Custody

Published on: November 8, 2013

Court Discusses Mistake of Law vs Mistake of Fact in Custody Proceeding

by Stephen Bilkis

This proceeding concerns the petition of an Adoption Service for commitment of a minor to its custody under Section 384 of the Social Services Law. Petitioner commenced this proceeding sometime in December 1972. A New York Family Lawyer said the natural mother of the infant was served and defaults in this proceeding. The natural father was also named as a respondent at the direction of the court and was served with citation. In compliance with a Court’s ruling, a hearing was and several months were required for the submission of briefs. Under jurisprudence, an unwed father’s right to custody of his child cannot be terminated without the hearing requirements of due process of law. That case, in fact, involved an unwed father who had raised his children in his own home.

A New York Family lawyer said that the natural father, who lived out-of-wedlock with the natural mother for four months prior to the birth of this boy, has moved to dismiss the petition of the Adoption Service, on the ground that the petitioner failed to prove or plead that respondent father abandoned his infant son. The child was born out-of-wedlock and ten days after his birth, the natural mother voluntarily placed the child with the Commissioner of Social Services of the City of New York for temporary foster care. The father’s name does not appear on the birth certificate. The infant has remained in foster care with the same foster parents from November 1967 to this date. The infant believes that his foster family is his only family and has no knowledge or recall of his natural parents. At the time of the birth of this infant, respondent father was married to a woman other than the mother of this infant. Thereafter, respondent acknowledged paternity and agreed in writing that he would support his child. However, respondent’s salary has been insufficient to cover any support for many years and, in any event, he has made no such payments. The natural mother never contributed towards support. A New York Custody Lawyer said the court finds this long-term failure of support as evidence of abandonment as defined by Social Services Law § 371: “Abandoned child’ means a child who is abandoned or deserted in any place by both parents and left (c) without being visited or having payments made toward his support, for a period of at least six months, by his parent, guardian or other lawful custodian without good reason.’

A Staten Island Family Lawyer said a child never lived in the home of the natural parents, although the father claims that he objected to the natural mother’s refusal to bring the baby home. Curiously, respondent could not recall whether or not the natural mother actually resided with him after the birth. Respondent also testified that he did not inquire as to the whereabouts of the baby, although he claims to have visited the mother in the hospital during her confinement. In July 1968, the agency interviewed the father and, upon his insistence, permitted him to visit the child twice; once he was accompanied by the natural mother. Agency records of 1968 reflect that the father was desirous of custody of his child but that he had no plans or means to accomplish this purpose. Thus, the agency therefore determined on a plan for adoption.

Published on: November 8, 2013

Paternal Grandfather Petitions Court for Child Visitation

by Stephen Bilkis

Petitioner is the paternal grandfather of 2 infants. Respondent is the natural mother of the infants. The children’s father was killed in an accident.

A New York Family Lawyer said the paternal grandfather has petitioned this court for an order directing child visitation with the infants. An amended petition was filed thereafter. The natural mother has opposed the petition, having previously terminated visitation between the paternal grandfather and the children in June 1999.

A New York Custody Lawyer said that, respondent’s attorney filed a motion for dismissal, relying upon the a ruling of the Court where the United States Supreme Court held that a State of Washington statute governing nonparental child visitation infringed on the fundamental right of a parent to make a decision about the care, custody and control of the parent’s child. The Court deemed this a violation of the parental substantive due process guarantee contained in the Fourteenth Amendment. In opposition, petitioner’s attorney has argued that said case should be limited to its facts, and the statute involved in that case was overly broad and is distinguishable from the New York statute.

Published on: November 7, 2013

Court Decides Out of State Custody Arrangement

by Stephen Bilkis

The parties were married in California in March 1971, in which state their only issue was born in 1973. The parties were divorced in 1975 and under the decree the California court gave custody of the child to petitioner-respondent mother subject to reasonable rights of visitation. A New York Family Lawyer said that thereafter, the California court made an order, based upon a stipulation between the parents, modifying the visitation and support provisions of the divorce decree. The mother was permitted under the order to move to Syracuse, New York and maintain the child’s physical and legal custody, and the father was granted rescheduled visitation rights at his California residence and directed to pay all travel expenses of mother and child related to visitation. In September 1977 the mother returned the child to the father in California in compliance with the child visitation schedule and during the stay the father instituted a modification proceeding in the California court.

A New York Custody lawyer said that pending the hearing the court awarded custody of the child to the father and directed that the child not be removed from its jurisdiction. Thereafter, the California court made an order (1) adjudging that pending a further hearing in the matter, “California has jurisdiction to make a child custody determination and other orders under the Uniform Child Custody Jurisdiction Act”, (2) awarding the father legal and physical custody of the child with reasonable rights of child visitation to the mother in California “pending completion of the custody investigation”, (3) directing that neither party “shall remove the minor child from the jurisdiction” of the California court, and (4) directing a formal custody investigation by the San Mateo County Probation Department and that a written report be filed with the court, “all other issues being reserved for future determination”.

Although the mother claims that no formal hearing was ever held in California at which she could present witnesses and that no decision in writing was received by her from the California court, it is not disputed that she, the father and their attorneys appeared in the proceeding, at which time the father claims that the testimony of both parties was received and a probation interview of all the parties and others was conducted. A Nassau County Family Lawyer said the California court order recites the appearance of both parties in person and by their attorneys and the hearing of testimony. Further, the father claims that the probation report referred to in the order of the California court was completed and notice thereof sent to both attorneys.

Published on: November 6, 2013

Court Decides Custody in Relocation Case

by Stephen Bilkis

This Family action concerns custody of two children, ages 13 and 11. The current proceedings were commenced when the father filed a petition pursuant to Article 6 of the Family Court Act seeking a modification of an Order of Custody of the children after the mother relocated beyond the radius clause in their divorce stipulation. The mother subsequently filed her own petition.

A New York Family lawyer said that pursuant to a contented-to stipulation and the Judgment of Divorce the parties were divorced in 1998. As per the terms of their stipulation, the mother had sole custody of the two children and the father had certain rights of child visitation. One provision of their stipulation was that the mother could not relocate outside of a fifty (50) mile radius with the children. Each party became involved with other long-term partners and each has had other children. The mother and her paramour, have been together approximately nine years and have two children out of wedlock. The father is remarried and together they have one child. Each family unit lived in various areas of Queens and Long Island over the years until the mother moved, with her paramour, the subject children and her other two children to Pennsylvania. It is this move that has spurred the current litigation.

A New York Custody Lawyer said that in September 2006 the father filed a petition for custody of the two subject children. Despite being properly served with the custody petition, the mother did not appear in Court for over three court appearances. On the fourth court appearance, the mother did appear in Court that morning, but then did not return to Court that afternoon, despite being told to do so by the Hon. Judge’s court attorney. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to Court on the afternoon one day, and the inability of the Court to reach her by telephone, the Judge transferred custody of the subject children to the father. The father made arrangements for that order to be enforced in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. They have lived with him since that time.

Published on: November 5, 2013

Mother’s Failure to Appear Results in Custody being Awarded to the Father

by Stephen Bilkis

A couple entered into a stipulation after their divorce. As per the terms, the mother had the sole custody of their two children and the father had certain rights of visitation. A New York Family Lawyer said tne provision was that the mother could not relocate outside of a fifty mile radius with the children. Subsequently, each party became involved with other long-term partners and each has had other children. Each family unit lived in various areas over the years until the mother moved to Pennsylvania.

The father then filed a petition for child custody. Despite being properly served with the petition, the mother did not appear in court for over three court appearances. A New York Custody Lawyer said in the fourth court appearance, the mother did appear in court in the morning, but then did not return to court in the afternoon. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to court and the inability of the court to reach her by telephone, the judge transferred the custody of the children to the father. The father made arrangements for the order to be imposed in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. The children then lived with the father since that time.

During the trial each party called three witnesses. A Westchester County Family Lawyer said the father testified briefly about the terms of their divorce and about the mother’s multiple residences since then. According to the father’s testimony, the mother moved from one place to another before relocating to Pennsylvania. The transfer took place within a four year period of time. He testified he was given no advance notice of the said relocation to Pennsylvania which was over one hundred and forty miles from his home. The father further denies that he allowed the transfer. The mother then confirmed that she did not seek court’s approval about the relocation.

Published on: November 4, 2013

Court Decides Interstate Custody Dispute

by Stephen Bilkis

This is an application by the defendant husband to modify a judgment of divorce in order to grant him child custody of his two daughters. A New York Family Lawyer said the divorce decree awarded custody of the children to the wife based upon a separation agreement which was incorporated into the decree.

Shortly after the decree was entered, the parties entered into an addendum to the separation agreement whereby child custody was changed to the defendant husband and his obligation for child support payments accordingly deleted. However, the judgment of divorce was never modified to reflect these changes.

Child custody of both daughters continued in the husband without interruption until the summer of 1980. A New York Child Custody Lawyer said that during the first half of this period, the wife exercised regular visitation in Rochester, New York, but she moved to the State of Texas. Following her relocation, she kept in contact with the children by telephone and had extended periods of visitation with them in Texas, primarily during the children’s summer vacations.

Published on: November 3, 2013

Petitioner Seeks Support from Same Sex Partner

by Stephen Bilkis

This appeal presents the issue whether Family Court has subject matter jurisdiction to adjudicate a child support petition brought pursuant to the Uniform Interstate Family Support Act (UIFSA) by a biological parent seeking child support from her former same-sex partner. A New York Family Lawyer said it is held that Family Court possesses subject matter jurisdiction to hear such a petition.

A Manhattan Family Lawyer said the mother seeks child support from her same sex partner. According to the mother’s allegations, which must be taken as true for present purposes, the parties were involved in a romantic relationship in New York from 1989 through 1995, and cohabited during much, if not all, of that period. During the first year of their relationship, they planned to conceive and raise a child together, discussing, among other things, available methods of conception, child-rearing practices, and whether the child would be raised as a sibling of the same sex partner’s children from a prior relationship. In 1993, after many failed attempts, the mother became pregnant by artificial insemination. The same sex partner performed the procedure by which the mother was inseminated.

The mother gave birth to a son and her same sex partner was present at the delivery and cut the umbilical cord, and the parties shared the expenses associated with the conception and birth of the child. After the child’s birth, both parties participated in his care. However, four months after the child was born, the same sex partner ended the relationship. The mother, a Canadian citizen, moved into her parents’ residence in Montreal with the child. An attempted reconciliation in 1997 failed, although the same sex partner continued to provide the mother with gifts for the child and monetary contributions for the child’s care at unspecified times after the parties’ separation.

Published on: November 3, 2013

Court Looks at Jurisdictional Issue in Child Custody Proceeding

by Stephen Bilkis

A husband initially commenced a divorce proceeding in his place but the court declined to hear it since his children are United States citizens. The husband thereafter initiated the action again and an extensive decision of the court was issued on child custody and visitation.

A New York Family Lawyer said the parties have five children and at present, the four youngest children reside with the mother at a shelter, while the eldest child resides with the father at their marital residence. The parties are each in good health. An interpreter was also provided for the wife throughout the proceeding since she does not speak English. Even if the husband testified in English during the custody and visitation trial, he requested the use of an interpreter for the financial proceeding. The husband’s former attorney was relieved as counsel shortly after the decision of the matter was rendered. The attorney was then substituted.

During the party’s marriage, the husband worked in a construction industry which enabled him to financially support his family. Subsequently, the parties and their children traveled back to their hometown. The husband returned to the United States after two weeks, however, the wife and children were left at the husband’s parent’s house. Later, the wife and the youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family. The four eldest children remained with the husband’s parents. Thereafter, the marriage fractured.

Published on: November 1, 2013

Court Decides Whether a Writ of Habeas Corpus Confers to Subject Matter Jurisdiction

by Stephen Bilkis

The parties were married in California thereafter they resided together in Orange County, New York. A New York Family Lawyer said the respondent wife moved out of the marital residence. She was approximately seven months pregnant at the time. She filed a family offense petition in Orange County Family Court and was granted an ex parte Temporary Order of Protection against her petitioner husband. Through her attorney, she notified the Family Court that she was withdrawing the family offense petition which had not as yet been served upon her husband, and that she was leaving for the holidays with her family. That same day, she left New York and returned to her parents’ home in Alexandria Minnesota. She wrote to her husband she would be back with her parents. She did not return home to the marital residence after the holidays as she had previously indicated. The husband thereupon commenced an action for divorce by filing a Summons with Notice.

The infant child was born in Alexandria, Minnesota. A New York Child Custody Lawyer said the instant Writ of Habeas Corpus was issued by the court and was made returnable. The writ was adjourned on consent to February 17th, on which date both the counsel and the complainant husband appeared and oral argument was held. The court waived the appearance of the infant who was only several days old when the writ was issued, and had developed some health issues. In the meanwhile, the respondent wife filed a petition in District Court of Douglas County, Minnesota for legal and physical child custody, child support, and to schedule parenting time for the husband.

The issue of whether a petition for a writ of Habeas Corpus confers to the subject matter jurisdiction upon the Court to adjudicate the parties’ child custody dispute when the child is outside the State of New York when the petition was filed. A Bronx Family Lawyer said it is also an issue whether New York or Minnesota is the home state assuming the court does have subject matter jurisdiction.

Published on: October 31, 2013

Petitioner Seeks Support for Niece from Niece’s Father

by Stephen Bilkis

A New York Family Lawyer said the complainant woman seeks support for her niece against her niece’s father. The support petition was originally dismissed by a hearing examiner. But, by order of a judge, the order of dismissal was vacated. Consequently, the matter remanded back to the hearing examiner to enter a temporary order in accordance with the law and for further proceedings. The judge stayed the proceedings until such time the court will enter an order providing for temporary or permanent custody or guardianship of the child.

A New York Custody Lawyer said that following the custody hearing, a referee, in a very carefully considered decision, reluctantly recommends the child’s custody to her aunt. The matter was then referred to a judge, who confirmed the referee’s findings of fact and issued a final order of custody to the child’s aunt. The matter was then administratively assigned to the court to decide the issue of child support.

The parties appeared, at which time it unsuccessfully attempted to settle the case. A Brooklyn Family Lawyer said the court also pointed out that the law might prevent the re-trial of certain facts material to the issue. A hearing was eventually held. Based upon the evidence presented, the court declines to issue an order of child support against the man.