Custody

Published on: March 5, 2014

Court Discusses Case Involving Juvenile Delinquent

by Stephen Bilkis

A New York Family Lawyer said a fifteen-year old boy has petitioned the Supreme Court to prohibit the judges of the Family Court from reopening a fact-finding hearing by which he may be adjudged a juvenile delinquent, on the grounds that he will thereby be subjected to double jeopardy in violation of the Fifth and 14th Amendments to the United States Constitution, and contrary to the New York State Constitution.

The petitioner contends that he had already been exposed to jeopardy of his liberty in the Family Court when a witness was sworn and testified against him in an adjudicatory hearing, based upon a petition which charged him with criminal assault. In the midst of that proceeding the court declared a mistrial, over the objections of the law guardian for the petitioner. In fact, the presiding judge ordered the mistrial, Sua sponte, and for his own convenience. The judge remarked as he did so that he is disqualifying himself and declaring a mistrial.

A New York Child Custody Lawyer said the next day, the presiding judge, on his own initiative, recalled the case and abrogated the mistrial order for the purpose of reinstating the adjudicatory hearing against the accused. The law guardian again objected and raised the constitutional issue of double jeopardy as a bar.

Published on: March 4, 2014

Court Decides a Case Involving Double Jeopardy

by Stephen Bilkis

A New York Family Lawyer said that, in this Article 78 proceeding the petitioner, a boy 15 years of age, seeks an order prohibiting the respondent, Judges of the Family Court of the County of Kings, from re-conducting a fact-finding hearing upon the ground that to do so would place him in double jeopardy.

A New York Child Custody Lawyer said that, the juvenile delinquency petition made by a police officer, alleged in substance, on information and belief, that on November 19, 1968 the petitioner, while acting in concert with two other youths, did take and operate a Chevrolet truck, without the owner’s consent or permission, and did drive the truck across the street into two other parked vehicles, as a result of which all three vehicles were damaged. It was further alleged that the acts of the petitioner, if done by an adult, would constitute the crime of Unauthorized Use of Vehicle.

A Kings Order of Protection Lawyer said that, the fact-finding hearing, at which both sides were represented by counsel and had indicated readiness to proceed, commenced on January 14, 1969. The police officer testified that while on patrol he received information, gave chase, and apprehended the petitioner who was running on the sidewalk and took him into custody. He did not see the petitioner in the truck. Confronted with this situation the prosecutor asked the court for a moment and then said ‘After further consultation’ but he got no further. The court declared ‘All right. Mistrial.’ Petitioner objected to a mistrial. The court then continued questioning the officer who reiterated his prior testimony. Finally, the prosecutor said he was not ready, ‘That’s the way it stands now’, but added that he did have a witness to establish that petitioner was in the truck. The court said ‘One adjournment. Mistrial granted. Adjourned.’ It then developed that the missing witness was the son of the owner of the truck who was not present because he was tending to the business. The owner indicated a willingness to telephone his son to see if he was able to come down. The petitioner’s attorney stated to the court that a double jeopardy question was involved. The hearing ended with the court’s statement ‘Adjourned to 2/7/69. Mistrial granted. Police officer needs a witness.’ The court endorsed that language on the back of the petition.

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: March 1, 2014

Defense Claims Plaintiff’s Case is Frivolous

by Stephen Bilkis

A New York Family Lawyer said that, plaintiff seeks an order 1) granting Plaintiff leave of Court to voluntarily discontinue the Instant Action without prejudice; or, alternatively, 2) consolidating this action with the Kings County Action; 3) determining the appropriate venue in which these two actions should be litigated; and 4) granting certain injunctive relief.

A New York Custody Lawyer said that, defendants oppose Plaintiff’s motion and cross move for an Order awarding sanctions against Plaintiff and his counsel for their allegedly frivolous conduct in filing this motion. The Amended Verified Complaint (“Complaint”) in this action, filed June 12, 2009, describes this case as an action arising as a result of Defendant breaches of his agreements with Plaintiff regarding the operation of a corporation. Plaintiff has sued 1) in his individual capacity to recover sums representing his capital contributions, plus interest, 2) for monetary damages arising from plaintiff’s allegedly fraudulent misrepresentations and breaches of his fiduciary duties as the corporation’s member-manager, 3) for declaratory relief recognizing that the corporation is the owner of the disputed property (“Property”) located at 500 4th Avenue, Brooklyn, New York, and 4) for the imposition of a constructive trust on the proceeds from sales of the Property or any part thereof. The Court has conducted numerous conferences in this matter.

A Suffolk County Family Lawyer said that, by Verified Complaint, Plaintiff, individually and as a member of the corporation, filed the Kings County Action. In the Kings County Complaint, he alleges, inter alia, that defendant fraudulently diverted funds related to the corporation and the Property and seeks injunctive relief. On August 6, 2010, counsel for the parties appeared before the Justice assigned to the Kings County Action in connection with an application for a temporary restraining order in the Kings County Action and Defendants’ counsel has provided a transcript of those proceedings. The Assigned Justice in the Kings County Action concluded that it was inappropriate for her to address the application before her in light of the pending action before this Court, stating that “the order to show cause is declined because another action is pending for the same relief in Nassau County”.

Published on: February 28, 2014

In Deciding Custody, Court Considers the Best Interests of the Child

by Stephen Bilkis

A New York Lawyer said in related proceedings pursuant to Family Court Act, the mother appeals from an order of the Family Court without a hearing, dismissed her petition to modify an order of visitation and an order of the same court, which, without a hearing, dismissed her petition to hold the father in contempt for his willful violation of an order of the same court.

A New York Custody Lawyer said the order dismissing the petition to modify the order of visitation is reversed, on the law, without costs or disbursements, that petition is reinstated, and the matter is remitted to the Family Court for a hearing to determine whether a modification of the visitation schedule is in the best interests of the child. The order dismissing the petition to hold the father in contempt is affirmed, without costs or disbursements.

The Family Court improperly dismissed the mother’s petition to modify the order of visitation. Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child. Here, the mother met that burden, as the modification of visitation petition alleged that in the past year the father had missed 40-50% of his visits with the subject child. Therefore, the court reversed the order dismissing the petition to modify the order of visitation, reinstate that petition, and remit the matter to the Family Court for a hearing to determine whether a modification of the visitation schedule is in the best interests of the child.

Published on: February 27, 2014

The issue in this case is whether the motion of the defendant to dismiss the indictment should be granted.

by Stephen Bilkis

A New York Family Lawyer said that, on January 29, 1967 the defendant was arrested for felonious assault committed by him upon his wife by slashing her face with a knife. On the following day, defendant was arraigned on that charge in the Criminal Court of Queens County and was held in bail. The matter was adjourned on a number of occasions, until February 10th, when, after a hearing was had, defendant was held for the action of the grand jury. On March 15, 1967, the indictment herein was returned, and it charged defendant with two counts of assault in the second degree. On March 29th after counsel was assigned to defendant, he was arraigned on that indictment, plead not guilty, and the matter was adjourned. On May 11, 1967, upon motion of his counsel (and not by the district attorney as defendant erroneously states in his affidavit), an order was made in this Court transferring this matter to the Family Court.

A New York Custody Lawyer said that, defendant apparently remained incarcerated until July, when upon a writ of habeas corpus he was paroled ‘pending his appearance in the Family Court on August 7, 1967’ and the district attorney was directed to submit an order transferring the matter to that court. On August 22nd the Family Court advised defendant that that court did not choose to handle the matter. It thereupon sent the case to the Criminal Court of the City of New York although the transfer to it had been made by the Supreme Court. The Criminal Court thereafter dismissed the proceeding before it and the procedures relative to the pending indictment were thereupon continued in this Court.

The issue in this case is whether the motion of the defendant to dismiss the indictment should be granted.

Published on: February 26, 2014

Court Discusses Domestic Relations Law 240

by Stephen Bilkis

A New York Family Lawyer said that, in this case a father who is serving 25 years to life for murdering the mother of his children (i.e., murder in the second degree) seeks to modify the provisions of the custody order which give him no communication, contact or visitation rights with his children. The motion to dismiss his petition is granted because there is no change of circumstances to justify even getting to a best interests test. He also alleges a violation of certain alleged rights to get information about the children under the custody order. The two subject children one boy (born December 27, 2000, age 9) and one girl (born January 29, 2002, age 8). The respondents herein, the maternal aunt and uncle of the children, were awarded custody of the children after the children’s mother was murdered by their father, the petitioner herein. On October 19, 2009, the father filed two sworn, pro se petitions.

A New York Child Custody Lawyer said that, the father’s first petition seeks to modify a prior Order of Family Court, alleging that the uncle had told the father that the children wish to visit the father and have written and telephone contact with the father, and that they assent to visitation and understand the father’s incarceration and emotional and other ramifications. On December 2, 2009, counsel for the aunt and uncle cross-petitioned for summary judgment dismissing the father’s visitation petition, alleging that the father failed to state a sufficient change of circumstances to support a modification.

A Suffolk Visitation Lawyer said that, the father’s second petition alleges a violation of the prior order of Family Court. The father alleges that the aunt and uncle willfully failed to obey the court order by not providing at least annual updates regarding the status of the children’s health, education and general well-being as well as updated photographs of the children. Counsel for the aunt and uncle also cross-petitioned for dismissal of this violation petition, arguing that the judge struck from the order the provisions to which they had otherwise agreed which would have allowed the respondents to initiate contact or communication with the father. Thus, they contend there has been no violation. Counsel for the father opposed both motions for dismissal, after time was extended for him to respond through counsel in writing. The Children’s Attorney filed papers in support of the motions, requesting that both petitions be dismissed.

Published on: February 25, 2014

Wife Contends Husband Attempted to Conceal Income

by Stephen Bilkis

This is an action for divorce and ancillary relief.

A New York Family Lawyer said that on 29 December 1984, plaintiff wife and defendant husband got married. Sometime in 1989, the defendant went into business with a partner to buy a funeral home in Suffolk County. Plaintiff, on the other hand, operated a separate business which provided headstones, and ran a small karaoke business.

Sometime in March 2004, plaintiff commenced an action for divorce. At that time, the parties had two unemancipated children at.

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.