Custody

Published on: March 19, 2014

Court Decides Case Regarding Child Endangerment Charges

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered September 29, 2009, convicting him of sexual abuse in the second degree (seven counts) and endangering the welfare of a child (two counts), after a nonjury trial, and imposing sentence. A Kings Child Custody Lawyer said that, the motion by the nonparty-appellant to stay enforcement of an order of the Family Court, Kings County, dated November 30, 2010, and to continue care and custody of the subject child with the child’s maternal grandmother, pending hearing and determination of an appeal from the order. Application by the maternal grandmother to adjourn the return date of the motion to submit papers supporting the motion.

The issue in this case is whether defendant has been deprived of his constitutional right during the proceedings.

A New York Family Lawyer said the Supreme Court did not deprive the defendant of his constitutional right of confrontation by prohibiting him from cross-examining one of the complainants or eliciting testimony about that complainant’s prior sexual conduct. Contrary to the defendant’s contention, such evidence was not relevant to support his defense that this complainant’s testimony was fabricated. The defendant was given ample opportunity to develop evidence to support his position that this complainant had a motive to fabricate his testimony. Accordingly, evidence of this complainant’s prior sexual conduct was irrelevant and properly excluded by the Supreme Court under the rape shield law.

Published on: March 18, 2014

Court Hears Case Regarding Malicious Prosecution in Family Law Case

by Stephen Bilkis

A New York Family Lawyer said that, defendant moves pursuant to CPLR § 3211 (a)(7) to dismiss plaintiff’s complaint and to sanction plaintiff pursuant to 22 NYCRR §130.1-1(a). Plaintiff opposes the motion. On November 23, 2003, plaintiff commenced an action against the defendant by filing a summons and verified complaint with the Kings County Clerk. The complaint sets forth twenty five allegations of fact in support of one cause of action for malicious prosecution based on defendant’s commencement of three Family Court proceedings and one Criminal Court complaint against the plaintiff. Defendant contends that the plaintiff’s complaint does not state a cause of action and merits sanctions as frivolous.

A New York Custody Lawyer said that, the undisputed facts establish that the parties were married on May 21, 1989 in Brooklyn, New York. They have a daughter born on October 29, 1989, and a son born on March 10, 1992. By written agreement dated April 22, 2001, the parties legally separated. On June 19, 2001, defendant’s action for divorce was resolved by a divorce judgment issued by the Kings County Supreme Court. The divorce judgment incorporated the parties’ separation agreement and granted the defendant, among other things, custody of their children, six hundred dollars of monthly child support payments, and additional child support for the children’s unreimbursed medical and school expenses. The judgment also granted the Family Court concurrent jurisdiction with the Supreme Court on issues of maintenance, support, custody and visitation.

A Westchester County Family Lawyer said that, defendant commenced three separate civil proceedings against the plaintiff in Kings County Family Court. Pursuant to Article 8 of the Family Court Act, defendant filed a petition, under docket number O-08296/02, alleging that the plaintiff committed certain family offenses. Family Court Judge found that there was good cause shown to issue the defendant a temporary order of protection restraining the plaintiff from assaulting, harassing, menacing or threatening her. The petition was eventually dismissed.

Published on: March 17, 2014

Court Hears Case Regarding Child Abuse and Neglect

by Stephen Bilkis

A New York Family Lawyer said that, New York City Children’s Services (hereinafter NYCCS) filed a petition against respondent mother alleging that her son’s physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired, as a result of her failure to exercise a minimum degree of care in supplying him with an adequate education in accordance with the provisions of part I of article 65 of the Education Law. Specifically, the petition alleges that the boy missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.

A New York Child Custody Lawyer said that, on the day the petition was filed, the boy was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. The fact-finding hearing was conducted on July 29, 2008, November 17, 2008 and January 7, 2009. NYCCS called one witness, a caseworker, on its direct case. She testified that the original oral report transmission (hereinafter ORT) was received from the Children’s Aid Society on June 14, 2007. That day, NYCCS convened a case conference.

The proof with respect to educational neglect consisted solely of the records that NYCCS introduced into evidence including the ORT, the boy’s school records from the 2006-2007 and 2007-2008 school years, the ORT dated September 18, 2008, the ORT dated November 21, 2008, and his school records from the 2007-2008 school year. His school records establish numerous unexcused absences during the period prior to the filing of the petition. For the 2006-2007 school year, he attended P.S. 582 during September 2006. An attendance sheet from P.S. 582 indicates that he was absent seven days that month and late five times. Thereafter he was suspended for fighting.2 after his suspension, he attended P.S. 252 in February 2007. An attendance sheet from P.S. 252 indicates that he was absent four days in February 2007. After that, he was transferred to a “suspension school,” P.S. 607 or the Academy, from February 2007 until January 2008.

Published on: March 16, 2014

Court Hears Case Regarding Promoting Contraband

by Stephen Bilkis

A New York Lawyer said that, the presentment agency filed a petition charging that the respondent committed an act which if committed by an adult would constitute the crime of promoting contraband in the second degree. A fact-finding hearing commenced before me on October 6, 2003 and was continued on October 8, 2003. A Community Associates and Probation Officer testified for the presentment agency.

A New York Child Custody Lawyer said that, on August 25, 2003 the respondent made his initial appearance concerning a petition filed against him in Kings County Family Court. He was released on that date with the condition that he attend Kings Alternatives to Detention. (Hereinafter ATD.)The director of Kings ATD. She testified that participants in Kings ATD are required to attend the program Monday through Friday, from 8:00 a.m. to 4:00 p.m. The program is located on the sixth floor of 345 Broadway and consists of offices for the probation staff, a cafeteria, a recreational area, and classrooms for the attendees.

She also told the court that the attendees are not locked inside the building, but that they are supposed to remain inside the facility during its hours of operation. Attendees who leave the premises during operating hours are considered absent without leave, and ATD “would request of the court their parole to ATD be terminated forthwith.” She went on to say that before entering the premises of Kings ATD, each attendee is searched. A security officer has the attendees empty their pockets and then conducts a pat down of each attendee.

Published on: March 15, 2014

Family Court Hears Case Regarding Juvenile Respondents

by Stephen Bilkis

This decision follows the release of the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c), after the court held a pre-petition hearing and determined that the court had jurisdiction to detain the respondents pending a petition being filed.

A New York Family Lawyer said that, on Sunday, August 7, 2011 at about 7 p.m. uniformed police officers took both thirteen-year-old respondents into custody in connection with an alleged robbery occurring on the same date. Apparently, respondent D was identified in a show-up and arrested by the uniformed officers before being transported to the 94th Precinct. The basis for the detention of respondent is less clear, although he also may have been under arrest. Both respondents were detained at the 94th Precinct for over twenty-four hours until the evening of August 8, when they were taken to the Horizons detention center, from which the respondents were brought to the Kings County Family Court on the morning of Tuesday, August 9, 2011. Altogether the respondents were in custody for about thirty-eight hours before being produced in court. These facts came to light in a pre-petition hearing held under Family Court Act § 307.4 on the morning of August 9.

A New York Custody Lawyer said that, while in detention at the 94th Precinct on Sunday night, the respondents were placed in lineups arranged by detectives in connection with an investigation into events occurring on Saturday August 6, unrelated to the event that lead to their detention by the uniformed officers on August 7. Specifically, the detective testified that the respondents were detained at about 7 p.m. on August 7 by the uniformed police officers in regard to an alleged robbery. The uniformed officers brought the respondents to the 94th Precinct. The detective understood that defendant was under arrest, although he was not certain about the other defendant. The uniformed officers notified the respondents’ parents, who appeared at the precinct sometime around 8 p.m. on August 7. The detective suspected that the respondents may have been involved in two additional crimes on August 6. Apparently the detective questioned both respondents in the presence of their parent in relation to the August 6 crimes, and defendant made a statement at about 8:35 p.m. on August 7. The detective arranged for both respondents to be placed in line-ups at about 12:45 a.m. on August 8 with regard to one of the August 6 crimes. The result of those line-ups is unclear. The detective decided to conduct a second line-up with regard to the second August 6 crime, later in the day on August 8.

Published on: March 14, 2014

Court Decides Disturbing Case Regarding Alleged Child Abuse

by Stephen Bilkis

A New York Family Lawyer said that, on May 30, 2006, the Administration for Children’s Services (ACS) filed a motion pursuant to Family Court Act § 1039-b for entry of an order that finds that reasonable efforts to return the subject child to respondent mother are not required, because the court had entered a finding of severe abuse and aggravated circumstances as defined in Family Court Act § 1012 (j). The respondent requested various adjournments to respond to the motion. On September 23, 2006, respondent mother submitted opposition papers requesting a hearing on the motion. The law guardian supported ACS’s motion without submitting papers. The court heard oral argument on the motion on October 2, 2006, where ACS urged this court to grant its motion without a hearing. The court subsequently scheduled the motion for a hearing, with its analysis incorporated in this written decision.

A New York Child Custody Lawyer said that, ACS filed a petition, alleging that the subject child is an abused child, and that is a derivatively abused/neglected child, pursuant to Family Court Act § 1012. On February 22, 2006, with leave of this court, ACS filed an amended petition against both respondents, alleging that the subject child is an abused child, as defined by Family Court Act § 1012 (e), and is severely abused by his mother, pursuant to Social Services Law § 384-b (8) (a) (i). The amended petition further alleges that as a result of the severe abuse of the subject child, his two-year-old half-sibling, is derivatively severely abused by her parents, respondent mother and respondent father. The amended petition alleges that four-year-old child suffered multiple serious injuries, including a bone-deep laceration to his chin, multiple bruises, burns and marks about his body, all of which respondents failed to seek timely medical attention for.

A Kings Order of Protection Lawyer said that, the respondent mother pleaded guilty in Kings County Supreme Court to a violation of Penal Law § 120.25, reckless endangerment in the first degree, with respect to failing to seek prompt medical treatment for the subject child’s injuries for the two-month period from March 6 to May 6 of 2005, and to a violation of Penal Law § 260.10, endangering the welfare of a child. William’s stepfather, a person legally responsible for him, also pleaded guilty to a violation of Penal Law § 120.25, reckless endangerment in the first degree, and violation of Penal Law § 260.10, endangering the welfare of a child.

Published on: March 13, 2014

Court Reviews Case Regarding Jurisdiction Issue

by Stephen Bilkis

This proceeding was brought by the petitioner under subdivision 1 of section 332 of the Election Law to cancel the enrollment of the respondent as a member of the Democratic party of the county of Kings.

A New York Family Lawyer said that the petition alleges that respondent in a verified affidavit, requested that his enrollment be transferred from the thirty-seventh Election District of the nineteenth Assembly District to the fortieth Election District of the nineteenth Assembly District.

The respondent by lease became the tenant of premises in Kings County for a term of four years, which term has since expired, but the occupancy thereof has continued under the terms of the lease either by automatic renewals of terms of one year or under the emergency rent laws. The family of the respondent apparently at all times since the tenancy began of said premises has remained in occupancy thereof to the present time. It is indicated by the evidence that such family consists of the wife of the respondent and an unmarried son. The respondent is a lawyer engaged in practice in Kings County and, judging from the photograph introduced in evidence of the premises, it would appear that he either enjoys a good practice or is a man of some substance.

Published on: March 12, 2014

Court Reviews Unusual Case Regarding Suspected Poisoning of Decedent

by Stephen Bilkis

In this case, the defendant stands convicted of murder in the first degree upon an indictment which charges that the defendant willfully, feloniously and of malice aforethought poisoned the deceased, by giving and administered to her a quantity of poison, to wit, strychnine, and as a result of said poisoning said deceased died in December1943.’

A New York Family Lawyer said that the defendant is a pharmacist who for a period of years had been employed at a drugstore operated by the witness. He married the decedent in 1940 when she was twenty years old and he was thirteen years her senior. Although the record does not tell whether during the three years of their life together a child was born of the marriage, it does appear that the decedent was pregnant at the time of her death and that her pregnancy was not accompanied by unusual illness.

A New York Child Custody Lawyer said one evening, when the defendant was on duty at his place of business and the decedent was alone in their apartment she was called upon by her sister. At that time there were no indications that the decedent was ill. Within an hour after her sister left the decedent, the witness who lived on the same floor heard a strange noise which led her to open a door leading into the outside hallway. As she did so she saw the decedent standing in the doorway of the apartment apparently in distress. Upon going to her assistance she noted that the decedent’s body had stiffened, her face was drawn, ‘her eyes were like big saucers, very big, and she kept cringing like that, shivering, her body shaking.’ Her hands were clenched and drawn in toward her chest and her arms were bent from the elbows. After the witness had summoned by telephone the defendant, the decedent’s sister, and the decedent’s attending physician, she was aided by two other neighbors in placing the decedent on a bed. Although the decedent was conscious her legs had stiffened with toes turned in and her hands were in a claw-like position with fingers, wrists and elbows bent. She repeatedly cried out ‘I’m dying,’ ‘The sooner I die the better,’ ‘Let me die now,’ ‘I’m in terrible pain,’ ‘Don’t touch my feet.’ When the doctor arrived he found the decedent in a convulsion.

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 10, 2014

Court Reviews Motion for Summary Judgment

by Stephen Bilkis

A New York Family Lawyer said the plaintiff commenced this action to foreclose a mortgage given by defendant Realty Corporation, to secure a promissory note of the same date in the amount of $1,450,000.00 executed by defendant borrower in favor of a Savings Bank. The note was further secured by the written unconditional guarantees of payment executed by guarantor defendants. The subject mortgage, in which the mortgagor promised to pay the debt a provided in the note executed by defendant borrower was recorded in the office of the County Clerk. The original lender/mortgagee, the parent company of the plaintiff, assigned the promissory note secured by the subject mortgage and such mortgage to the plaintiff by a written assignment bearing a corporate acknowledgment. That assignment was recorded in the office of the Suffolk County Clerk thereafter.

A Kings County Family attorney said that the mortgaged premises consist of commercial property situated in New York which houses several rental units of commercial space. In its complaint, the plaintiff alleges that the mortgagor defendant defaulted in making the payment due and such default has not been cured. The plaintiff thereafter elected to accelerate the mortgage debt, the principal amount of which was $1,371,504.21 as of the date of complaint.

A New York Custody Lawyer said that the plaintiff seeks recovery of such amount together with late fees, interest and reasonable counsel fees upon the public sale of the subject premises, and a deficiency of judgment, if there be any following such sale, against the obligor defendants.