Nassau

Published on: March 11, 2014

Petitioner Seeks to Modify Child Custody Due to Out of State Relocation

by Stephen Bilkis

In 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, as, after a hearing, denied her cross petition to modify a prior custody order, by permitting her to relocate with the subject children to Maryland.

A New York Family lawyer said that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence that the proposed move is in the child’s best interests”. When evaluating whether a proposed move will be in the child’s best interests, the factors to be considered “include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”

A New York Child Custody Lawyer said that although the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of the hearing court, we allowed a relocation determination to stand where it lacks a sound and substantial basis in the record. Moreover, in relocation determinations, our authority is as broad as that of the hearing court.

Published on: March 8, 2014

Court Discusses County Detension Program

by Stephen Bilkis

A New York Family Lawyer said an agency filed an appeal charging a man committed an act which if committed by an adult would constitute the crime of promoting contraband in the second degree. A fact-finding hearing was commenced. A community associate, a director, and a probation officer testified.

A New York Custody the offender made his initial appearance concerning the issue filed against him in the family court. He was released on that date with the condition that he attends the county’s alternatives to detention.

The director of the county’s alternatives to detention testified that participants are required to attend the program Monday through Friday, from 8:00 a.m. to 4:00 p.m. The program is consists of offices for the probation staff, a cafeteria, a recreational area, and classrooms for the attendees.

Published on: March 3, 2014

Court Decides Case Regarding Subject Matter Jurisdiction

by Stephen Bilkis

A New York Family Lawyer said that, based upon the foregoing papers, defendant (Father) moves for a suspension and downward modification of his child support obligations on the ground that plaintiff (Mother) allegedly has refused his visitation with the parties’ daughter, has removed the child to another jurisdiction without court approval or notice to Father and has failed to provide him with an address, telephone number or e-mail address for the child. He further moves for an order directing a change of custody and/or immediate visitation with the child.

A New York Child Custody Lawyer said that, the mother cross-moves for dismissal of Father’s application on the grounds that: (1) the court lacks subject matter jurisdiction to resolve the instant motion, pursuant to Domestic Relations Law § 76-a (1) (b), since neither the parties nor the child resided within the state of New York on the filing date of the subject application or six months prior to same; and (2) the court lacks subject matter jurisdiction because the child and her mother, the plaintiff, had no significant connection with the State of New York on the filing date of the instant application and for six months prior to such filing, and, in addition, substantial evidence is no longer available in the State of New York concerning the child’s care, protection, training and personal relationships. Plaintiff also moves, alternatively, for an order whereby the court declines jurisdiction over the instant custody/visitation dispute on the ground that New York is an inconvenient forum and a declaration that the province of Ontario, Canada is the appropriate forum to exercise jurisdiction over the controversy between the parties. The parties were divorced pursuant to a judgment of divorce which was granted upon Father’s default on May 10, 2006.

A Nassau County Family Lawyer said that, in support of his instant motion, Father submits an affidavit wherein he states the following, in relevant part, concerning the background of the subject custody/visitation dispute between the parties and the current custody/residential arrangements for the child. In support of her cross motion, Mother states that the subject judgment of divorce was obtained upon the default of Father. He was served by Mother with all divorce documents in Santa Clara, California, after he was located there by private investigators retained by Mother. He commenced his own action for divorce against Mother on June 27, 2005, but thereafter did not prosecute such action. A Kings Divorce Lawyer said that, in further support of his motion and in opposition to Mother’s cross motion, Father submits an affidavit.

Published on: March 2, 2014

Court Discusses Guardians’s Motion to Dismiss

by Stephen Bilkis

A New York Family Lawyer said that, the petition in this matter was filed on or about May 14, 1991 in Westchester County Family Court and on July 18, 1991 a fact-finding hearing was held. Thereafter the Court entered a finding that the respondent committed an act which, if done by an adult, would constitute the crime of Assault in the Third Degree under Penal Law § 120.00(1) which is a Class A misdemeanor. Pursuant to § 302.3(4) of the Family Court Act [hereinafter cited as “FCA”] the Judge in Westchester County ordered the proceeding transferred to the Family Court of Kings County for further action, and released the respondent to the custody of her mother pending the dispositional hearing.

A New York Custody Lawyer said that, on August 26, 1991 the case arrived in Kings County from Westchester County. On August 27, 1991, the case appeared on the court’s calendar and a summons was issued for the respondent. The respondent appeared with her mother on the return date, September 23, 1991, and a new law guardian was assigned, as the attorney who represented the respondent in Westchester County was discharged at the conclusion of the fact-finding. The Court ordered a probation investigation, pursuant to FCA § 351.1(2) and adjourned the case to October 30, 1991. On October 30, 1991 the law guardian requested time to submit a written motion dismissing the proceeding, and whatever rights the respondent may have had to a “speedy disposition” were waived by the respondent’s attorney at that time in order to prepare the motion.

A Nassau County Family Lawyer said that, the law guardian asks the Court to dismiss the petition, pursuant to FCA § 350.1(2), which provides that in all cases where the respondent is not detained, “the dispositional hearing shall commence not more than fifty days after entry of an order [fact-finding] pursuant to FCA § 345.1.” Respondent argues that the time from which to measure the fifty days begins on August 5, 1991 when the Westchester court entered the fact-finding order. Therefore the Court was required to conduct a dispositional hearing before September 24, 1991. When the case was adjourned from September 23, 1991 to October 30, 1991, that adjournment exceeded the fifty days provided for in the statute, and since the Kings County court made no finding of “good cause” or “special circumstances,” pursuant to FCA § 350.1 (3) or (5) to warrant an adjournment beyond the fiftieth day, the case must be dismissed for failure to provide the respondent with a “speedy disposition.”

Published on: February 24, 2014

Court Decides Child Neglect Matter

by Stephen Bilkis

An institution moved to request a decision without a hearing for a child neglect matter. The complainant requested the court to enter a finding of derivative neglect against the mother of the child based on the court’s prior finding of neglect as to the offender’s older children.

A New York Family Lawyer said that in support of the motion, the complainant stated that the derivative neglect appeal was filed in close proximity to the finding of the recent child neglect issue and the condition of the mother’s faulty parenting continued to exist.

Subsequently, the child’s attorney stated that the mother had accepted services and did not exhibit such an impaired level of parental decision as to create a substantial risk of harm to the child, and therefore, the complainant had not met its argument for derivative neglect.

Published on: February 18, 2014

Court Decides Termination of Parental Rights Proceeding

by Stephen Bilkis

A New York Family Lawyer said by amended petition, the petitioner alleges that the child is an abused and neglected child within the meaning of Family Court Act. The petition further alleges that the respondent woman is the mother of the child and that the man, a non-respondent in this proceeding, is the child’s putative father. More specifically, the amended petition alleges, in pertinent part, that the court found that woman has abused and neglected her son based upon the fact that her daughter drowned in a bathtub while in the care of the mother. The respondent mother admitted to leaving the child unattended in the tub of water for several minutes and she was ultimately convicted of manslaughter for the death of the child. The court entered a dispositional order directing the respondent to complete domestic violence counseling, individual counseling and family counseling, but she has failed to do so. In addition, a termination of parental rights proceeding is pending against the mother in Family Court with respect to the child Sean. In addition, the petitioner alleges that the respondent mother suffers from a chronic and severe mental illness and that, due to that mental illness, the child is at risk of becoming an abused and neglected child.

A New York Child Custody Lawyer said the initial appearance upon the petition was conducted on April 3, 2002. On that date, the respondent mother appeared before another Family Court Judge who assigned the counsel to the respondent, issued an order paroling child custody to her putative father and directed that the respondent have only supervised visitation with the child. Thereafter, the Commissioner filed the amended petition.

A Nassau County Family Lawyer said that prior to the filing of the child protective petition, a petition had been filed against the mother pursuant to Social Services Law by the Children’s Services, an authorized child care agency, seeking termination of her parental rights to her son, an older half-sibling of the child. That petition alleged that the mother was mentally ill within the meaning of Social Services Law and that she had permanently neglected her son within the meaning of Social Services Law. In connection with the termination of parental rights proceeding, the County court directed that the respondent woman be examined by a licensed psychologist on the staff of the Court Mental Health Services Clinic.

Published on: December 31, 2013

Court Rules on Child Molestation Case

by Stephen Bilkis

The Nassau County Department of Social Services filed amended child abuse and neglect petitions against the father on behalf of his children who was four years and two and one-half years old at the time.

A New York Family Lawyer said the petitions alleged that on numerous and diverse occasions occurring prior to about October 27, 1987, the father had put his penis in the four year old child’s private part, inserted his fingers in her private part, and touched the private part of the two year old child. The petitions alleged that all of these acts threatened and endangered both children’s emotional health, safety and well being.

The allegations of abuse, heretofore described, were based on out-of-court statements made by the two children. It is well settled that out-of-court statements of a child relating to allegations of abuse are admissible at a fact-finding hearing and, if they are properly corroborated by evidence tending to support their reliability, may support a finding of abuse. A New York Custody Lawyer said in the instant proceeding, the Family Court held that the validation testimony of a social worker constituted sufficient corroboration of the afore-noted allegations of abuse.

Published on: December 22, 2013

Court Decides on Executor’s Accounting

by Stephen Bilkis

A New York Family Lawyer said that, before the court is the first and final account of the Public Administrator of Nassau County for the estate of the decedent who died intestate, a resident of Great Neck, New York, on August 8, 2006. Letters of administration issued to the Public Administrator on April 19, 2007; the petition and account were initially filed on November 6, 2009. The petition identifies a combined total of 29 alleged maternal and paternal first cousins. A guardian ad litem was appointed by the court to represent the interests of decedent’s missing or unknown distributees. Kinship hearings were conducted before a referee on September 23, 2010 and November 16, 2010. Over 130 exhibits were admitted into evidence at the hearings, and an additional 14 exhibits were admitted after the hearing on the consents of counsel and the guardian ad litem. Testimony was taken from a professional genealogist and several members of decedent’s family, both blood relatives and those related by marriage.

A New York Custody Lawyer said that, the account as filed shows total charges of $830,114.16, and total credits of $123,505.94. The account was filed in November 2009 and must be brought current. The executor seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant. In addition, the court must address the outcome of the two kinship hearings, set the fee for the guardian ad litem and release the administrator from the surety bond.

A Nassau County Family Lawyer said that, the testimony at the kinship hearings and the exhibits admitted into evidence are testament to the extraordinary efforts expended by counsel to the Public Administrator, the genealogist, and the attorney for the claimants to identify all of the heirs of this very extended and extraordinary family. The court notes that the family tree prepared for the paternal side of the decedent’s family is nearly seven feet in length; the family tree for the maternal side is over ten feet in length. The court will also take judicial notice that records of vital statistics in the 19th and early 20th centuries for African-American families in the Deep South, where decedent and many of her ancestors and other relatives were born, are often incomplete or non-existent.

Published on: December 21, 2013

Mother Appeals Father’s Reduction in Child Support

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act, the mother appeals from an order of the County Family Court which denied her objections to so much of an order of the same court, as, after a hearing, granted that branch of the father’s petition which was for a downward modification of his child support obligation as set forth in a stipulation of settlement, which was incorporated but not merged into the parties’ judgment of divorce to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month, and, in effect, denied her cross petition for an upward modification of the father’s child support obligation.

A New York Family Lawyer said the order is reversed, on the law and the facts, with costs, the mother’s objections are sustained, so much of the order as granted the branch of the father’s petition which was for a downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month and, in effect, denied her cross petition for an upward modification of the father’s child support obligation is vacated, that branch of the father’s petition which was for a downward modification of his child support obligation is denied, the mother’s cross petition for an upward modification of the father’s child support obligation is reinstated, and the matter is remitted to the County Family Court for a hearing and new determination on the mother’s cross petition for an upward modification of the father’s child support obligation; and it is further ordered that pending a new determination, the child support provisions of the stipulation of settlement which were incorporated but not merged into the judgment of divorce are reinstated.

A New York Child Custody Lawyer said the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. Generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Here, the father did not establish that the parties’ stipulation of settlement was not fair and equitable when entered into, and further failed to establish a showing of an unanticipated and unreasonable change in circumstances. Accordingly, the father was not entitled to a downward modification of his child support obligation as set forth in the parties’ stipulation of settlement, and the mother’s objections regarding the downward modification should have been sustained.

Published on: November 15, 2013

Court Rules on Separation Agreement

by Stephen Bilkis

A petition to modify an order made by another court pursuant to the Family Court Act was filed in the County Family Court. The petitioner former husband of the respondent wife seeks sole child custody of his son.

A New York Family Lawyer said a decree of divorce was filed and entered. The decree was made by New York Supreme Court. The basis of jurisdiction for the decree was a separation agreement entered into between the parties in New York which had been adhered to by the parties for one year prior to the commencement of the divorce proceeding. The separation agreement entered into between the parties was filed in the County Clerk’s office. The terms of the separation agreement were incorporated, but not merged, in the decree of divorce.

A New York Child Custody Lawyer said the divorce decree ordered that all matters arising in the future pertaining to the enforcement of this decree or to requested modifications of any provision thereof, whether pertaining to child support, visitation or child custody, be and the same hereby are referred to the County Family Court or the appropriate Family Court having jurisdiction of the matter.