New York Family Law Blog

Published on: May 9, 2012

Appellant Contends Court Lacked Jurisdiction

by Stephen Bilkis

A lawsuit appeal arises out from a family court decision that the court has lacked authority in a custody modification proceeding after a mother fled with her five-year-old son to another country in the middle of the proceeding. A New York Family Lawyer said the court however reversed the said decision.

A complainant father is a United States citizen and his wife as an Italian national who is also a United States citizen and has one child, born in Italy and has dual citizenship.

Apparently, a decision of the divorce was entered in New York. The court finds that it had no authority over custody issues of the child because the boy had lived in New York for only 9 out of his 27 months since birth. As a result, there were no court orders in New York with regard to child custody, visitation or maintenance. Subsequent in filing of the proceedings, the mother filed same proceedings in Rome and the father was permitted to the court in Rome to enter orders for child custody and visitation.

Published on: May 8, 2012

Court Determines Custody Issue

by Stephen Bilkis

A former husband filed a petition to modify a divorce decree order made by another court and seeks a sole custody of his son. A decree of divorce was filed and was made by the Supreme Court. The basis of authority for the decree was a separation agreement entered into between the couple which had been adhered to by them for one year prior to the commencement of the proceeding. A New York Family Lawyer said the separation agreement entered into between the husband and his wife was filed in the county clerk’s office. The terms of the separation agreement were included but not merged in the decree of divorce.

The decree ordered that all matters arising in the future pertaining to the enforcement of the decree or to requested modifications of any provision whether pertaining to child support, visitation or child custody, be and the same are referred to a family court or to the appropriate court having authority to the issue. A Nassau County Family Lawyer said the separation agreement indicates that the couple was married and lived in New York and the wife shall have custody of the children of the marriage. The husband’s visitation rights were outlined in some detail.

The issue came on for a proceeding and the father appeared by counsel but the mother failed to appear. The court was informed that the child who is the subject in the proceeding lives in Connecticut but runs away and is in New York with the father.

Published on: May 7, 2012

Defendant Contends 14th Amendment Rights were Violated

by Stephen Bilkis

A trained undercover state police officer has purchased heroin from a seller (herein respondent) through the open doorway of an apartment. Subsequently, the police undercover described the seller to another police officer as being a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. A New York Family Lawyer said such other police officer, suspecting from the description that respondent might be the seller, then left a police photograph of respondent at the office of the police undercover, who viewed it two days later and identified it as the picture of the seller.

Consequently, respondent was charged with possession and sale of heroin, a drug crime in violation of the criminal law.

At trial, the aforesaid photograph was received in evidence without objection and the police undercover testified that there was no doubt that the person shown in the photograph was respondent and also made a positive in-court identification without objection.

Published on: May 6, 2012

Mother Takes Child Out of State Due to Abuse Suspicions

by Stephen Bilkis

The father, who is thirty-two years of age, and the mother, who is thirty years old were married in New York. A New York Family Lawyer said while married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The couple knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with their child. The mother gave birth to a son and at the time of the son’s birth the couple was living separately. However, during the early days of the marriage, the couple lived at the mother’s relative’s residence in Brooklyn. A great amount of the couple’s marriage can be characterized as tumultuous and there were incidents of domestic violence.

The father commenced a divorce action alleging cruel and inhuman treatment. Initially, the mother appeared without a counsel but later retained one. The mother was allegedly served with the summons with notice in an action for divorce at a Family Court.

In support of her request that she be awarded full legal child custody, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about child custody. A Nassau County Family Lawyer said she argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego child custody, in favor of the mother.

Published on: May 5, 2012

Court Rules of Visitation Issue

by Stephen Bilkis

A man and his wife were residents of California and were married in California in October 1975. Their daughter was born also in California on January 29, 1977. Two years after their marriage and not soon after their daughter was born, their marital problems drove them to a trial separation.

A New York Family Lawyer said the mother and the daughter came to New York. The father joined them in New York and stayed with them for six weeks but he returned to California. A year after that, in 1978, the mother and her daughter returned to California. They stayed there until 1979. After this, the mother and her daughter returned to New York and continued to live there.

The husband who stayed in California filed a divorce proceeding in the Superior Court of California. A New York Custody Lawyer said the judge there ordered their divorce and awarded sole child custody of their daughter to the mother and gave the father reasonable visitation rights.

Published on: May 3, 2012

Defendant Contends Due Process Violation

by Stephen Bilkis

Police undercover operations involving drugs and drug sales are strictly monitored. It is important that the rules are followed so that everyone’s rights are preserved. A New York Family Lawyer said that means that if the police officers do not follow the guidelines that are established in the law, the entire case can be overthrown in court. There may even be grounds for a civil lawsuit if the police violate a person’s rights. In order to be assigned an undercover task, a police officer is required to attend a specialized school that teaches them what they need to know about the laws particular to undercover stings.

In 1970, many of the undercover laws that are used to protect people today did not exist. Much of the case law from that period was used to create the laws that are in use today. On May 5, 1970, at 7:45 in the evening, a trained undercover officer and his informant arranged to go to 201 Westland, in Hartford. The person who lived at that address was a known drug dealer who called himself, “Dickie Boy.” The pair went to the apartment with two support officers. A New York Criminal Lawyer said the support officers watched from outside the building as the two went inside. When they got to the apartment in question, they knocked on the door. A black man who was about five foot eleven inches tall answered the door. He had a dark complexion with jet-black hair cut into a short natural afro. He had high cheekbones and a heavy built frame. The undercover team purchased heroin from the dealer and left. When the officer and informant returned to the backup officers, the officer described the drug dealer; one of the backup officers thought that he knew who the dealer was.

When they returned to the police station, the backup officer pulled a photograph of the dealer that he thought matched the description of the man who had sold the undercover team the heroin that evening. A Nassau County Family Lawyer said that two days later, when the other officer came in to the office, he saw the picture of the dealer that the backup officer had left for him.

Published on: May 2, 2012

Court Grants Divorce Based on Constructive Abandonment

by Stephen Bilkis

A couple was married in Albania. The couple had five children and all of the children are free from restraint. The children are ages are thirteen, eight, seven, five and four. A New York Family Lawyer said the four youngest children reside with the mother at a shelter in a confidential address, while the eldest child resides with the father at the marital residence, a rented apartment in New York. The couple is both in good health. An Albanian interpreter was provided for the wife throughout the litigation since she does not speak English. Although the husband testified in English during the child custody and visitation trial, he requested the use of an interpreter for the financial trial. The husband’s former attorney was relieved as counsel for the husband shortly after the child custody and visitation decision was rendered. The counsel was substituted.

During the marriage, the husband worked in the construction industry which enabled him to financially support the family and send funds to Albania. A Nassau County Family Lawyer said the wife is as a stay-at-home mother as established during the child custody trial. The couple and their children traveled to Albania. The husband returned to the United States after two weeks, however, the wife and children were left in Albania at the parents’ house of the husband for two years. The wife and youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family while the four eldest children remained with the husband’s parents. Thereafter, the marriage fractured and the husband returned to Albania to bring the four eldest children back to the United States. The wife and youngest child returned to the United States and moved directly into a domestic violence shelter, where the wife and the four youngest children resided. The events of the couple’s life in Albania and their return to New York are the subject of the court’s extensive child custody and visitation decision.

The husband testified to grounds for divorce. He testified that his wife ceased having sexual relations with him. The abandonment took place at the marital residence in New York. The husband further testified that he has requested that the wife resume sexual relations with him. He testified that the wife had no cause or justification for her actions and that there are no physical impairments to him having sexual relations with the wife. He did not condone or consent to her actions. A Nassau County Child Support Lawyer said the parties were married in a civil ceremony therefore there is no barrier to remarry. The wife remained silent, neither admitting nor denying the husband’s testimony. The court reserved its judgment pending the resolution of the supplementary issues.

Published on: May 1, 2012

Court Rules on “Horiffic” Domestic Violence Crime

by Stephen Bilkis

The accused and his victim had an “on and off” intimate relationship from January 1996 to June 199. In early June of 1997, they had an argument in which he accused her of having an affair with another man. After this argument, the victim broke off contact with him and moved out of his apartment. A New York Family Lawyer said that for over a month, he attempted repeatedly to reconcile with her. Desperate to contact her, the accused left an urgent message with the victim’s family friend stating that he was going to be hospitalized. In response, she called him that evening. During the conversation, the accused lied to the victim and told her that he had cancer. The victim then promised to visit him on 11 July 1997, between 10:00 a.m. and 11:00 a.m.

On 11 July 1997, the victim arrived at the home of the accused at around 1:00 p.m. The accused was agitated because the victim was late. They first discussed his medical situation. The accused then shifted the focus of their conversation to his desire to have her back. He led her into his bedroom where the conversation continued. When she told him that she did not love him in the manner that he had thought and that she had to get her things from his apartment, he flew into a rage and punched her. He then picked up a hammer and struck her, causing her to fall. A New York Custody Lawyer said while in the process of striking her again, he lost his balance and fell on top of her. She managed to grab the hammer out of his hand. However, he found another hammer and continued striking her. The accused then went to the kitchen, retrieved a knife, and began stabbing her. Finally, he drove the knife into her throat and held it there until she died. The cause of death was multiple blunt and sharp force trauma injuries.

At the trial, the court found that the murder (domestic violence) was especially heinous, atrocious, or cruel and gave this aggravating circumstance a great weight. According to the County Medical Examiner who performed the autopsy, there were 144 wounds inflicted on the victim, fifty-seven of which were blunt force trauma injuries consistent with being struck by the flat and claw side of a hammer. A Nassau County Family Lawyer said the remaining eighty-seven wounds were sharp force wounds consisting of forty-one stab wounds (i.e., the wounds were deeper than they were long) and forty-six incise wounds (i.e., the wounds were longer than they were deep). The victim had multiple defensive wounds on the palms of her hands and on her arms from blocking the blows and grabbing for a weapon. The examiner testified that she was alive for all but one of the 144 stab wounds and hammer blows. The brutality of the attack, coupled with her defensive wounds, bodily movements, and blood spatter, suggested that she knew she was fighting for her life and was aware of her impending death.

Published on: April 30, 2012

Court Discusses Jurisdiction Issue

by Stephen Bilkis

The Facts:

A “husband” (also referred to as decedent or deceased) and his wife were married for forty years at the time of his death. They had four children together, and she had two from a previous marriage. A New York Family Lawyer the husband was Jewish and his wife was not. They celebrated some religious holidays with the family, but they did not belong to a temple, nor did the children regularly attend services. The husband never had a bar mitzvah ceremony. The husband’s family had a family plot in Mount Hebron Cemetery, a Jewish cemetery in New York, purchased by the husband’s grandfather. All of the husband’s family and their spouses were buried there. The husband and his wife lived in New York until 1998 when they moved to Florida.

After relocating to Florida, the husband began to have health problems. Around 1999, the husband told his wife that he wanted to be buried in his family plot in Mount Hebron with her. However, in May of 2001, when the husband went into the hospital, he and his wife first discussed being buried together in Florida.

Published on: April 28, 2012

Court Determines if Personal Jurisdiction Present in Divorce Case

by Stephen Bilkis

On 18 May 1981, in the hopes of forming a family, appellant husband and his wife got married in Queens, New York. The parties then resided in West Germany until May 1983 when the wife left West Germany and moved to Montgomery, Alabama.

A New York Family Lawyer said the husband has petitioned the court for the dissolution of his marriage and filed it in Okaloosa County, Florida. He alleges that he is currently domiciled in Okaloosa County and has been a resident of Florida for at least six months before filing his petition.

In opposition, the wife moves to dismiss the petition and states that the court lacks jurisdiction over the parties because the husband has not been a physical resident of the State of Florida for at least six months next prior to the filing of the Petition for Dissolution of Marriage.