New York Family Law Blog

Published on: September 24, 2014

Father Fights for Custody of Eighteen Month Old

by Stephen Bilkis

A New York Family Lawyer said the Child was born on October 22, 2002 and came into the custody of Department of Social Services (DSS) who placed her with the foster parents on October 24, 2002. The Child has always resided with the foster parents. DSS did not have any contact with the case worker during the months of October and November of 2002. Between November 2002 and January 2003, the Court finds that the second DSS case worker attempted, on approximately six occasions, to have direct contact with the father, by calling him number and leaving messages for him. The father’s number had been given to DSS by the first case worker.

It was not until sometime in January 2003 that the case worker was in fact able to have telephone contact with the father when he answered the telephone. In January of 2003 he was advised of his need to plan for the Child. His response was to give the caller, the DSS worker, an incorrect last name. The court credits the testimony of the case worker that during this first conversation in January 2003, in response to the revelation that first caseworker had named him as the father, he responded “about time.” Thus, the court finds that he had actual knowledge of the existence of the three month old Child and he acknowledged that he was the father during the same conversation. The case worker wrote the address she had been given.

A New York Divorce Lawyer said the court does not credit the father’s testimony that it was not until four months later, in May of 2003, that it was he who had initiated the first contact with DSS by making a telephone call. Neither is it credible that the father never received any telephone messages left for him by case worker at his number or that the conversation in January 2003, about which the caseworker testified to at length, never took place.

Published on: September 23, 2014

Court Decides of Petition for Relocation Should be Granted

by Stephen Bilkis

A New York Family Lawyer said that, the petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

A New York Divorce Lawyer said that, on April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, Andrew Smith, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

A New York City Family Lawyer said that, on June 5, 2003, the Court ordered that the parties submit to an investigation and report with the Nassau County Probation Department, Family Division. The Court also ordered that Ms. Susan Silverstein, forensic evaluator, prepare a report. On June 30, 2003, the respondent filed an order to show cause with this Court, requesting that the petitioner be enjoined from relocating the children from her residence or, alternatively, why the respondent should not be given custody of the children. A temporary order was made thereafter, dated August 28, 2003, which restrained the petitioner from leaving the jurisdiction of this Court with the Jones children until the time of hearing. The petitioner made arrangements for Joe and Ann to remain in the same school district in Nassau County for the start of the 2003-2004 school year by residing with their maternal grandmother.

Published on: September 22, 2014

Appeals Court Decides if Trial Court Erred in Terminating Parental Rights

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding pursuant to Social Services Law § 384-b to adjudicate the subject child to be a permanently neglected child and to terminate the mother’s parental rights, the Nassau County Department of Social Services appeals from an order of the Family Court, Nassau County, entered August 6, 1992, which, after a fact-finding hearing, dismissed the petition, without prejudice to renewal.

A Nassau Order of Protection Lawyer said that, the appellant contends that the fact-finding hearing amply supports a finding of permanent neglect, that it made diligent attempts to strengthen the parent-child relationship, and that, despite its encouragement, the mother, who is the respondent on this appeal, failed to maintain continuous contact with her son on a regular basis and has failed to plan for the future of the child. A Nassau Family Lawyer said that, the child in question is mentally retarded and suffers from cerebral palsy and ataxia. A neglect finding was entered against the mother, and the child was placed in the custody of the father. Several months later, the child suffered a broken leg while under the care and supervision of the father’s friend, and he was then placed in foster care on June 21, 1985. Since that time, due to his multiple handicaps, the child has been placed into six different foster homes.

A New York Divorce Lawyer said the issue in this case is whether the court erred in dismissing the petition to terminate the parental rights of the mother of the subject child.

Published on: September 21, 2014

Court Addresses Jurisdictional Issue

by Stephen Bilkis

A New York Family Lawyer said that, this is a motion by the petitioner father to dismiss the respondent/applicant mother’s instant petition for modification of child custody and visitation order previously entered by this court during 1999. The instant petition was “clocked in” by the clerk’s office of this court on March 26, 2002 and first appeared on this court’s calendar July 12, 2002. Although the court cannot ascertain the date of service upon the petitioner, the date clearly was subsequent to April 28, 2002. Neither party has stated when service upon the respondent occurred.

A Nassau Family Lawyer said that, respondent states that the Family Court action was commenced by filing of the petition with the clerk of the court on March 26, 2002, and that therefore the law then in effect governs.

A New York Divorce Lawyer said the issue in this case is whether motion by the petitioner father to dismiss the respondent/applicant mother’s instant petition for modification of child custody and visitation order previously entered by this court during 1999.

Published on: September 20, 2014

Court Determines if it was an Error Awarding Sole Custody to Petitioner

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding to determine child custody pursuant to Family Court Act article 6, in which the mother cross-petitioned for modification of an order of the Family Court, Bronx County, dated May 2, 1986, granting the father custody of the parties’ daughter, the father appeals from a dispositional order of the Family Court, Nassau County, entered August 4, 1989, which, after a hearing, granted permanent custody of the parties’ two children to the mother.

A New York Divorce Lawyer said that, by petition dated April 12, 1988, the appellant, 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 the respondent mother “moved to the Bronx by herself”. However, the evidence adduced at the subsequent hearing reveals that the mother took her son with her when she left.

A Bronx Family Lawyer said that, in her cross petition dated March 29, 1988, the mother confirmed that until March 1988 she resided with the appellant along with their son and their daughter, who was born in 1982. She alleged that she left the appellant’s residence in March and that he refused to allow her to take her daughter with her. She requested modification of a prior order of the Family Court, Bronx County, dated May 2, 1986, pursuant to which custody of the daughter had been awarded to the appellant, and further requested permanent custody of the daughter. On July 27, 1988, the Family Court, Nassau County, granted temporary custody of Christopher to the mother. The daughter remained in the custody of the appellant. After a hearing, the Family Court, in the order appealed from, awarded permanent custody of both children to the mother.

Published on: September 19, 2014

Court Decides if Memorandum Issued by Probation Board is Valid

by Stephen Bilkis

A New York Family Lawyer said that, this distressing turn of events came to the attention of the court following a memorandum dated January 30, 1989 to the Probation Directors throughout the entire state from the counsel to the New York State Department of Probation and Correctional Alternatives. The memorandum sets forth a restricted procedure relating to adoption matters where the court is placed in the untenable position of designating the Probation Department as the agent of the court. This cumbersome procedure restricts Probation to a convoluted means of criminal investigative inquiry only by U.S. mail to the DCJS, and the reply by U.S. mail and not via NYSPIN; notwithstanding statutory and court rules requiring adoption investigations to be completed within thirty (30) days.

A New York Divorce Lawyer said that, the situation relating to custody matters is even more ludicrous. Since January 30, 1989, the Probation Departments may no longer access criminal history information under any circumstances in custody cases. The only alternative is the outrageous and unacceptable proposed procedure that the onus should be placed upon the court in each and every instance to issue court-ordered subpoenas directed to the DCJS to produce the report directly to the court. Thus, the clear inference of this proposed procedure amongst the various agencies would be that this report should be for the eyes of the court only, and not Probation. However, even if the procedure would allow for the court to make it available to Probation, it would be a protracted and ineffective procedure which would undermine the effectiveness of the Probation report, and impede their statutory obligation to conduct a full and complete probation investigation. Furthermore, it is not a proper function of the court to, in effect, become part of the investigative process and, in so doing, to even create the possible perception that the court is acting unfairly or prejudicial to either of the parties.

A New York Divorce Lawyer said that, apparently the Probation Department exhausted their persuasive efforts to resolve this dilemma by making further requests through the Division of State Police, as well as the Department of Justice in Washington, D.C., all to no avail. Thus, on February 8, 1989, a directive was issued by the Nassau County Probation Department that, inasmuch as they were being denied necessary access to criminal history of the parties via NYSPIN, their staff was directed not to make recommendations to the court in custody cases.

Published on: September 18, 2014

court Decides Case Regarding Termination of Parental Rights

by Stephen Bilkis

A New York Family Lawyer said this proceeding involves an appeal from an order of the Family Court of Columbia County entered 31 July 2007 which granted petitioner’s application in proceeding No. 1 pursuant to Family Ct Act article 10 to adjudicate respondent’s child to be neglected and from an order of said court entered 31 July 2007 which granted petitioner’s application in proceeding No. 2 pursuant to Social Services Law § 384-b to adjudicate the subject children to be permanently neglected and terminated respondent’s parental rights.

A and B (born in 2002 and 2004, respectively) were voluntarily placed by respondent in petitioner’s custody in February 2005. The parties agreed to a plan to locate and secure suitable housing for respondent and her children, as well as cooperate with petitioner in obtaining mental health services. This is so required by the petitioner as against the respondent to regain custody of her children. It also required that she participate in classes designed to enhance her parenting skills. Shortly thereafter, respondent, without giving notice to petitioner, relocated to New York City and, in December 2005, gave birth to a third child, C. In August 2006, Family Court determined that A and B were neglected children based upon respondent’s failure to keep petitioner informed of her address, as well as her failure to participate in preparing a plan for the children’s future or inquire about their status.

Thereafter, a New York Divorce Lawyer said that the New York County Department of Social Services commenced proceeding No. 1 pursuant to Family Ct Act article 10 to adjudicate C as a neglected child. C was temporarily removed from respondent’s custody and this proceeding was transferred to Columbia County. Petitioner then commenced proceeding No. 2 pursuant to Social Services Law § 384-b to adjudicate A and B to be permanently neglected. Family Court held a fact-finding hearing on both proceedings and ultimately found C to be neglected and A and B to be permanently neglected and terminated respondent’s parental rights with respect to A and B. Respondent now appeals.

Published on: September 17, 2014

Petitioner Brings Motion to Consolidate Two Separate Divorce Actions

by Stephen Bilkis

A New York Family Lawyer said that on 20 September 1969, petitioner and respondent were married in Cooperstown, New York. After residing in a trailer park in Sodus, New York, they bought a house and settled in Williamson, New York. Out of the marriage, four children were born- A and B, twins who are aged three, C, aged two, and D, aged one. On or about 20 May 1974, the parties separated and respondent left the marital residence with the children, and since then has been living with her mother in Fly Creek, New York.

On 19 June 1974, the wife filed a petition in Otsego County Family Court under Article 3–A of the Domestic Relations Law, seeking support for herself and the children from her husband. In due course, the petition was forwarded to Wayne County for action to be taken thereon. This Court was unable to obtain service of the first summons for appearance of the respondent on 31 July 1974. A second summons for appearance on 28 August 1974 was also unable to be served on the respondent, and a warrant was issued, which resulted in his appearance before this Court with counsel on 3 September 1974. The respondent was released on his own recognizance for appearance with his attorney at a subsequent date.

A New York Divorce Lawyer said that on 28 June 1974, AM caused a summons for divorce to be served on his wife by the Otsego County Sheriff. A complaint verified 9 August 1974, and apparently prepared by a substituted attorney, was served on PM, following the service of another summons for divorce served on her on 20 July 1974; the proof of service of the summons on 20 July indicates a complaint was also served, but this seems not to be fact, the complaint having been served later.

Published on: September 16, 2014

Court Examines Jurisdiction Issue in Custody Proceeding

by Stephen Bilkis

A New York Family Lawyer said this is a related child custody and visitation proceedings pursuant to Family Court Act article 6 wherein the mother, A, appeals, as limited by her brief, from an order of the Family Court Nassau County dated 10 March 2010, declining jurisdiction over the matter pursuant to Domestic Relations Law § 76-g, dismissing the petitions, and directing the parties to file any further requests for relief in the State of Florida.

The court reverses the judgment insofar as appealed from, on the law, with costs. The court reinstates the petitions pertaining to the subject child and the remits the matter to the Family Court, Nassau County for further proceedings.

A and B were never married but had a child together born in New York on 16 August 2004. Two months after the child’s birth, A and the child resided in New York and B resided in Florida. A filed petitions in New York seeking an order of filiation and an order of support, which relief was granted.

Published on: September 14, 2014

Plaintiff files for Order Directing Defendant to Leave Marital Home

by Stephen Bilkis

A New York Family Lawyer said that, in an action for divorce plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide child support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A Nassau Order of Protection Lawyer said that, when the motions were originally submitted on April 30 last, we discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, we referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. On June 9, 1971, a Judge of that Court, after a discussion with counsel, returned the matters to us for determination. We have received and carefully reviewed the transcript of the remarks made on that occasion. The Judge said that what the Justice wants this Court to do is to determine everything but the fact that the divorce is granted.’ Surely, if the Family Court granted an order of protection it would render moot the request for exclusive occupancy and that determination would in turn affect the allowance for support.

The issue in this case is whether the action for divorce plaintiff’s motion to give her exclusive possession of the marital home and restraining the defendant from removing property therefrom should be granted.