New York Family Law Blog

Published on: July 24, 2016

Court Discussed Domestic Relations Law Article 3A

by Stephen Bilkis

This is an appeal from an order of the Family Court of Ulster County, entered May 8, 1986, which granted petitioner’s application, in a proceeding pursuant to Domestic Relations Law article 3A, for an order directing respondent to pay child support.

Petitioner and respondent were married in 1950 and divorced in 1980. Pursuant to a separation agreement entered into in 1977, respondent agreed to pay $150 per week to petitioner and their two unemancipated children as support, such sum to be reduced by $25 as each child became emancipated. It is clear that respondent has failed to comply with this provision of the separation agreement, as petitioner was awarded a money judgment in Supreme Court in 1983 for support arrears.

Petitioner commenced this proceeding pursuant to Domestic Relations Law article 3A in 1984 in Nassau County Family Court. The petition and petitioner’s testimony were certified and transmitted to Ulster County Family Court, where respondent resided. Following a hearing in Ulster County Family Court and petitioner’s appearance in Nassau County Family Court to answer questions concerning her finances, Ulster County Family Court ordered respondent to pay petitioner $90.50 per week for the support of the remaining dependent child and $20 per week in support arrearages. It is from this order that respondent appeals.

Published on: July 12, 2016

Father Seeks Full Custody of Children

by Stephen Bilkis

This is a contested matrimonial action before the Supreme Court of the State of New York.

On 6 January 2010, the plaintiff, the husband moved by order to show cause and prayed for an order directing the return of their two children, A, age 7, and M, age 4, to New York State, for an order awarding the him temporary custody of their children, and for an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

On 9 April 2010, the wife opposed the husband’s application and cross moved by order to show cause and prayed for an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and for permission for her to commence a custody proceeding in California, and for an order directing her husband to pay all costs associated with Court appearances, including but not limited to, transportation costs including airfare, car rentals, hotel costs, and daycare.

Published on: July 11, 2016

Mother Appeals Revocation of Parental Rights

by Stephen Bilkis

This is a motion brought before the Appellate Division of the Supreme Court of the State of New York, Second Department, by the respondent on appeals from two orders of fact-finding and disposition of the Family Court, Kings County, (one as to each child), both dated 9 June 2006, inter alia, to amend a decision and order of the Court dated 30 October 2007.

The court denied the motion, based upon the papers filed in support of the motion but ordered granted that branch of the motion which was to amend the decision and order. Thus, the decision and order of the Court dated 30 October 2007, in the above-entitled matter was recalled and vacated. The following decision and order was substituted.

The case:

Published on: June 27, 2016

Court Decides Whether to Relieve the Attorney of Record in the 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: June 26, 2016

Court Decides Case Regarding Grandparent Visitation

by Stephen Bilkis

This is an appeal brought before the Supreme Court on the issue of whether Domestic Relations Law § 72, New York’s grandparental visitation statute, is unconstitutional on its face in light of the decision of the United States Supreme Court in Troxel v Granville (530 US 57). The court granted the motion and “deemed” the statute to be unconstitutional. The court ruled that the statute is not facially invalid.

The petitioner, a grandparent, commenced this proceeding pursuant to Domestic Relations Law § 72 to obtain visitation with his 15 minor grandchildren.

The respondents are the grandchildren’s parents (the parents).

Published on: June 21, 2016

Social Services Seeks to Terminate Parental Rights of Father

by Stephen Bilkis

This is a proceeding pursuant to Social Services Law § 384-b to terminate parental rights of the natural father. The petitioner, Little Flower Children’s Services, appealed from an order of the Family Court, Kings County dated 22 September 1993, which dismissed the petition. The court affirmed the order, without costs or disbursements.

On 4 December 1985, SG, the subject child in this termination of parental rights proceeding was born.

Sometime in November 1987, when SG was less than two years old, the Commissioner of Social Services removed SG from her mother’s care because of her mother’s drug use, and placed the child with her maternal aunt. SG has remained in her maternal aunt’s home since her initial placement over six years ago, and SG’s mother has voluntarily surrendered her parental rights to the child.

Published on: June 16, 2016

Plaintiff Wife Obtained Temporary Restraining Order for Violent Attack by Husband

by Stephen Bilkis

A couple was married 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: June 15, 2016

Defendant Responsible for Providing Wife with a Psychiatrist

by Stephen Bilkis

In an action for divorce, defendant husband appeals from so much of a judgment of the Supreme Court, dated December 23, 1981, as (1) granted custody of the parties’ child to plaintiff wife; (2) directed defendant to provide for plaintiff’s psychotherapeutic assistance in the event that plaintiff cannot provide for it herself; (3) directed defendant to pay plaintiff’s legal fees in the sum of $2,750; and (4) set forth a schedule of visitation. Plaintiff cross-appeals from so much of the same judgment as (1) ordered that if she interferes with defendant’s visitation without proper cause, the issue of custody will be reviewed; (2) provided for defendant’s visitation rights including overnight visitation; (3) provided that defendant’s obligation to pay alimony and child support was dependent upon defendant being permitted visitation; and (4) granted only $2,750 in legal fees.

Council said that, judgment modified, on the law, by deleting the provision which directed defendant to provide for plaintiff’s psychotherapeutic assistance in the event that plaintiff cannot provide for it herself. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In determining a question of child custody, a court must weigh various factors and policies in order to ascertain what is in the child’s best interests. On appellate review, the finding of the nisi prius court must be accorded the greatest respect and should not be set aside absent sufficient articulable reasons. Based upon our review of the record before us, we find no basis for setting aside the determination here.

Published on: June 14, 2016

Court Orders that Plaintiff be Responsible for Hospital Expenses of the Defendant

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: June 13, 2016

Wife Files for Divorce Based on Cruelty and Nonsupport

by Stephen Bilkis

In an action by an infant wife for separation on the grounds of cruelty and nonsupport, in which the defendant husband asserted a counterclaim for separation on the ground of abandonment, a judgment was entered in the Supreme Court, on May 18, 1959, after trial, in favor of the defendant, dismissing the complaint, granting him a separation on his counterclaim, awarding custody of their child to plaintiff, with visitation rights to the defendant, and directing the defendant to pay plaintiff $35 per week for the child’s support.

By order dated June 24, 1959 such judgment was resettled so as to define specifically defendant’s visitation rights. By order dated July 10, 1959 such judgment was amended by adding three provisions: (1) enjoining plaintiff from taking the child out of the City of New York; (2) directing plaintiff to make the child available to the defendant during the periods prescribed for his visitation; and (3) suspending defendant’s obligation to make payments for the support of the child in the event that, and as long as, plaintiff should frustrate defendant’s visitation rights by keeping the child out of said City.

The plaintiff by her guardian ad litem now appeals from an order of the Supreme Court, which, inter alia: (1) denied her motion for a counsel fee and expenses to prosecute her appeal from said resettled amended judgment and for an award of $35 a week for the child’s support during the pendency of such appeal; (2) granted defendant’s motion to award custody of the child to him, to hold plaintiff in contempt for violating the judgment with respect to defendant’s visitation rights, and to stay plaintiff from all proceedings (excepting appeals) as long as she continues to violate said judgment and the order appealed from; and (3) further modified the resettled amended judgment by awarding custody of the child to defendant, by prescribing plaintiff’s visitation rights and by enjoining plaintiff from taking the child out of said City.