New York Family Law Blog

Published on: November 20, 2012

Court Hears Child Protective Proceeding

by Stephen Bilkis

This child protective proceeding was commenced on June 17, 1983, pursuant to Family Court Act, Art. 10. A Bronx Order of Protection Lawyer said that, the neglect petition was filed one week after the police had responded to a neighbor’s call of a child beating, whereupon it was ascertained that the subject child, had multiple bruises, welts and lacerations. The hospital record, almost 50 pages in length, is replete with gross references that there were “multiple bruises all over body,” both old and fresh injuries, cigarette burns and belt buckle marks. The subject child, who was approximately 5 years of age at that time, also disclosed that she had been previously raped by her uncle, the mother, was arrested for endangering the welfare of a minor and, after pleading guilty, was sentenced to probation. Although she initially admitted that she had hit the subject child with a belt, she later denied it, claiming that the injuries were self-inflicted and, subsequently, she stated that she only hit the child with the cloth part of the belt.

A Bronx Order of Protection Lawyer said it appears that the mother has had a long history of psychiatric problems, having been in foster care almost since birth. At the age of 15, while she was living with her mother, she was sexually abused by her mother’s boyfriend, resulting in the birth of the subject child on June 20, 1978. Her other child, was born on July 5, 1982. At the time of these events, the respondent mother was employed as a typist and, to save the expense of babysitters, she had asked her brother, to stay with the children while she was at work. It is alleged that, between April and June, 1983, her brother repeatedly sodomized the subject child, who, although afraid to tell her mother did tell a neighbor’s son, whose mother told the respondent mother what had occurred. She did not report this to the police but claims she did attempt to comfort the child.

A New York Family Lawyer said that, a fact-finding hearing was held on December 21, 1983, where the court, over the objection of both the assistant corporation counsel and the law guardian, accepted an admission of neglect by the mother that she had hit the child on the arm with a cloth belt, but not with the belt buckle. The court did not allow any other evidence on the issue of abuse or neglect. Subsequently, a dispositional hearing was held, at which a staff psychiatrist, with the Family Court Mental Health Services, testified that the subject child was fearful of her mother, had refused any visitation with her and was not interested in returning to her custody. It was recommended that the child be continued in foster care and, receive psychiatric treatment, with limited supervised visitation. A psychological evaluation disclosed that the child was emotionally traumatized as a result of the mother’s physical and verbal abuse and that returning the child to the mother would, in all likelihood, lead to further abuse in the future.

Published on: November 19, 2012

Court Decides Womens Earnings Not Relevant to Man’s Obligation for Child Support

by Stephen Bilkis

A couple in this proceeding was duly married and became the parents of two children. They lived as a family in New York City continuously until September of 1948. In 1950, the man went to Nevada and marries another woman, following a typical Nevada divorce mill constructive service default order. A New York Family Lawyer said he remained in Nevada only about two months after obtaining such order. He left Nevada to transact business in New Jersey.

The woman then filed an action against the man asking for child support according to his means and station in life. Because their children are residing in New York City and the man is again living in New York City, the court has the mandatory jurisdiction to enter an order for their support.

A New York Custody Lawyer said the woman as first wife also questions the legality of the husband’s remarriage and asserts that his second wife is as a matter of law his paramour and, as such, without any legal right to support.

Published on: November 17, 2012

Court Alters Child Visitation Schedule

by Stephen Bilkis

In a proceeding to determine child custody pursuant to Family Court Act, in which the mother cross-petitioned for modification of an order of the Bronx County Family Court, granting the father child custody of his daughter, the father appeals from a dispositional order of the Nassau County Family Court, which, after a hearing, granted permanent child custody of the couple’s two children to the mother.

A New York Family Lawyer said by petition, the father, a resident of Nassau County, requested legal custody of his son who was born in 1987. In his petition, he asserted that he had been left with physical custody of his son since March 5, 1988, when his wife moved to Bronx by herself. However, the evidence adduced at the subsequent hearing reveals that the mother took her son with her when she left.

In her cross petition, the mother confirmed that until March 1988 she resided with her husband along with their son and their daughter, who was born in 1982. She alleged that she left his husband’s residence in March and that he refused to allow her to take their daughter with her. She requested modification of a prior order of the Bronx County Family Court, pursuant to which custody of her daughter had been awarded to his husband, and further requested permanent custody of her daughter.

Published on: November 16, 2012

Mother Seeks to Modify Custody Arrangement

by Stephen Bilkis

This action arises out of a previously child custody case. A New York Family Lawyer said the parties were married and divorced by a decision which incorporated the condition of settlement placed on the record in open court. The condition and decision of separation provided that the parties should share joint custody of their daughter with her primary residence being with the mother.

Consequently, the father filed an application requesting custodial time with their daughter. The mother however cross-moved for an order suspending the father’s visitation with the child, appointing a new law guardian, and referring alleged evidence of the father’s abuse to the child. The father thereafter filed an application for sole custody of the child and requested that the mother have only supervised visitation. The court appointed then a forensic psychologist to interview both parties and the child, and to prepare forensic evaluations. The forensic psychologist filed her report, in which she recommended that the father should receive sole custody and that the mother must have liberal visitation. In response to a report of suspected child abuse and maltreatment of the child filed by the mother, a trial was held. Thereafter, an order continuing joint custody, but providing that primary physical custody of the child would be with the father and the mother would have supervised visitation two to three times a week, was issued.

A New York Custody Lawyer said an eleven day trial took place and during which numerous witnesses testified, including the forensic psychologist, the mother of the child, the father of the child, a case worker, a child protective specialist, the mother’s former husband, and two certified social workers. According to the judge extensive written decision, the forensic psychologist testified with a reasonable degree of psychological certainty that the father should receive physical custody of the child and that the child should visit with the mother in the mother’s home. The psychologist’s forensic reports were also introduced into evidence. The child’s law guardian took the position that the father should receive sole custody. Afterwards, the court awarded the father sole custody of the child, with the mother to have supervised visitation. In addition, an order setting the details of the custody and visitation arrangements were signed.

Published on: November 15, 2012

Court Decides Whether to Consolidate Cases

by Stephen Bilkis

In this case, a New York Family Lawyer said the Plaintiff husband moved to consolidate a Family Court proceeding, wherein he and his mother were charged with abuse and neglect of the parties youngest daughter, into this divorce case which is already at the postjudgment stage. Defendant wife and the Administration for Children’s Services (ACS) opposed the said motion.

The parties were married on November 7, 1984. They had two children, one born in 1988, and the other born in 1994. The Plaintiff husband commenced this action for divorce in February 2002. On May 22, 2002, the parties entered into a stipulation which resolved all issues of child custody, visitation and child support. They agreed that they would have joint legal custody of the children, and that the father would have sole physical custody. A New York Custody Lawyer said they further agreed that defendant wife was to have the children visit her in Florida for six weeks each summer and for two weeks during school vacations. She was also to have overnight visits when she was in New York.

The court entered an order, dated July 13, 2004, continuing the award of sole physical custody to the Plaintiff husband. The court retained jurisdiction over the youngest daughter’s custody.

Published on: November 14, 2012

Court Reverses Child Support for Non-Biological Child

by Stephen Bilkis

In this case,a New York Family Lawyer said the Defendant moved for an order: (1) modifying the Judgment of Divorce to remove any reference to the Plaintiff’s Child as his child; (2) removing any and all obligations of defendant to pay child support for Plaintiff’s Child; (3) directing the Office of Child Support Enforcement to stop any action to enforce payment of child support arrears of the defendant for Plaintiff’s Child; (4) requiring Plaintiff to repay all past child support payments made by defendant; and (5) requiring Plaintiff to pay attorneys’ fees, costs and disbursements for this action.

Based on the records of the case, plaintiff and defendant were married on April 15, 2002 but only began to live together in February 2003. The Child was born on November 15, 2002. On June 2, 2003, the Family Court ordered defendant to pay $ 44 per week for child support. The Plaintiff commenced a divorce action on January 26, 2004 based on cruel and inhuman treatment. By judgment dated August 30, 2004, the Supreme Court granted the Plaintiff a divorce on defendant’s default, and incorporated the terms of the Family Court child support order.

Thereafter, a New York Custody Lawyer said the defendant filed a summons and petition for visitation in Family Court. As the visitation case was proceeding, defendant began to question whether he was the biological father of the Child. On February 10, 2005, defendant took the Child for a DNA test, which excluded the defendant as the biological father of the Child. Since February 2005, neither defendant not his family has had any communication with the Child.

Published on: November 13, 2012

child visitation

by Stephen Bilkis

The Facts of the Case

On 20 December 1988, a boy was born, the herein subject child. On 17 January 1989, he came under the care and custody of petitioner-appellant. On 6 March 1991, the Child Welfare Agency (CWA) filed a petition to terminate the parental rights of the subject child’s natural parents on the grounds of abandonment and permanent neglect. A New York Family Lawyer said that on 9 July 1992, the mother who is not a party to the herein appeal, had her parental rights terminated on the ground of abandonment. Prior to the fact-finding hearing concerning the respondent father, the agency withdrew the allegations of permanent neglect and proceeded on the abandonment cause of action alone. Meanwhile, respondent father was arrested approximately one month after his son’s birth and remains incarcerated to date. It is undisputed that respondent father made no contact with his son or the agency between the date of his arrest and the filing of the petition more than two years later. Nonetheless, after a fact-finding hearing, the Family Court dismissed the petition on the grounds that respondent father proved that he did everything he could to locate his son; that petitioner discouraged contact between respondent father and his son; and that petitioner made no attempt to notify respondent father as to the whereabouts of his son. Thus, an appeal of the said order of the court followed.

The Ruling of the Court:

Published on: November 12, 2012

Court Decides Visitation Rights of Nonbiological Parent

by Stephen Bilkis

The petitioner seeks visitation with the subject child, the biological child of the respondent. The petitioner and respondent married sometime after the child’s birth. A New York Family Lawyer said the child was born on November 17, 1997 and nearly two years later the petitioner executed an acknowledgment of paternity and had his name added to the child’s birth certificate. For several years the couple held him out to be her biological father even though they knew he was not. The petitioner and respondent began having marital problems and the child’s biological father, at some point apparently came back into the respondent’s life. A Bronx Child Custody Lawyer said that, the child’s biological father seeks an order of filiation and the respondent seeks to vacate the acknowledgment of paternity, claiming her signature on it was forged. The biological father and the mother filed their respective petitions simultaneously. In addition, the respondent is pursuing a family offense proceeding against her estranged husband alleging that he verbally harassed her over the phone. A criminal case based on allegations made by the mother against her estranged husband is also pending before this court.

A New York Custody Lawyer said that, a hearing was commenced with respect to the respondent mother’s petition to vacate the acknowledgment of paternity on the grounds of fraud. During the hearing, however, and after the biological father filed his paternity petition, the parties conceded that he is the subject child’s biological father. Independent DNA testing of the biological father confirmed his paternity. This evidence obviates the need for the court to continue taking testimony with respect to the allegations of fraud because Family Court Act Â§ 516-a (b), the statute governing acknowledgments of paternity, specifically states that the court “shall” vacate an acknowledgment if it finds the alleged father, here, the biological father, is in fact not the biological father. To ask the court to continue hearing testimony on the allegations of fraud â€” as the petitioner and the law guardian do in their briefs â€” is in contravention of the plain language of Family Court Act Â§ 516-a (b). It is also asking this court to ignore indisputable scientific evidence and the parties’ own admissions. The Court said that acknowledgment of paternity is vacated and that the biological father herein will be issued an order of filiation.

The issue in this case is whether the petitioner, as a biological stranger, has standing to maintain his visitation petition.

Published on: November 12, 2012

Court Decides Grandparent Custody Case

by Stephen Bilkis

A New York Family Lawyer said a grandmother filed a petition for the issuance of a writ of habeas corpus to compel the adoptive parents of her infant grandchild to bring the child to court. A writ of habeas corpus is an order which may be issued by a court to compel any person having physical custody over a person to bring that person to court.

The grandmother alleges that her grandchild was born sometime in 1957 and was in her care until 1962. A New York Child Custody Lawyer said the father of her grandson was imprisoned and the grandchild’s mother, the daughter of the petitioner died in 1960 as a result of health complications arising from her drug addiction.

A year later, in 1962, the grandmother found herself in court locked in a custody battle over her grandchild against the paternal grandmother of her grandchild. After proceedings in the family court, the custody of the child was awarded to the paternal aunt of the grandchild (the sister of the child’s father). The paternal aunt has had custody over the grandchild from 1963 until this petition for habeas corpus was filed in 1967. Under the custody order, the maternal grandmother (the petitioner in this case) was awarded visitation rights.

Published on: November 10, 2012

Court Determines if Respondent has Personal Jurisdiction

by Stephen Bilkis

On December 6, 2010, Administration for Children’s Services (“ACS”) commenced the instant Family Court Act Article 10 abuse matter. A Bronx Order of Protection Lawyer said that, the Petition alleges the following: A personnel from the Police Department called in a report on November 24, 2010, alleging that the respondent father has been having sexual intercourse with the subject child now 13 years old, on a regular basis. A New York Family Lawyer said the report further alleges that the most recent incident occurred during September of 2010. Further, the subject child’s mother learned of the sex abuse on November 24, 2010, when she found a nude photograph that the subject child had sent to the respondent father via cellular phone.

A New York Child Custody Lawyer said that, the subject child stated to an ACS caseworker that the respondent father began having sexual intercourse with her when she was eleven years old. She further stated that the respondent father has had sexual intercourse with her on numerous occasions and he also has inserted his fingers into her vagina, performed oral sex on her and fondled her breasts. She also stated that the respondent father asked her to send him pictures of her vagina. Finally, the subject child also stated that the respondent father told her that their sexual relationship is their secret until the day they die.

When ACS first appeared on this matter, Petitioner indicated that Respondent Father lived in Georgia and was believed to have last been in New York in November 2010 during a Thanksgiving visit. ACS further noted that the mother and the children had relocated from Texas and had been living in New York since September 2010. The prior judge ordered personal service of the Summons and Petition on the Respondent Father, paroled the children to their mother under ACS supervision, and issued a Temporary Order of Protection against the Respondent Father on behalf of the Non-Respondent Mother and the Subject Children preventing the father from having any contact with the mother and children.