respondent's motions to dismiss the custody petitions for failure to comply with the procedural time limitations in the Uniform Rules for Trial Courts (22 NYCRR) § 205.14 and CPLR 2219(a) were properly denied. Given his many attempts to prolong the proceedings by changing counsel and repeatedly requesting counsel without providing financial documentation, arriving late and unprepared in court, repeatedly requesting adjournments, and failing to cooperate with the forensic evaluation process, it is disingenuous for him to complain about the court's failure to complete the trial and decide his first dismissal motion in a timely fashion. Moreover, neither of those authorities provides a remedy or penalty for failing to comply with time requirements. The Family Court Clerk properly refused to produce a transcript of the child’s in camera testimony for respondent's review. Such testimony is confidential, and respondent failed to give a sound reason for its disclosure. Thus, the Court held that, there is no basis for striking the appellate briefs for petitioner and the child.

Respondent's argument that his due process rights continue to be violated by the Family Court is improperly raised for the first time in his reply brief, and the Court declines to consider it.

Family Court Act applies only to family offense proceedings, not custody proceedings. If you have child custody issues, seek the advice of a Bronx Family Attorney and Bronx Child Custody Attorney in order to assist you with the custody proceedings. At Stephen Bilkis and Associates, we have reliable Bronx Order of Protection Attorneys to choose from.