Queens

Published on: March 31, 2015

Respondent Seeks to Dismiss Proceedings

by Stephen Bilkis

A New York Family Lawyer said that, by motion dated January 5, 2009, respondent seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession.

A Nassau Divorce Lawyer said that, according to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner’s daughter-in-law and was married to petitioner’s son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a “beach cottage” located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land.

Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent’s husband moved out. Respondent’s husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

Published on: March 22, 2015

Court Discusses the Meaning of “Household” Under the Family Court Act

by Stephen Bilkis

The defendant was charged by an information sworn to by the complainant with a violation of Section 242, subd. 3 of the Penal Law, in other words, with a second degree assault. Upon arraignment, he was represented by counsel, namely the office of the Public Defender of the County of Nassau. His lawyer asked that the matter be transferred to the Family Court of this County to be there treated as a family offense.

In support of his application, counsel states that the complainant, and the defendant, has lived together at 36 Carney Street, Glen Cove, New York, for a period of time, that they have their shared the same apartment and that in general, they have held themselves out to be man and wife. Defendant’s counsel further informed the Court that the complainant and the defendant have never been married to each other by either a ceremonial service or a civil one, nor has a marriage license ever been issued to them.

None the less, it is asserted that the circumstances under which the complainant and defendant live with each other are such as to constitute them a household within the meaning of Section 812 of the Family Court Act. Since the institution of the Family Court Act in 1962, a number of cases have been heard in this County construing the ambit of Section 812 in situations approximately similar to the one outlined above.

Published on: February 17, 2015

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

In three related proceedings pursuant to Social Services Law § 384–b and Family Court Act article 6 to terminate parental rights on the ground of permanent neglect, the mother appeals from three orders of disposition of the Family Court, Nassau County (Dane, J.)(one as to each child), all dated December 22, 2010, which, upon a fact-finding order of the same court dated January 8, 2010, made after a fact-finding hearing, finding that she permanently neglected the subject children, terminated her parental rights and transferred child custody and guardianship of the subject children to the Commissioner of the Nassau County Department of Social Services for the purpose of adoption. The appeal from the order of disposition brings up for review the fact-finding order.

On the contrary to the mother’s contention, the Family Court properly found that she permanently neglected the subject children Shanea R. and Kyshawn F. The petitioner established by clear and convincing evidence that it made diligent efforts to assist the mother in maintaining contact with the children and planning for the children’s future ( see [95 A.D.3d 885]Matter of Star Leslie W., 63 N.Y.2d 136, 142, 481 N.Y.S.2d 26, 470 N.E.2d 824;Matter of Sheila G., 61 N.Y.2d 368, 373, 474 N.Y.S.2d 421, 462 N.E.2d 1139). These efforts included repeated referrals of the mother to drug treatment programs, the monitoring of her progress in these programs, repeated advice to the mother that she must attend and complete the drug treatment programs, and the scheduling of regular visits between her and the children (see Matter of Jada Ta–Toneyia L., 66 A.D.3d 901, 902, 886 N.Y.S.2d 640;Matter of Deajah Shabri T., 44 A.D.3d 1060 1061, 844 N.Y.S.2d 410;Matter of Distiny Angelina N., 18 A.D.3d 755, 756, 795 N.Y.S.2d 685).

Published on: October 25, 2014

Court Listens to Two Child Neglect Proceedings

by Stephen Bilkis

A New York Family Lawyer said that in two related child neglect proceedings pursuant to Family Court Act, the appellant father appeals from so much of an order of the Family Court as denied his motion to vacate a fact-finding order of the same court, made upon his default in appearing at a fact-finding hearing, finding that he had neglected the subject children, and, in effect, to vacate an order of disposition of the same court, which, upon the fact-finding order, directed the release of the subject children to the mother’s custody and directed him to complete, inter alia, domestic violence counseling.

A New York Divorce Lawyer said the order dated July 7, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant’s motion to vacate the fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-finding order and order of disposition are vacated, and the matter is remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it is further, ordered that, upon remittal, the Family Court shall forthwith make an order with regard to the custody of the subject children pending the new hearing or hearings and determination.

A Queens Family Lawyer said these proceedings were commenced pursuant to Family Court Act upon the filing of two petitions, in which it was alleged that the appellant father was a person legally responsible for the care of two female children, and that these children were neglected by him. The petitions were based on a single incident, in which it was alleged that the appellant, among other things, grabbed one of the subject children on the side of her neck.

Published on: October 11, 2014

Father Seeks to Modify Restraining Order Against Him

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 8 and Domestic Relations Law article 5-A (Uniform Child Custody Jurisdiction and Enforcement Act), the father appeals from an order of the Family Court, Nassau County, which, without a hearing, dismissed without prejudice his petition, in effect, for a modification of an order of protection of the Superior Court of the State of California, Alameda County, which, after a hearing, inter alia, directed him to stay away from the mother and the parties’ three children for a period of five years.

A Nassau County Family lawyer said that the mother and the father lived together in New York for approximately 14 years, without marrying. They have two daughters and a son. Thereafter, the mother took the children to California, allegedly to escape physical and emotional abuse by the father. Later on, the father filed a petition in Family Court, Nassau County, seeking custody of the parties’ two daughters. The parties’ teenage son returned to New York to reside with the father.

Thereafter, a New York Divorce Lawyer said the mother filed a “request for order” in the Superior Court of California, Alameda County (hereinafter the California court), seeking an order of protection against the father, and in favor of herself and the three children. In the California court, she also filed a request for custody of the children. In her papers, the mother informed the California court of the pending custody proceeding in New York. Nonetheless, the California court failed to communicate with the Family Court.

Published on: September 27, 2014

Father Claims Ex-Wife Willfully Prevented him from Exercising Visitation Rights

by Stephen Bilkis

A New York Family Lawyer said a man sought an order to have his former wife held in contempt for her willful and deliberate failure to comply with the stipulation of settlement, in that he allegedly interfered with his right to frequent and regular visitation with and telephone access to his children and by alienating the children from him through numerous acts of disparaging.

The court then granted the man’s motion by its amended decision and order, to the extent that a hearing was ordered. The contempt hearing was held with set schedules.

A New York Divorce Lawyer said the parties’ stipulation was incorporated but not merged into the parties’ decision of divorce. Pursuant to the unequivocal terms of the stipulation, the woman was prohibited from alienating the children from the her former husband, placing any obstacle in the way of the maintenance, love and affection of the children for the man, or to hinder, impair or prevent the growth of a close relationship between the children and their parents, respectively, or cause others to do so. Moreover, in sharing joint legal custody of the children, the woman was specifically required to consult with the man regarding decisions affecting the children’s education, health and religion.

Published on: September 22, 2014

Appeals Court Decides if Trial Court Erred in Terminating Parental Rights

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding pursuant to Social Services Law § 384-b to adjudicate the subject child to be a permanently neglected child and to terminate the mother’s parental rights, the Nassau County Department of Social Services appeals from an order of the Family Court, Nassau County, entered August 6, 1992, which, after a fact-finding hearing, dismissed the petition, without prejudice to renewal.

A Nassau Order of Protection Lawyer said that, the appellant contends that the fact-finding hearing amply supports a finding of permanent neglect, that it made diligent attempts to strengthen the parent-child relationship, and that, despite its encouragement, the mother, who is the respondent on this appeal, failed to maintain continuous contact with her son on a regular basis and has failed to plan for the future of the child. A Nassau Family Lawyer said that, the child in question is mentally retarded and suffers from cerebral palsy and ataxia. A neglect finding was entered against the mother, and the child was placed in the custody of the father. Several months later, the child suffered a broken leg while under the care and supervision of the father’s friend, and he was then placed in foster care on June 21, 1985. Since that time, due to his multiple handicaps, the child has been placed into six different foster homes.

A New York Divorce Lawyer said the issue in this case is whether the court erred in dismissing the petition to terminate the parental rights of the mother of the subject child.

Published on: August 31, 2014

Court Revisits Custody and Visitation Rights in Divorce Case

by Stephen Bilkis

A New York Family Lawyer said in March 29, 1973, an order from the Family Court awarding custody of the child of the parties to respondent and granting visitation rights to the petitioner was entered and appealed by the latter. Consequently, the said order was reversed and the custody of the child was awarded to the mother, the petitioner. For the determination of visitation rights to be granted to the respondents, the proceeding was remitted to the Family Court.

It has been ruled that the custody of this child of tender years has been in the mother pursuant to a separation agreement which became incorporated into a foreign decree of divorce in 1969. The Family Court specifically found the mother not to be unfit.

A New York Divorce Lawyer said the Court have reviewed the record and found that the mother is neither unfit nor less fit than the father. Under these circumstances, it was error for the Family Court to change custody to the father.

Published on: August 7, 2014

Court Rules in Paternity Suit

by Stephen Bilkis

A New York Family Lawyer said this proceeding before the court is a petition by X for an order declaring him to be the father of PJ who was born on 16 July 1999 and for an order setting his child support obligation. A, the child’s mother, opposes the petition. B, married to A at the time of PJ’s conception and birth and continues to be married to her today, also opposes the paternity petition. The Attorney for the Child also opposes the paternity petition.

On 7 January 2004, X filed his petition. At around this time, PJ was four-and-a-half years old. For a variety of reasons not having anything to do with X, the case took an inordinately long time to conclude. A and B together successfully evaded service for more than 19 months. When the Magistrate learned that A was married when PJ was born, she added B as a necessary party, issued a summons for him to appear. The court referred the matter to a judge to address the issues of equitable estoppel and presumption of legitimacy.

A New York Divorce Lawyer said X and his sister, M, testified in favor of X’s petition. A and B testified in opposition to the petition and in support of their affirmative defenses of the presumption of legitimacy and the doctrine of equitable estoppel. Having considered the evidence and had the opportunity to assess the credibility of the witnesses, the Court’s findings of fact and conclusions of law are set forth below.

Published on: August 5, 2014

Court Looks at Whether Respondent may be Subject of a Summary Licensee Proceeding

by Stephen Bilkis

A New York Family Lawyer said that, in January of 1989, the petitioner purchased a premises known as Pine brook Avenue, New York. A certified copy of the deed to the premises was offered into evidence, although the respondent concedes that her name does not appear on the deed or mortgage. The monthly mortgage payment for the premises at issue is $1,350 per month. In April of 1994, the parties had a child out of wedlock. In December of 1997, the respondent and the parties’ minor child moved into the subject premises with the petitioner. At the time that the respondent moved into the premises in question, there was no written agreement between the parties with regard to the subject premises and the respondent was not married to the petitioner. However, the parties were involved in a relationship, as boyfriend and girlfriend, and had been involved for some time. In July of 1999, the parties’ second child was born out of wedlock. Sometime after the birth of the parties’ second child, in early 2000, the relationship between the parties failed.

A New York Divorce Lawyer said that, soon thereafter, the respondent brought a Family Court proceeding for child support of the parties’ two minor children. As a result of this proceeding, a Family Court order of support was issued. In May of 2000, the respondent commenced another Family Court proceeding. This proceeding was to obtain a protective order. On December 1, 2000, an order of protection was ordered by the Nassau County Family Court, in favor of the respondent and against the petitioner, upon default of the petitioner. Shortly after the order of protection was issued, the petitioner demanded that the respondent leave the premises.

A Nassau Order of Protection Lawyer said that, in December of 2000, the petitioner served the respondent a 10-day notice to vacate the premises. In January of 2001, the petitioner commenced a holdover proceeding to obtain exclusive possession of the premises in question, on the ground that the respondent is a “licensee” whose license has been terminated by the proper notice and service under RPAPL 713 (7). The respondent waived any defects in the 10-day notice, the petition and any jurisdictional defects. At the commencement of this proceeding there was no child support or custody order in effect. The order of protection, however, was in effect.