Custody

Published on: September 23, 2013

Court Decides on Case Involving Laches

by Stephen Bilkis

This Family Court Article 5 paternity proceeding was commenced by the Suffolk County Department of Social Services on behalf of petitioner against respondent. A Suffolk Family Lawyer said that, the trial was commenced and concluded on June 2, 1981. A New York Family Lawyer said at the outset, the respondent orally raised two defenses, to wit: that the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child. A Suffolk Child Support Lawyer said that, these defenses were denied for the reasons set forth on the record. Upon the completion of testimony, the respondent requested, was granted permission and submitted a Post Trial Memorandum which re-raised the identical defenses alluded to heretofore. The County Attorney offered no further submission but relied on the points raised at trial.

A New York Custody Lawyer said the issue in this case is whether the petition should be dismissed because of the petitioner’s laches and that such dismissal was in the best interest of the child.

The court said that it will reconsider the defenses first. With respect to respondent’s contention that the instant proceeding must be dismissed due to the existence of laches attributable to the petitioner, the interposing of such a defense does not lie in an action brought pursuant to Article 5 of the Family Court Act. While the inexcusable failure to promptly assert a claim may, at times, operates as a bar to relief, such failure constitutes a barrier only in equitable actions. It is a time honored legal maxim that the doctrine of laches is one peculiar to actions in equity; laches does not operate to bar actions at law that are commenced within the applicable limitation period. A paternity proceeding, unknown at common law, is a creature of statute and clearly an action at law therefore, it cannot be affected by laches. The action is either timely or untimely pursuant to statute.

Published on: September 22, 2013

Court Discusses Cost of Living Adjustment

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 9, 2009, which denied his objections to an order of the same court, dated September 24, 2009, which, upon treating his letter dated June 29, 2009, as objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, found that his objections were untimely, and denied his objections with prejudice.

A New York Family Lawyer said that, in the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the Suffolk County Support Collections Unit (hereinafter the SCU) issued a cost-of-living adjustment (hereinafter COLA) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009.

A New York Child Custody Lawyer said that, after a hearing to determine the timeliness of the father’s objections, the Support Magistrate, in an order dated September 24, 2009, denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 21, 2013

Petitioner Objects to Cost of Living Adjustment

by Stephen Bilkis

This case stemmed from a divorce action between parties dated May 5, 2005. After the trial, the Family Court ordered a judgment of divorce. A New York Custody Lawyer said the judgment also set forth the support obligations of the father. The father made objections to the order of the court but the same were denied. In his letter dated June 29, 2009, he also made objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, the court found that his objections were untimely, and denied his objections with prejudice. Later on, the father filed an appeal assailing the order of the Family Court, particularly its child support provision.

In the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the support collections unit (SCU for brevity) issued a cost-of-living adjustment (COLA for brevity) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009. Later on, the father admitted that he had previously received the notice of the COLA instructions at his residence, one month prior to the date of the COLA order.

A New York Custody Lawyer said the Support Magistrate denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 20, 2013

Court Reviews Child Support Standards

by Stephen Bilkis

In this case, an action for divorce was filed by plaintiff against his spouse before the Family Court, Suffolk County. After trial, the Family Court ordered a judgment of divorce with a stipulation of settlement. The said stipulation contains child support and maintenance provisions.

Later, a New York Family Lawyer said the defendant filed a motion to dismiss the complaint and asking to impose a sanction and for an award of an attorney’s fee before the Supreme Court, Suffolk County. The motion was granted by the Supreme Court saying that plaintiff was already judicially estopped from arguing that certain provisions in the parties’ judgment of divorce and stipulation of settlement should be set aside. With this, plaintiff filed an appeal with the Appellate Division of the Supreme Court of New York.

After careful consideration of the facts of the case, the Appellate Court ruled in favor of the plaintiff and ordered that the order of the Supreme Court, Suffolk County be modified.

Published on: September 19, 2013

Court Discusses Section 1055 of the Family Law Act

by Stephen Bilkis

It was on August 11, 1998, when a child was found abandoned by police officers in a bedroom of the home of respondent, (the child’s mother). The nine-year-old child had been bound with electrical cords, hooded with a pillowcase tied around his neck, and gagged with a sock stuffed in his mouth and secured by electrical tape wrapped around his face. A New York Family Lawyer said the child’s arms and legs had been tied so that he was forced to remain standing in a cruciform position; he was otherwise naked, and loud music was left playing in the room. The door to the room was taped shut. When discovered, the child had been tied up since August 7, 1998; he was found to have sustained several old and healing cuts and bruises, whip marks, and numerous scars and lacerations.

The Department of Social Services (hereinafter Department) petitioned against respondents, for a determination that the children are abused children. During the trial, the court issued a Fact-Finding Order and an accompanying decision on July 7, 1999. The court determined the facts recounted above and found that petitioner had adequately proven that the child was the victim of abuse perpetuated by respondent caretakers.

As defined by Family Court Act section 1012 (e) (i) and (ii). The said abuse comprised at least four occasions when the child was tied up and numerous occasions when he was whipped and beaten. The court further concluded that petitioner also met the higher burden of proving by clear and convincing evidence that the respondent repeatedly and severely abused the child. Therefore, a New York Child Custody Lawyer said in addition to the finding of abuse as to both respondents, the court found based upon clear and convincing evidence that the said child was the victim of severe and repeated abuse inflicted by respondent. Hence, an Order of Protection was issued by the court.

Published on: September 18, 2013

Court Discusses Responsibilities Under Family Court Act

by Stephen Bilkis

Petitioner is an 18-year old single female attending in a community college on a work-study program. Her mother died on September 2, 1961. A New York Family Lawyer said thereafter, her father married respondent on August 9, 1962 when petitioner was three years of age. Two female children, petitioner’s half sisters, were born of this union. Her father died on March 10, 1975. Petitioner continued to reside in respondent’s home until June 15, 1977.

In June of 1977, petitioner left respondent’s residence to reside with relatives and now seeks support from the respondent pursuant to Section 415 of Article 4 of the Family Court Act. A New York Child Custody Lawyer said the petitioner has limited income and is imminently liable to go on public assistance and in fact presently receiving medicaid benefits from the Department of Social Services. Petitioner cited two (2) similar cases in support of her contention that the death of a parent does not conclude the stepparent relationship because death is an act of God and is therefore not a willful act. In contrast, the petitioner further argues, a divorce does end this relationship since there is an “intent to terminate the living tendrils of the marriage.”

The question presented in this case by the petitioner is whether a stepparent, whose marriage has been terminated by the death of the child’s natural parent, is legally responsible for the support of the stepchild.

Published on: September 17, 2013

Court Discusses Order for Protection

by Stephen Bilkis

In an action for divorce, a New York Family Lawyer said the wife has made two applications for orders directing her husband to leave their marital home, to provide support and maintenance for her and to restrain him from removing furnishings, furniture and personal possessions from the residence.

When the motions were originally submitted, the court discovered that an application for an order of protection was being sent to the court for determination. An inquiry to the court confirmed the said information. In view of the fact that the actions concerned relief associated with the family court proceeding, the court referred them to the family court for hearing and decision.

Based on records, referral of the motions was not made without authority nor was it intended to enlarge the court’s jurisdiction. The family court has original jurisdiction over support proceedings and the applications for support and custody in matrimonial matters.

Published on: September 16, 2013

Mother Charged with Endangering the Welfare of a Child

by Stephen Bilkis

A New York Family Lawyer said a woman filed an action for various forms of relief. In arriving at the instant decision, the court received and considered the woman’s motion with exhibits, the complainant’s affirmation in opposition with exhibits and the woman’s reply confirmation.

The complainant permitted to an in camera review by the court of the minutes of the grand jury proceeding and have provided a copy of the minutes and the grand jury exhibits to the court for review. The complainant provided the woman with a response to the requests for discovery, bill of particular materials and consent to hearings. The complaint also opposes the motion in all other respects.

The court also examined the minutes of the grand jury presentation, and it is the decision of the court if the evidence presented is legally sufficient to support the charges. Moreover, a New York Custody Lawyer said the grand jury was adequately instructed on the law and the proceeding.

Published on: September 15, 2013

Stepmother Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said the issue before the Court is whether a biological mother — who continues to pay child support but agreed to an order permanently suspending her visitation — has abandoned her children rendering her consent unnecessary to their adoption by their step-mother. By amended petitions filed, the petitioner step-mother seeks to adopt the children. By motion filed, the Respondent biological mother moves for summary judgment dismissing the petitions as she does not consent to the adoptions. On April 5, 2007 the Court granted the Respondent’s motion for summary judgment and dismissed the petitions. A written order was entered and mailed to the parties. This written decision memorializes the oral decision issued from the Bench.

The two children unfortunately have been entangled with the Family Court proceedings since early childhood. In 2000, the Respondent was found to have neglected her children. In 2001, there was a custodial dispute between the children’s father and the Respondent resulting in an order of joint custody with primary physical residency with the Father. A New York Child Custody Lawyer said the proceedings were then transferred to the Integrated Domestic Violence Part resulting in the current custodial consent order which grants sole custody of the children to Father and suspends the Respondent’s visitation, additionally ordering that the Respondent shall not seek visitation. The order also states that the Respondent and the Father must share access to the children’s records; and it is also ordered that the Father must keep the Respondent updated regarding issues with the children and provide the Respondent with the children’s school photographs. The Respondent also was ordered to pay $50.00 monthly in child support. The Respondent has consistently paid child support. The Father both has accepted the monthly support payments and has never petitioned for a modification of the Respondent’s support obligation. The children live with the Father and the Petitioner. The Father supports the Petitioner’s applications to adopt the children. The Petitioner contends that she does not need the Respondent’s consent to the adoptions because the Respondent has abandoned the children.

Petitioner can proceed with the adoptions only if she either obtains the Respondent’s consent or can prove that the Respondent has evinced an intent to forgo her parental rights and obligations as manifested by her failure for a period of six months to visit the children and communicate with the children or person having legal custody of the child, although able to do so.

Published on: September 14, 2013

Petitioner and New Husband Seek to Adopt Child

by Stephen Bilkis

The petitioner mother and her husband filed a petition for adoption, seeking the court’s approval of the proposed adoption of a child. The petitioner is the natural mother of the child and her husband seeks to adopt the child. The natural father of the child was incarcerated at the time of the filing of the adoption petition. He was released from a New York State correctional facility and he was personally served with the notice of proposed adoption at the home of his parents.

A New York Family Lawyer said the petitioner mother filed a petition to modify a prior order of visitation, and order to show cause, seeking to suspend all father’s rights of visitation, pending the proceedings on the separate but related petition for adoption. The order to show cause, suspending visitation until further order of the court was signed.

The respondent father filed a motion to dismiss the visitation modification petition, and oral argument was heard. Decision was reserved, and the court issued a written decision denying the respondent father’s motion to dismiss. A hearing on the adoption petition commenced and after five days of testimony, the hearing concluded at which time the court reserved the decision. The decision shall serve as the order of the court.