New York Family Law Blog

Published on: April 21, 2014

Petitioner Discovers Previous Divorce Proceedings Never Finalized

by Stephen Bilkis

A New York Family Lawyer said a husband and wife, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of the said marriage, the wife believed that she had been divorced from her prior husband with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce which incorporated but did not merge with the Agreement. This notwithstanding, the husband and wife lived as husband and wife with the son of the prior marriage and on May 15, 2001, they had the child subject to this proceeding.

Difficulties apparently ensued between the couple in 2004, prompting the wife a practicing attorney to commence child custody, family offense and child support proceedings against her husband in Nassau County Family Court. A Temporary Order of Protection was issued in the wife’s favor. There was Child Protective Services involvement with the family. The Family Court entered a Temporary Order of Support ordering the husband to pay temporary support and child care expenses in the sum of $486 biweekly to the wife. The husband was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

Shortly thereafter, a New York Custody Lawyer said the husband commenced an Action for Annulment against the wife in the District Court of Clark County in the State of Nevada, on the grounds that the wife was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the wife failed to answer or appear on that action and a default was declared against her. The Judicial District Court issued a Decree of Annulment declaring the second marriage to be null and void and of no effect, and restoring each of the parties to the status of a single unmarried person. Relevantly, the Decree also adjudged and decreed that each party be awarded his or her property as determined in accordance with Nevada law and that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her.

Published on: April 20, 2014

Father Petitions for Custody of Child Born Out of Wedlock

by Stephen Bilkis

A New York Family Lawyer said this proceeding involves a natural father’s effort to gain child custody of his daughter born out of wedlock, from the respondent Nassau County Department of Social Services to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

Meanwhile, a New York Custody Lawyer said only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought child custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for child custody of his daughter. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

A Queens Family Lawyer said the critical issue presented is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child’s best interests. In denying the petitioner father’s application for child custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing child custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.

Published on: April 19, 2014

Father Petitions to Obtain Custody of Child Born Out of Wedlock

by Stephen Bilkis

A New York Family Lawyer said that, in a child custody proceeding pursuant to Family Court Act article 6 for custody of the subject child, the petitioner appeals from an order of the Family Court, Nassau County, dated April 27, 1989, which, after a hearing, dismissed the petition.

A New York Custody Lawyer said that this proceeding involves a natural father’s effort to gain custody of his daughter born out of wedlock on July 31, 1988, from the respondent Nassau County Department of Social Services (hereinafter the Department) to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The subject child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

A Staten Island Family Lawyer said that, meanwhile, on August 5, 1988, only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for custody of his daughter on September 8, 1988. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded, inter alia, that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

Published on: April 18, 2014

The issue in this case is whether the writ of habeas corpus should be granted.

by Stephen Bilkis

A York Family Lawyer said that, this proceeding was originated by the Petition for a Writ of Habeas Corpus of, filed in the Franklin County Clerk’s office on November 29, 2010. Petitioner, who is an inmate at the Bare Hill Correctional Facility, purported to challenge his continued incarceration in the custody of the New York State Department of Correctional Services. More specifically, petitioner asserted an entitlement to 717 additional days of jail time credit. He further asserted that with the application of such additional credit the conditional release date of his 4-year determinate sentence would have been reached on September 11, 2010.

A New York Custody Lawyer said that, the Court issued an Order to Show Cause on December 9, 2010 and as a part thereof this proceeding was converted into a proceeding for judgment pursuant to Article 78 of the CPLR. An Amended Order to Show Cause was issued on April 12, 2011. The Court has since received a reviewed the Answer and Return of the respondent verified on May 27, 2011, supported by the Letter Memorandum of an Assistant Attorney General, dated May 27, 2011. The Court has also received and reviewed the Answer of the other respondent dated May 26, 2011, supported by the Memorandum of Law of the Deputy Nassau County Attorney, dated May 27, 2011. Finally, the Court has received and reviewed petitioner’s Reply to both sets of answering papers, filed in the Franklin County Clerk’s office on June 9, 2011.

A Staten Island Family Lawyer said that, on January 7, 2010 petitioner was sentenced in Supreme Court, Nassau County, as a second felony offender, to a controlling determinate term of 4 years, with 3 years post-release supervision, upon his convictions of the crimes of Criminal Sale of Controlled Substance 3° and Criminal Possession of a Controlled Substance 7. The offenses underlying such conviction s were apparently committed in January of 2007. Petitioner was received into DOCS custody on April 8, 2010, certified by the respondent as entitled to 397 days of jail time credit (Penal Law §70.30(3)). DOCS officials currently calculate the maximum expiration and conditional release dates of petitioner’s sentences as March 5, 2013 and August 7, 2012, respectively. Petitioner asserts that he is entitled to an additional 717 days of jail time credit covering the period he was under Nassau T. A. S. C. [Treatment Alternatives to Street Crime] supervision, which was court mandated pursuant to petitioner’s plea agreement.”

Published on: April 17, 2014

Court Decides Private Placement Adoption

by Stephen Bilkis

In these private placement adoption proceedings, infants were placed with prospective adoptive parents in violation of the Interstate Compact on the Placement of Children and New York’s laws requiring certification of prospective adoptive parents as “qualified adoptive parents”.

Inexplicably, the administrator of the Interstate Compact gave approval for the placements.

A New York Family Lawyer said that, in the first case, petitioners hired a California attorney and two New York attorneys to assist them in attempting to adopt a child. On the advice of their first New York attorney, they caused a pre-placement investigation to be undertaken in August, 1990, and a certified social worker completed the investigation of them that same month. Petitioners retained present counsel in November, 1990. Although present counsel advised them to initiate New York’s certification process immediately, they waited until May 21, 1991 to file a petition for certification. They submitted with the petition a copy of the 1990 pre-placement investigation, a financial statement showing them to own more than 5 million dollars in property, and a copy of their 1989 tax return showing them to have an income of $1,500,000. The tax return lists as residents of the State of Connecticut. The date the certification petition was filed, the court ordered a report on them from the Statewide Central Register of Child Abuse and Maltreatment.

Published on: April 17, 2014

The issue in this case is whether the Supreme Court erred in holding that the Department must accept prisoners within 10 days after they are State-ready.

by Stephen Bilkis

A New York Family Lawyer said that, this CPLR article 78 proceeding was originally commenced by 43 of New York’s 58 County Sheriffs, all of whom are responsible for the operation of jails and local correctional facilities within their respective counties. Six additional Sheriffs were later joined as petitioners.

A New York Child Custody Lawyer said the respondents include representatives of the Department of Correctional Services, which is charged with the responsibility of accepting and keeping all persons sentenced to a term of imprisonment in a State correctional facility, the Commission of Correction, which oversees all correctional institutions in the State and promulgates rules and regulations establishing minimum standards for the care of persons confined therein, and the State Division of Parole, which is responsible for the supervision of persons paroled from State correctional facilities.

A Suffolk County Family Lawyer said the genesis of the dispute is the recognized problem of overcrowding in the prison system of this State. Generally, where a defendant in a criminal action is incarcerated prior to conviction and sentencing, the individual is confined at the local correctional facility of the county in which the action is pending. After sentencing, the defendant is committed to the custody of the Department and is ultimately assigned to a State correctional facility. After sentencing, there is some delay while certain paperwork is processed before the prisoner is “State-ready”. Because of cost and lack of space, the County Sheriffs want the Department to accept prisoners as soon as they become State-ready. The problem is compounded by the fact that the Commission has promulgated regulations, which apply to both county and State facilities, establishing maximum capacity. In some circumstances, County Sheriffs, faced with a delay by the Department in accepting State-ready prisoners and maximum capacity in their correctional facilities, are forced to house prisoners in other counties’ facilities at a great cost to the county. Finally, the Sheriffs contend that the Division of Parole unreasonably delays the processing of alleged parole violators, who remain in county facilities until their parole is formally revoked and they, thus, become State-ready.

Published on: April 16, 2014

Paternal Aunt Seeks Custody of Children

by Stephen Bilkis

A New York Family Lawyer said that, on September 22, 1965 the parents of the foster children at bar, who are minors under the age of fourteen years, died in Jacksonville, Florida, where the parents and children had been domiciled. On September 25, 1965, petitioner herein, who is the children’s paternal aunt, together with her mother, who is the paternal grandmother, left Florida with the children for her home in Nassau County where they have since resided. Petitioner, who resides with her mother, had left her home in Nassau County for Florida on September 23, 1965 because of the sudden deaths of the children’s parents. Upon arriving in Jacksonville, petitioner had met with the objectants, the children’s maternal grandparents, who had been summoned from their home in Columbus, Georgia. Objectant mistakenly relying upon an improperly executed will signed by her daughter who had attempted to appoint petitioner the children’s testamentary guardian, on September 24, 1965 told petitioner, in substance, that petitioner would have shared custody of the children. On the same day, petitioner and her mother advised a judge of the County Judges’ Court for Duval County, Florida, in which Jacksonville is located, that they intended to take the children to their home in New York. The judge stated that, because no one else claimed custody of the children, he did not detect any objection to petitioner’s plan. We indicate the nature of the initial acquisition of the physical custody of the children by petitioner and her mother in order to emphasize that their conduct therein was not tainted by any unlawful or duplicitous act.

A New York Custody Lawyer said that, on December 1, 1965 objectants, still domiciliaries of Georgia, filed a petition in the county Judges’ Court for Duval County, Florida, seeking physical custody of the children. On January 24, 1966 petitioner filed the adoption petitions at bar in the Surrogate’s Court, Nassau County. On February 11, 1966 petitioner and others filed an answer in the Florida court objecting to the petition therein on the ground, Inter alia, that the adoption proceeding herein was pending before the Surrogate’s Court. On April 4, 1966 objectants filed their objections to the petitions at bar and, on April 28, 1966 a hearing was held thereon in the Surrogate’s Court. On May 4, 1966 the Florida court made an order granting custody to objectant during the Christmas and summer vacations from school and to petitioner during the remainder of the year and appointing petitioner and said objectant joint guardians of the persons of the children. However, on June 23, 1966 the decree now under review was made, dismissing the objections to and granting the adoption petitions at bar.

A Westchester County Family Lawyer said that, the objectants argue that (1) the Federal Constitution requires that full faith and credit be given to the Florida order with respect to its provisions concerning full custody and guardianship and (2) the adoption is void because the consent of a person or authorized agency having lawful custody of the children had not been obtained. At the time of the entry of the adoption decree, petitioner, as the children’s paternal aunt, did not have their lawful custody, as that custody is defined by section 109, subdivision 6, of the Domestic Relations Law, for she neither was their natural guardian nor had she been appointed their guardian by a New York court.

Published on: April 15, 2014

Court Decides Case Regarding Request for Class Action

by Stephen Bilkis

A New York Family Lawyer said in this case, petitioners appeal from so much of a judgment, as denied their request for class action treatment and dismissed so much of their consolidated proceedings as challenged the respondents’ 22-hour per day lock-in policy with respect to certain pretrial detainees.

A New York Custody lawyer said that initially the respondents argue that because none of the named appellants is at the present time incarcerated at the Correctional Center, this matter should be deemed academic and the appeal dismissed.

The Court disagreed inasmuch as the lock-in of pretrial detainees will doubtless recur and because the questions presented on this appeal are of substantial importance and general interest.

Published on: April 14, 2014

Wife Contends Husbands Suit Lacks Subject Matter Jurisdiction

by Stephen Bilkis

In a matrimonial action in which the plaintiff wife was granted a divorce, she appeals from so much of an order of the Supreme Court, Nassau County, as denied her cross motion, inter alia, to “dismiss” defendant’s motion for custody of the infant issue of the marriage upon the ground of lack of subject matter jurisdiction.

A New York Family Lawyer said that the parties, who had resided with their two minor children in Nassau County, were divorced by a judgment of the Supreme Court, Nassau County. The judgment incorporated an earlier separation agreement, which was to survive the judgment. The agreement provided, inter alia, that plaintiff would have “principal custody” of the two children and defendant would have certain visitation rights. The agreement also provided that each party could live wherever he or she chose.

A New York Custody Lawyer said that defendant moved for custody of the children and other relief at Special Term early in 1979, alleging that plaintiff had interfered with his visitation rights. The court found that plaintiff had interfered with defendant’s rights by removing the children to California and Florida and that she had decided, without consulting defendant, to move to California permanently with the children.

Published on: April 14, 2014

Defendant Contends Court Lacked Foundational Requirements for Admission of Evidence

by Stephen Bilkis

In this case, defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192(4), Driving While Ability Impaired by Drugs as an Unclassified Misdemeanor.

A New York Family Lawyer said that in October 2005, a civilian witness called 911 from his mobile phone and reported that he observed another vehicle operating in an erratic manner on Wantagh Avenue, in Levittown, County of Nassau. He pulled the other vehicle over and waited for the Police to arrive. A Police officer, a Sergeant Shea of the Nassau County Police Department arrived at the scene shortly thereafter. He testified that he spoke with the civilian witness and the defendant and noticed that defendant appeared nervous and disheveled. He also testified that the defendant was unsteady on her feet and seemed impaired in some way. As a result of the defendant’s appearance, the Sgt. requested that the defendant submit to Standardized Field Sobriety Tests (S.F.S.T.). The Sgt. explained that S.F.S.T. are divided attention tests which are used nationwide by Police departments to determine if someone is intoxicated or impaired by drugs. After observing the defendant’s performance on the S.F.S.T., the Sgt. arrested the defendant for Driving While Intoxicated and brought her to the Central Testing Section of the Nassau County Police Department in Mineola for processing and testing.

A New York Child Custody Lawyer said the Sgt., upon arriving at Central Testing he requested that the defendant submit to a chemical test of her breath to determine the level of alcohol in her blood. The defendant consented to the breath test and the breath test was administered to the defendant. He requested that the defendant submit to a urine test to determine what, if any, drugs were in her blood. The defendant consented to the urine test. The defendant went into a bathroom with a female Police Officer and an empty urine container. When the defendant came out of the bathroom, the urine container was filled with a liquid. The Sgt. testified that he sealed the urine container with red evidence tape and affixed to it a label with the defendant’s name. The urine container was later brought by Sgt. Shea to the Police lab and locked in the Toxicology refrigerator.