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Court Discusses Custody of Allegedly Abused Child



In related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County, which, upon a decision of the same court, made after a fact-finding hearing, dismissed the petitions.

Article 10 of the Family Court Act defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child’s care ‘commits, or allows to be committed, a sex offense against such child”, quoting Family Ct. Act § 1012[e][iii]. A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker.

The Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur,” and “once a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability”. However, “the burden of proving child abuse always rests with petitioner”

Here, contrary to the Family Court’s determination, the petitioner sustained its burden of proof by a preponderance of the evidence that the subject child was an abused child. The medical evidence presented by the petitioner established that the child, then three years old, had contracted gonorrhea while under the care and supervision of the respondents. “Unexplained evidence that a young child suffers from a sexually-transmitted disease suffices to establish a prima facie case of child abuse”

Since the petitioner established a prima facie case, the burden shifted to the respondents to rebut the evidence of parental culpability. The respondents failed to rebut the petitioner’s prima facie case of abuse.

Further, a preponderance of the credible evidence supports a finding that the respondents neglected the child. Finally, the proof of abuse and neglect by the respondents of the child was sufficient to establish that the respondents derivatively abused and neglected the child’s sibling..

Accordingly, the Court reinstated the petitions and remitted the matter to the Family Court, Kings County, for a dispositional hearing and a disposition thereafter.

In another proceeding pursuant to Domestic Relations Law § 72 for grandparent visitation, the maternal grandmother appeals from an order of the Family Court, Kings County, which, after a hearing, dismissed the petition for lack of standing.

The subject children lived with the petitioner, their maternal grandmother, intermittently for the first 2¼ years and 1¼ years of their lives, respectively. After the Administration for Children’s Services filed a petition in a separate matter alleging neglect against the children’s mother, the children were placed with the petitioner in March 2002. However, thereafter, the children, who were then 2¼ years old and 1¼ years old, respectively, were removed from the petitioner’s custody due to the condition of the petitioner’s home.

In December 2002, the children were placed with their paternal grandmother, hereinafter the respondent, who was subsequently, designated the children’s foster parent and adoptive resource, and they have resided with her since that time.

The petitioner testified that, after the children were removed from her home, she usually visited them approximately once or twice per week until the mother’s parental rights were terminated pursuant to an order of the Family Court. While a finding of fact made by the Family Court during the proceeding to terminate the mother’s parental rights suggests that the petitioner only accompanied the mother to nine of the mother’s scheduled agency visitations with the children, the record reveals that the petitioner had several other visits with the children. The petitioner further testified that she contacted the respondent directly several times to request visitation, but the respondent refused her request.

The petitioner filed the instant petition, seeking grandparent visitation rights. Following a bifurcated hearing, the Family Court determined that the petitioner lacked standing, and dismissed the petition. The petitioner appeals and the Court reversed the decision.

In considering whether a grandparent has standing to petition for visitation rights based upon “circumstances showing that conditions exist which equity would see fit to intervene” “an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship”. In cases where such a relationship has been frustrated by the parent, the grandparent must make “a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention”. In ascertaining the sufficiency of the grandparent’s efforts, “what is required of grandparents must always be measured against what they could reasonably have done under the circumstances”

In addition to these considerations, “the nature and basis of the parents’ objection to visitation are among the several circumstances which should be considered by courts deciding the standing question”

Here, where it is another grandparent who allegedly frustrated the petitioner’s relationship with the grandchildren, the petitioner established that, in addition to the bond she formed with the subject children when they lived with her during the first years of their lives, she also made a sustained and concerted effort to maintain contact with them, which was sufficient to confer standing to seek grandparent visitation. Moreover, the record is devoid of any indication as to “the nature and basis of the respondent’s objection to visitation”

Therefore, the Family Court improvidently exercised its discretion in concluding that the petitioner was without standing to seek visitation.

Accordingly, the matter must be remitted to the Family Court, Kings County, for a hearing on the issue of whether an award of grandparent visitation to the petitioner would be in the best interests of the grandchildren.

Child custody should be awarded to a parent who is capable in taking care of the subject child and will be able to give a better future to him. Here in Stephen Bilkis and Associates, lawyers who will represent you in proving your capabilities in giving your child a better future. We will help you obtain custody of your child in accordance with the law requires.

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