Custody

Published on: May 28, 2013

Court Overturns Order for Protection

by Stephen Bilkis

Petitioner filed a family offense petition in wherein she alleged in pertinent part that respondent physically assaulted her on numerous occasions and threatened to shoot her. A New York Family Lawyer said although served with a copy of the summons and petition, respondent did not appear on the return date of the petition. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the judge entered a final order of protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against petitioner mother and the children.

A Queens County Order of Protection Attorney said that respondent father filed a petition seeking visitation with the children. The court dismissed the petition without prejudice as neither party appeared. There is no indication that the father ever served the mother with the petition. This is how matters remained until the Administration for Children’s Services filed neglect petitions against the mother alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.

Later, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, petitioner mother was ordered to refrain from making disparaging comments against respondent, who was not a respondent in the neglect proceedings.

Published on: May 27, 2013

Court Decides Jurisdiction in Custody Case

by Stephen Bilkis

Petitioner father and respondent mother are the parents of the four subject children, and have resided together in the Bronx and Albany. In 2005, respondent and the children were living in Albany. A New York Family Lawyer said the petitioner lived in the Bronx at that time, and visited the children in Albany on weekends. Thereafter, respondent filed a petition for custody of the children in Albany County Family Court. After being referred to mediation, the parties reached an agreement that was incorporated into an Albany Family Court order providing in pertinent part, that the parties would have joint custody of the minor children. The children would reside with the respondent during the school year. Since she was relocating to North Carolina, the order directed her to notify petitioner of school activities and provide a copy of the school calendar at the beginning of the school year. A New York Custody Lawyer said the children would reside with the petitioner during any school breaks lasting one week or more, and during the summer months.

A Bronx County Family Lawyer said that respondent and the children moved to North Carolina. Petitioner immediately inquired about the name of the school that the school-age children would be attending. Respondent was evasive, promising to provide that information. She never did. Unbeknownst to petitioner, prior to her relocation, respondent filed an application to open a religious home school in North Carolina.

Additionally, respondent refused to provide information to petitioner regarding other aspects of the children’s living situation, including the identities of other persons living in the home.

Published on: April 17, 2013

Birth Mother Attempts to Reverse Adoption

by Stephen Bilkis

A pregnant woman, who was then 20 years of age, unmarried and at her sixth month of pregnancy, sought her obstetrician’s assistance in placing her forthcoming child for adoption. The doctor, the woman’s obstetrician then contacted an interested young childless couple. A New York Family Lawyer said as a result, preliminary arrangements for the adoption commenced. The woman, who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of her pregnancy.

On 9 December 1981, the woman gave birth to a son. On 11 December 1981, the woman retained a lawyer. On 20 January 1982, she then signed an extra-judicial consent form for her son’s adoption in order to permit the adoptive parents to take possession of the child. The consent form states on its face that it shall become irrevocable 30 days after commencement of the child adoption proceeding unless revoked within that time, pursuant to the Domestic Relations Law.

A New York Custody Lawyer said on 24 March 1982, the child adoption proceeding was instituted in the Surrogate’s Court of Westchester County. However, six days later, the woman or the natural mother filed a notice of revocation of consent which the adoptive parents immediately resisted. The Acting Surrogate conducted a hearing to determine whether the revocation was in the child’s best interest. In her memorandum to the trial court, the natural mother urged that section 115-b of the Domestic Relations Law be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood. During the hearing, the parties focused on best interests, an issue which consumed nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contained no claim by the natural mother that she was misled by the consent form. Thus, the court denied the natural mother’s application to withdraw her consent, finding that revocation would not serve the best interests of the child. While the Acting Surrogate recognized that a lay person could easily infer from the language of the form that the consent could be revoked and upon adoption revocation the parties would be restored to a status quo position, it found that the natural mother had not been misled by the form, that she had understood the consequences of her act and that she had been represented by competent counsel, and therefore had not been deprived of due process.

Published on: April 16, 2013

Court Decides Jurisdiction Issue in Family Law Case

by Stephen Bilkis

This original application for a writ of prohibition arises out of the new law (L.1978, c. 481), imposing criminal responsibility on juvenile offenders for certain crimes. Sodomy in the first degree is one such crime (PL § 30.00(2)). A Bronx Family Lawyer said that, petitioner, a 15 year old juvenile offender (PL § 10.00(18)), stands indicted on four counts of sodomy in the first degree. He was arrested on October 4, 1978, and was arraigned in the Bronx Criminal Court the following day. By reason of the intervening weekend and the Jewish holy days which followed thereafter, the case was adjourned to October 11, 1978. A Bronx Family Lawyer said that, on that day, petitioner made request for a preliminary hearing and for a hearing seeking removal of the charges to the Family Court. In response to the application, the prosecutor informed the court that a true bill had been voted by the Grand Jury on October 10, 1978, although, as a result of time pressures, the indictment had not yet been handed down. The judge presiding denied the application on the ground that he had been divested of jurisdiction by the action of the Grand Jury. He adjourned the proceeding until October 13, 1978 in order to afford the District Attorney’s office time to file the indictment. In fact, the indictment was filed the next day, and on October 13, 1978, the case was transferred to the Supreme Court.

A New York Family Lawyer said that, petitioner moved before the Justice for multiple relief, including a dismissal of the indictment under CPL § 210.20(h) upon the ground that “there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”. The specific basis urged was that petitioner had been deprived of the right to a removal hearing. A Bronx Family Lawyer said that, the Justice denied the application upon the ground that the “Grand Jury acted within its own authority which cannot be diminished by any previous court hearing or lack of such hearing”. A motion for leave to reargue was denied. Thereupon, this proceeding was brought.

The issue in this case is whether the indictment of petitioner should be dismissed on the ground that there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.

Published on: April 15, 2013

Court Decides if Child Protective Services are Immune from Liability

by Stephen Bilkis

Plaintiffs are siblings, born on December 29, 1976 and January 16, 1980, respectively. They were removed from the custody of their natural parents in February 1982 after it was determined that the five-year-old child had contracted gonorrhea of the throat. The children were first placed with defendant Society and, after approximately two months, were transferred to the custody of defendant Agency. A New York Family Lawyer said that, at her deposition, the five-year-old child testified, inter alia, that in the first foster home, she was kept in her room “hour after hour.” In the second home, she was beaten and pushed into a glass, cutting her wrist; the foster mother told the five-year-old child to say that she had fallen off a bicycle. The third foster parent, pulled her hair, struck her and routinely confined her to a room; a male child in the same home fondled her, at least once, between the legs. The said child was then between five and seven years old. In another home on Long Island, the foster parent was not abusive, but the older children used to have “oral sex parties” with the said child. She was ultimately returned to her mother’s home, where she was subjected to constant physical abuse by her mother and stepfather.

A New York Custody Lawyer said that, the complaint, dated September 5, 1985, alleges that plaintiffs were subjected to physical and sexual abuse, both within and outside the foster care system. The first and second causes of action allege that the City of New York and its agencies, the Human Resources Administration and the Department of Social Services (collectively, the City), failed to act on reports of abuse and neglect received since January 1977 by taking timely and appropriate action to remove, respectively, plaintiff Debbie M. and plaintiff Sean M. from the custody of their biological parents. The third and fourth causes of action allege that from the time they were placed in foster care in February 1982 until March 1984, plaintiffs were subjected to abuse and neglect in a series of foster homes and were denied adequate medical care. It is further alleged that after Family Court returned them to their mother’s home, plaintiffs were subjected to further abuse and neglect. The complaint asserts that defendants breached their duties to investigate complaints of abuse and neglect, to provide a clean and safe environment for the children and to furnish appropriate medical treatment.

A Queens Family Lawyer said that, this litigation has a long and tortuous history. Plaintiffs filed a bill of particulars in 1985 and a further bill in 1986. The City filed a bill of particulars in 1994, and defendant Agency filed its bill of particulars in 2000. It appears that no depositions were conducted until 1991 and that plaintiffs were not deposed until 1999. The instant motions to dismiss the complaint were interposed in March 2002. All defendants contended that they were subject to statutory immunity pursuant to Social Services Law § 419. Defendant Agency also sought dismissal on two additional grounds: that plaintiffs failed to comply with discovery demands (CPLR 3124, 3126), particularly with respect to deposition testimony, and that the evidence failed to demonstrate LWS knew or should have known that the foster families with whom it placed plaintiffs were unfit. In addition to statutory immunity, the City maintained that it was immune from liability under New York common law.

Published on: April 14, 2013

Maternal Aunt Seeks to Adopt Child

by Stephen Bilkis

A New York Family Lawyer said that, in this adoption proceeding pursuant to Article 7 of the Domestic Relations Law, authorized child care agency (Agency), by motion filed June 30, 2011, moves the court to dismiss the private-placement adoption petition filed by pursuant to Domestic Relations Law § 115. Petitioner is the Maternal Aunt of the subject child, a foster child legally freed for adoption, who is in the lawful care and custody of the Agency and the Administration for Children’s Services (ACS).

A New York Custody Lawyer said that, the Agency asserts in its motion that the Maternal Aunt improperly filed the petition as a private-placement adoption. The Agency takes the position that the only path to the adoption of a foster child such as the subject child is an adoption from an authorized agency, and the Agency’s consent to such an adoption is required. The Agency states that it will not consent to the adoption of the subject child by the Maternal Aunt, and, therefore, the court is without jurisdiction to hear the Maternal Aunt’s petition. The Agency states that the power of the court is limited to finalizing or denying the adoption of the subject child pursuant to the agency adoption petition filed by the Foster Mother. The Agency further contends that should the court proceed to hold a hearing as to the adoption petition filed by the Maternal Aunt, any ruling made by the court would be without force and effect since the court does not have jurisdiction over the Maternal Aunt’s petition, and only the Agency can determine who may file a petition for adoption of this child.

A Nassau County Family Lawyer said that, in the alternative, the Agency moves to dismiss the adoption petition filed by the Maternal Aunt, as jurisdictionally defective in that it lacks the following statutory requirements: the marital status of the Maternal Aunt, certification of the Maternal Aunt as a qualified adoptive parent as required by Domestic Relations Law § 115(1)(b), and compliance with the provisions of Social Services Law § 374–a, the Interstate Compact on the Placement of Children, which sets forth procedures that must be followed should Y. be placed with the Maternal Aunt, who resides in the State of Florida.

Published on: April 13, 2013

Court Rules on Adoption Proceeding

by Stephen Bilkis

A New York Family Lawyer said that, the family of the now-15 year old child has been involved with the child welfare system since 1998, when child abuse proceedings were brought against her parents. As best can be told, her father was never involved in her life thereafter. Her mother died in 2001. After living with different relatives for a time until 2003, the child has been in numerous non-kinship foster homes. Since 2005, the child has been placed in homes with the Home foster care agency. In May 2007, the child found a measure of stability by living in the foster boarding home where she remains until this day. During these past four years, the “permanency goal” of the child has been adoption by, and numerous permanency hearings and other oversight has been conducted by the Courts, both before me, and various Referees, during which the St. Dominic’s Home participated.

A New York Custody Lawyer it was not until April 2011 that an adoption petition, including a “Statement of Readiness” by the attorney, was filed on behalf of Ms. C.-S, and eventually calendared before me, with a proposed finalization date of June 2, 2011. Because various paperwork was missing, and more important, because the record revealed that there were two outstanding Orders of Guardianship for different relatives, which needed to be addressed before the adoption could be finalized, the adoption could not go forward and was adjourned several times. Throughout this period, my court attorney was in constant contact with the adoptive mother’s attorney, offering guidance on the situation and assuring that I would promptly proceed with the adoption and also expeditiously hear and address any ancillary proceedings which might need to be filed. No steps were taken to address the guardianship issues.

A Bronx Family Lawyer said that, instead, on September 1, 2011, the foster care agency filed a motion, returnable October 12, 2011, claiming that the agency’s interest was expediting permanency for the child, and complaining that this Court was unnecessarily delaying such “permanency”. The agency seeks intervenor status, and an order granting the adoption petition notwithstanding the previous guardianship orders.

Published on: April 12, 2013

Petitioner Moves for a Change in Child Custody

by Stephen Bilkis

The mother of this child petitioned Supreme Court, Special Term, and upon this basis an order was issued requiring the father to show cause why the infant daughter of the parties should not be returned to the mother’s custody. A New York Family Lawyer said that, on October 2, 1961, the parties entered into a separation agreement by which this child’s custody was placed with the mother subject to visitation by father. On October 13, 1961 the Inferior Court, Geneva, State of Alabama, incorporated this custody agreement in its decree divorcing these parents at the suit of the mother. At that time the child was four years old, the only issue of this marriage.

A Bronx Child Custody Lawyer said that, the Special Term of the Supreme Court transferred custody of this child from father to mother on the basis of opposing affidavits, and on default of father, but its order of November 17, 1967 was reversed and remanded to the Special Term for a hearing. A New York Custody Lawyer said the Special Term of the Supreme Court then referred the proceeding to the Family Court under Section 651 of the Family Court Act.

The issues here concern the procedures and criteria and remedy to resolve child custody and visitation affecting this child, as between her divorced parents.

Published on: April 11, 2013

Court Decides Criminal Case Regarding Child Neglect

by Stephen Bilkis

In this criminal case, one of the allegations in the neglect proceeding involves defendant’s purported violation of an interim order of protection issued by a Family Court judge. In its earlier decision dated June 15, 2012, this Court ruled, inter alia, that the claim of double jeopardy had not ripened because the Family Court hearing was, and in fact still is, ongoing, and no punitive sanction has been imposed. A New York Family Lawyer said that, the Court denies the motion to renew, but grants the motion for re-argument. Upon re-argument, based on the specific facts of this case and analysis of federal constitutional principles, the Court reverses its original ruling to the extent of finding this prosecution is barred from proceeding as a matter of federal constitutional law.

A Bronx Family Lawyer said that, in the criminal matter, the trial court denied defendant’s motion to dismiss the indictment on double jeopardy grounds. Defendant was subsequently convicted in the criminal action on each of the five counts of criminal contempt and aggravated harassment, following a jury trial. A New York Custody Lawyer said the Court of Appeals found that “because the same acts violated both orders, it would be impossible for defendant to be guilty of first degree criminal contempt for violating the City Court order of protection without concomitantly being guilty of violating the Family Court order of protection.” Thus, the Court held that the criminal contempt prosecution was barred because of the previous conviction “under Family Court Act article 8.”

A Bronx Order of Protection Lawyer said that, on October 7, 2010, an interim order of protection was issued under Section 1029 of the Family Court Act in connection with a civil child neglect proceeding brought under Article 10 of that act. Five additional interim orders of protection were issued between that date and August 17, 2011. A subsequent neglect petition, a civil case also brought under Article 10, alleges, inter alia, defendant violated those interim orders of protection based on conduct which is said to have occurred on January 4, 2011. The criminal case contains a single count alleging a violation of an order of protection issued in Supreme Court, Bronx County on May 26, 2011. Thus, one of the allegations in the civil pleading involves conduct which allegedly took place five months prior to the issuance of the order of protection defendant is accused of violating in this matter.

Published on: April 10, 2013

Court Determines Whether Legal Guardians Acted in Good Faith

by Stephen Bilkis

Sometime in August 1987, a child (the subject child) who was then 5 years of age was brought by her mother, the plaintiff, to a certain hospital with complaints of constipation and occasional bloody stools. Defendant A, a doctor, examined her in the presence of another doctor, B, and suspected sexual abuse. A New York Family Lawyer said this was then reported to the Bureau of Child Welfare. Thereafter, the child was taken from her parents’ custody, remained in the hospital for two weeks, and was ultimately placed in the care of her maternal grandmother.

Consequently, the City filed a sexual abuse petition in Family Court of Bronx County. The Legal Aid Society, and its staff attorneys (the Legal Aid defendants), were assigned as the law guardian for the child. The parents denied involvement in any sexual abuse. On 15 December 1987, the court held a fact finding hearing. The law guardian took the position that the physical findings were inconsistent with the explanations offered by the parents and were consistent with sexual abuse of the child. The court found, by a preponderance of the credible evidence, that the child was sexually abused. On 23 June 1986, after a dispositional hearing, the court placed the child with the Department of Social Services for 18 months. Eventually the child was returned to her parents’ custody.

A New York Custody Lawyer said the parents sued, in their own right and as the parents and natural guardians of the subject child. On the first cause of action, on behalf of the subject child, the parents alleged legal and medical malpractice. They claimed that the Legal Aid defendants should have called C, also a doctor at the hospital, to testify at the fact finding hearing; that C had dealt with the parties and had concluded, without a physical examination of the child, that there was no sexual abuse; that C did testify at the dispositional hearing; that the hospital and its doctors committed medical malpractice by misdiagnosing the case and by submitting an erroneous report of sexual abuse; that the City and its attorneys, the defendants, prosecuted the matter in the Family Court to which they too failed to subpoena C. On the second cause of action, plaintiff mother filed it against her attorney in the Family Court, D. On the third cause of action, plaintiff father filed it against his attorney in the Family Court, E.