Visitation

Published on: August 8, 2016

Petitioner Seeks to Vacate Determination by Department of Consumer Affairs

by Stephen Bilkis

Legal counsel said that, the current motion by Petitioner is to vacate a determination of the Nassau County Department of Consumer Affairs (DCA) to the effect that Plaintiff Corporation was an unlicensed home improvement contractor in violation of the Nassau County Administrative Code. The Cross-motion, denominated a motion by the Respondent, is to confirm the determination of the DCA.

The related action is by plaintiff to recover $90,000 held in escrow after the transfer of title to a single family residence from North Sea to the respondent. The $90,000 included $65,000 which was due to plaintiff on receipt of a Certificate of Completion, and $25,000 for work to be completed after the transfer of title. This Court has previously awarded plaintiff a judgment in the amount of $65,000. The respondent filed a complaint with the DCA that plaintiff was not entitled to payment because they were operating as an unlicensed home improvement contractor in violation of Local Law 6-1970, § 21-11.2.1 The parties appeared for a hearing before Hearing Officer, on June 19, 20082, and a determination was rendered on June 22, 2008. It found Elm Sea in violation of the ordinance and fined them $500.3 A Nassau Order of Protection Lawyer said that, plaintiff appealed and a final determination was rendered on July 9, 2008.4 The Commissioner of the Office of Consumer Affairs rejected the arguments of plaintiff that the work performed on the residence after the closing was in accordance with a contract of sale in which plaintiff, as owner, agreed to perform work on the premises prior to closing. The Commissioner distinguished between the work done before the transfer of title, when plaintiff was arranging for work on its own home, and work done in accordance with a “punch list”. The Respondent concluded that the change order was a contract for home improvement for which a license was required.

The Court concludes that the determination by the Respondent that the “Punch List” constituted a separate and distinct home improvement contract requiring a license for performance is unreasonable. The determination is vacated and the fine in the amount of $500 is set aside. There is no controversy but that the work done by Elm Sea on the home to which it took title on September 1, 20066 did not require a home improvement license. The work was done in accordance with necessary permits and was approved by issuance of certificates of completion.

Published on: April 25, 2016

Court Decides if Attorney Should Be Removed from Case

by Stephen Bilkis

This was a case before the Supreme Court of the State of New York in Kings County.

It involved a Notice of Motion, Order to Show Cause, Petition and Cross Motion where the court was called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel were properly before the court; (3) whether or not the defendant was entitled to a 30 day stay of all proceedings in the event counsel was relieved pursuant to CPLR 321(c); (4) whether or not the defendant was entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have had the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

The counsels of defendant’s application to be relieved:

Published on: April 22, 2016

Wife Seeks to Obtain TRO Against Husband

by Stephen Bilkis

Mr. H married Mrs. C on August 21, 1975. They had two children from that marriage. K born July 16, 1976 (13) and A born June 25, 1978 (11). Mr. H and Mrs. C were divorced on April 3, 1985 and both children presently reside with their natural mother, respondent, Mrs. C. H then married petitioner M on June 8, 1986. They also have two children: AY born April 8, 1987 (2) and IY born September 29, 1988 (1). Petitioner, M also has a child from a prior marriage, N born December 18, 1980 (9), who resides with her, Mr. H, AY and IY.

According to the terms of the April 3, 1985 judgment of divorce which incorporated a separate agreement entered into by C and H, C, was granted custody of the two children, K and A, while H was granted visitation rights. On more than one occasion, H violently assaulted Mrs. C resulting in numerous Orders of Protection from the Kings County Family Court. C thereafter brought an Order to Show Cause in October 1988, inter alia to suspend visitation by H. In this Order to Show Cause, the request was made for a temporary restraining order restraining H from undertaking visitation. This T.R.O. was stricken by Justice MS when the Order to Show Cause was signed. However, the Appellate Division reinstated this T.R.O.

The motion came to be heard before Judicial Hearing Officer DC. After a hearing J.H.O. DC rendered a decision on June 30, 1989, stating that there is no question that defendant, [Mr. H] did violently and viciously attack and severely bruise and injure the plaintiff Mrs. C in the presence of his children who were struck several times.

Published on: April 21, 2016

Defendant Requests Clarification on Final Divorce Decree

by Stephen Bilkis

In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.

By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:

“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.

Published on: February 18, 2016

Court Grants Father’s Petition to Modify an Order for Visitation

by Stephen Bilkis

In a related visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County, dated November 30, 2012, as, after a hearing, in effect, granted his petition to modify an order of visitation dated January 14, 2010, only to the extent of awarding him supervised daytime visitation.

An order dated January 14, 2010, the Family Court awarded the father, who lives in Texas, unsupervised visitation with the subject child in New York, including overnight visitation during various school holidays. The only restrictions upon the father’s visitation were that a social worker would monitor exchanges of the subject child and would have to pre-approve any accommodations chosen by the father for overnight visitation. At one point, the Family Court modified the visitation order by suspending overnight visitation. However, on a prior appeal, this Court reversed that order of the Family Court, thereby effectively reinstating overnight visitation.

In October 2010, the father filed a petition to modify the order of visitation dated January 14, 2010 (hereinafter the January 2010 visitation order), so as to eliminate the involvement of a social worker in monitoring exchanges of the subject child and approving accommodations for overnight visitation. In opposing the father’s petition, the attorney for the child requested that any parenting time should be of short duration and at specific locations. The attorney for the child did not request supervised visitation. In an order dated December 7, 2010, the Family Court, in effect, denied the father’s petition to modify and granted the application of the attorney for the child to modify the January 2010 visitation order so as to limit the father’s parenting time to brief unsupervised visits at specific, public places.

Published on: July 18, 2015

Court Listens to Two Related Cases Pursuant to Social Services Law 384b

by Stephen Bilkis

The two cases below are about family law and proceedings.

The first case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Published on: March 25, 2015

Court Decides Custody in Light of Sexual Abuse Allegations

by Stephen Bilkis

Following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent wife sole legal and physical custody of the parties’ minor child, D (born in 2000), and established a visitation schedule for petitioner. Family Court did so with great hesitation, noting respondent’s marked weaknesses as a parent, including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner.

Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child’s school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

Published on: October 23, 2012

Plaintiff Moved to Increase Alimony

by Stephen Bilkis

This is a case being heard in the Special and Trial Term of the Supreme Court located in New York County. The plaintiff in the matter is Ethel Phillips and the defendant is Gilbert L. Phillips. The plaintiff is seeking a separation from the defendant, who is her husband. Ms. Phillips alleges that the defendant has treated her cruelly and fails to provide fro her. A New York Family Lawyer said the defendant denies these allegations and has entered a counterclaim seeking an annulment from the marriage. The defendant states that their marriage should be annulled because the plaintiff was still married to another individual at the time the couple was married.

Case Background

On the last day of March in the year 1950, the plaintiff obtained a divorce from her husband, Mr. Moss. This divorce was obtained in the state of Georgia in the Superior Court of Richmond County. At the time of the divorce the plaintiff stated that she had been a resident of Georgia for over a year before instituting the action for divorce. However, a New York Custody Lawyer said the plaintiff was actually still a New York state resident at that time. She had only been in Georgia for a couple of days and visited the state for the purpose of obtaining the divorce and no other reason. She had not established a residency in the state of Georgia. Moss, the plaintiff’s husband acknowledged the action in the Georgia court and did not contest the divorce. The decree from the Georgia court states that the divorce was granted to the plaintiff on the 31st of March, 1950. After the divorce took place, the plaintiff’s ex-husband Moss took on another spouse.

Published on: July 20, 2012

visitation

by Stephen Bilkis

Divorce creates many situations within a family that cause difficulties. In New York, the goal of the court system is to ensure that the children do not suffer because of the conflict between the parents. A New York Family Lawyer said no matter how much a court system may attempt to ensure that the children do not suffer from the stresses of the parents, it is impossible to achieve this goal entirely. In many cases, the parents do not stay in New York and one may move to a different jurisdiction. When this happens, the parents along with the court must decide if they are in a position to continue to handle the court issues of visitation and support through the New York court system.

One case from 1999, concerned the ongoing issues of a family going back more than ten years before the case was discussed in New York Family Court. The couple were married in Buffalo, New York on June 21, 1987. In 1988 and 1990, they brought two children into their marriage. The couple resided in New York City and Long Island while they both attended college. Toward the end of their marriage, they moved to Hamilton, Massachusetts. They were separated on December 21, 1993, and divorced in 1995. The couple agreed that the children would live with their mother in the family home in Massachusetts and the father moved to a townhouse near the home. In 1995, the mother moved to Buffalo, New York with the two children. The couple agreed that the Massachusetts Family Court would continue to have jurisdiction over the divorce decree and the continuing issues of visitation and support with the children. However, as both parents moved on with new families of their own, additional issues have arisen.

The final divorce decree created in Massachusetts allowed that the children were the full custody of the mother with the father being allowed liberal visitation. However, the father remarried and began a new life with his new wife and stepdaughter in Ipswich, Massachusetts. The mother met a man in New York and later moved with him and the two children from her previous marriage to Oregon. The father at that time filed for the children to rejoin him in Massachusetts. The issue of the court became a situation in which the father stated that he was being expected to spend too much money visiting the children in Oregon, or having the children flown out to visit him in Massachusetts. A Queens Family Lawyer said the case was brought before the New York Family Court in which they agreed with the father and ordered that the child support payments that the father was ordered by the Massachusetts Court to make, should be put into a separate banking account and used to pay for the expenses of visitation and plane fare. The mother filed an appeal.

Published on: February 4, 2012

Court Rules on Visitation Case

by Stephen Bilkis

Emily Black Pyne was married to James L. Black, said a New York Family Lawyer. They had two children and divorced when the younger of the two, Allison, was about three years old. In their marriage dissolution agreement, Mr. Black was to pay child support for both children until they reach twenty–one. He stopped paying when the eldest, Rhonda, was sixteen and the youngest was twelve years-old. According to Mr. Black, this was because about two months before he stopped paying, which was Christmas time, he asked for visitation, but he was denied by Ms. Pyne.

From the time of the divorce to about nine years after, Mr. Black was working internationally and most of the time out of the country, so he had very few visitations with his children at most two to three days a year. At the time, when he asked for the Christmas visit, he had already left the international employment and was living near Ms. Pyne and the kids. After the visit was denied, he consulted a lawyer and sent a demand for regular scheduled visitation. A New York Custody Lawyer said that it disturbed Ms. Pyne, her new husband and the children as Mr. Black has not had that amount of visitation before. In addition, Rhonda who was sixteen at the time was in counseling and therapy because she was diagnosed as having agoraphobia.

Both Rhonda and Allison said they did not want to see Mr. Black. Rhonda, who was doing well in school, was also having a hard time with everyday living. She was thinking as well that Mr. Black may have been abusive to her and was afraid of him. For Allison, who was twelve, she felt rejected by Mr. Black and disliked him. Ms. Pyne had offered therapy for her to be able to reconcile with Mr. Black, but the child refused. Ms. Pyne did not want to force her children to doing anything, so she did not push, according to testimony read by a Nassau County Custody Lawyer.