Custody

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.

Published on: April 9, 2013

Plaintiff Claims Fraud, Duress and Undue Influence in Divorce Case

by Stephen Bilkis

Plaintiff is the daughter of an immigrant with his first wife who had come to the country and prospered greatly. She is physically disabled. A New York Family Lawyer said when she was six months of age, she was a victim of poliomyelitis. She walked in braces for most of her life. When she was at her thirties, she was able to walk without braces after extensive medical treatments, including surgery, but still required the aid of two canes. At the age of 33, she met a man on a cruise ship whom she later married. They spent most of their time in France, with frequent visits to her parents at their home in New York. She had always been supported by her father even after she got married. She and her husband were entirely supported by her father.

Sometime in 1952, plaintiff got pregnant, and because of her physical condition, the child could only be delivered by caesarean section. During this time, her father, who was then sick with diabetes, sustained a coronary thrombosis, and her husband was also seriously ill, suffering from ulcers and requiring critical surgery, with no assurance of successful outcome. A New York Custody Lawyer said the medical bills of her husband, in the past and those to come, were shouldered by her father. She was supplied with many additional facilities and aids required by reason of her physical handicaps. The impending caesarean delivery was also supposed to be financed by her father, who was himself an ill man.

On 17 January 1952, when plaintiff was at her father’s apartment in Manhattan and while her father and his wife were in Florida, she signed a certain trust indenture, at which time she sprained her ankle. However, in the summer of 1951, plaintiff had apparently been presented with a trust indenture similar, in large part, to the one that she signed in 1952. This trust, too, made unusual provisions, which in fact were invalid, for any children she might have. This draft was discussed in great detail, even being corrected in several particulars by plaintiff. Most importantly, this draft also provided for the corpus to be eventually diverted to the children of plaintiff’s sister.

Published on: April 6, 2013

Court Determines if Subpoenas Were Defective

by Stephen Bilkis

In an action by the guardian of the person and property of an incompetent (ward), the founder and former president and chief executive officer of defendant and third-party plaintiff, a not-for-profit corporation formed in 1968 to deliver various health-related and other services to the poor in the South Bronx. A New York Family Lawyer said the suit includes claims for, among other things, breach of contract, an accounting of deferred compensation deposited into a trust account for the ward, liquidated damages, and breach of corporation’s obligation to pay the ward’s medical expenses and retirement benefits.

According to a New York Custody Lawyer, the corporation answered the complaint, denying the material allegations therein, and commenced a third-party action against the ward’s Family Trust, established by the members of his family, in which it alleges, inter alia, that the ward engaged in various acts of self-dealing and malfeasance, including improper maintenance of time records and misuse of corporate funds and credit cards for certain personal expenses for hotels, trips and gifts. According to the corporation, the incompetent previously obtained substantial payments and benefits from it and now seeks additional compensation based on unverified, inaccurate and unreliable time records, as well as unauthorized benefits and insurance policies for himself and others. The corporation also seeks damages and/or an offset against all amounts sought by plaintiff, plus a return of prior payments made to, or on behalf of, the ward during the period he breached his fiduciary duties, including disgorgement of assets transferred by the ward to the family trust.

Thereafter, the corporation served a total of 13 subpoenas duces tecum on nonparties, including 3 nonparty movants, seeking, inter alia, production of all documents concerning the ward’s relationship to the nonparty movants, any business trips taken by him on behalf of the nonparty movants, and the employment or equity interest of any member of his family in the nonparty movants. A Nassau County Family Lawyer said the subpoenas also sought all documents regarding any equity interest of the corporation’s former comptroller, and the payment of salary, benefits and dividends to him in connection with his relationship to the nonparty movants. Finally, the subpoenas sought all documents concerning any contracts between the nonparty movants and the corporation.

Published on: April 6, 2013

Court Decides Validity of Custody Order from Dominican Republic

by Stephen Bilkis

In this Family case, the subject children are the parties’ twin sons, born in the Dominican Republic. The father obtained a default order of custody there in 2002, an order appealed by the mother and affirmed by the Dominican court, a month after she had brought the boys to the United States. In quick succession, the Integrated Domestic Violence Court—which has jurisdiction over both criminal and Family law matters—received a criminal prosecution against the father based on his alleged threats to kill the mother; a writ of habeas corpus filed by the father under article 6 of the Family Court Act seeking enforcement of the Dominican custody order; a petition for custody of the two boys filed by the mother under article 6 of the Family Court Act; and a Family offense petition filed the same day by the mother under article 8 of the Family Court Act, alleging additional acts of domestic violence.

A Bronx County Family Attorney said that a law guardian assigned to represent the children reported an extensive history of domestic violence. Based upon this information, the court assumed temporary emergency jurisdiction under Domestic Relations Law § 76-c, and directed the Administration for Children’s Services to interview both parents and the children.

A New York Family Lawyer said the review of the documents of the Dominican proceedings confirms that the mother and father separated in 1998. At that time, pursuant to an agreement signed before assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the Family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately. The mother left the Dominican Republic in 1999, leaving the children with her mother, remarrying in 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents of the Distrito Nacional. The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.

Published on: April 5, 2013

Respondent Mother Found in Civil Contempt

by Stephen Bilkis

In this abuse and neglect case, the Administration for Children’s Services (ACS) filed child neglect petitions, pursuant to Family Court Act Article 10, against Respondent Mother in Bronx County Family Court. A New York Family Lawyer said the petitions alleged that a hospital social worker stated that the child, two years of age, had been in the hospital since January 2009, due to his failure-to-thrive and developmental delays, and that he had special needs, a G-tube, which was required for feeding, and a colostomy bag, and that he required exceptional care and special medical equipment. The social worker stated that Respondent Mother had taken the child on a visit and then refused to return him to the hospital. She did not have necessary medical supplies, nor had she completed the medical training to care for the child.

A Bronx Family Attorney said that when Respondent Mother returned the child to the hospital on July 2010, the child was “observed by hospital staff to be dehydrated with sunken eyes and dry lips. The subject child had also lost approximately 20 percent of his body weight.” The Petition also alleged that in January 2010 she attempted to remove the child from the hospital without permission and the police had to be called. In the seven months prior to June 2010, Respondent Mother had visited with the child only three times and had not called the hospital to inquire about him. The Petition further stated that the four children who resided with Respondent Mother did not have up-to-date immunizations. A New York Custody Lawyer said the Petition alleged that all of the children were neglected children or in imminent danger of becoming neglected.

Thereafter, an ACS Attorney and an ACS Caseworker appeared before the Court. The Caseworker stated that he had told Respondent Mother of that day’s court date and she told him she would be present. However, she did not appear. He informed the Court that he was not certain as to the whereabouts of the Respondent Mother and the subject children. ACS requested the Court to remand the children to the custody of the ACS Commissioner. The Court directed the ACS Caseworker to step outside to telephone Respondent Mother to inquire as to where she and the children were, and arrange to meet with her. The case was recalled, and the ACS Caseworker returned to court and said that he had spoken to Respondent Mother. She had refused to divulge her location and that of the children. He said he had scheduled a meeting with her at the ACS Brooklyn Field Office. Based on Respondent Mother’s refusal to disclose her whereabouts and that of the children, the Court issued a Warrant of Arrest for Respondent Mother, and ordered production of the children, but stayed execution of the Warrant, directing Respondent Mother to appear voluntarily in Court on July 2010, with the children. The Court granted ACS’s request to remand the child, who remained hospitalized, but denied ACS’s request to remand the four children who resided with Respondent Mother. The Court instructed the ACS Caseworker to inform Respondent Mother of its mandate that she appear in court, provide her with the stayed warrant, again request information as to where she and the subject children were residing, and inquire as to the children’s health care.

Published on: April 3, 2013

Court Determines Neglect within Meaning of Family Court Act

by Stephen Bilkis

On March 12, 1996, the accused mother brought her two-year-old daughter to North Central Bronx Hospital for a neurological examination and psychiatric evaluation on the recommendation of her pediatrician. The child suffered from febrile seizures, frequent ear infections and pica, an eating disorder involving ingestion of nonfood such as paint chips. The director of the hospital’s Child and Adolescent Crisis Intervention Program, which operates out of the emergency room, examined the child and observed the mother’s behavior while she was in the emergency room with her daughter. A New York Family Lawyer said he testified at the Family Court fact-finding hearing she was extremely irritable and hostile toward the child. Specifically, she called the child a bitch; repeatedly referred to the child as a bad child. The child deliberately engaged in disruptive behavior to irritate her mother, such as climbing on the stove, turning on the burners, and setting papers on fire. The mother said that her child barely slept at night, and that she in turn prevented the child from napping during the day to show her what it felt like to stay awake. While at the hospital, when the child indicated she had to go to the bathroom, the mother told her to go ahead and wet herself. The accused mother also said it was a miracle that she had not killed the child; that she had thoughts of killing herself; and that she had an insurance policy that would take care of her other children.

The hospital director observed that, while in the emergency room, the child stayed away from her mother, running and climbing everywhere but the mother made no effort to supervise or restrain her. Based on his observations and examination of the child, he believed that Megan was suffering from various language disorders and hearing impairment, as well as severe hyper-activity. A New York Custody Lawyer said based on the mother’s statement that the child ate lipstick, nail polish and powder, he suspected that she might also have lead poisoning. He informed the mother that her child needed certain assessments or tests, and explained that some of her disruptive behavior might be due to her physical ailments. She denied that the child suffered from any of the physical ailments enumerated and initially refused to consent to any of the tests, insisting that the child did not need them.

The hospital director further testified that the accused mother said three times that she had a weapon on her and made specific threats toward him and other hospital staff. He and the staff became so concerned by her behavior and threats that they were moved to contact the adult psychiatric emergency room to have respondent examined.