New York Family Law Blog

Published on: February 18, 2014

Court Decides Termination of Parental Rights Proceeding

by Stephen Bilkis

A New York Family Lawyer said by amended petition, the petitioner alleges that the child is an abused and neglected child within the meaning of Family Court Act. The petition further alleges that the respondent woman is the mother of the child and that the man, a non-respondent in this proceeding, is the child’s putative father. More specifically, the amended petition alleges, in pertinent part, that the court found that woman has abused and neglected her son based upon the fact that her daughter drowned in a bathtub while in the care of the mother. The respondent mother admitted to leaving the child unattended in the tub of water for several minutes and she was ultimately convicted of manslaughter for the death of the child. The court entered a dispositional order directing the respondent to complete domestic violence counseling, individual counseling and family counseling, but she has failed to do so. In addition, a termination of parental rights proceeding is pending against the mother in Family Court with respect to the child Sean. In addition, the petitioner alleges that the respondent mother suffers from a chronic and severe mental illness and that, due to that mental illness, the child is at risk of becoming an abused and neglected child.

A New York Child Custody Lawyer said the initial appearance upon the petition was conducted on April 3, 2002. On that date, the respondent mother appeared before another Family Court Judge who assigned the counsel to the respondent, issued an order paroling child custody to her putative father and directed that the respondent have only supervised visitation with the child. Thereafter, the Commissioner filed the amended petition.

A Nassau County Family Lawyer said that prior to the filing of the child protective petition, a petition had been filed against the mother pursuant to Social Services Law by the Children’s Services, an authorized child care agency, seeking termination of her parental rights to her son, an older half-sibling of the child. That petition alleged that the mother was mentally ill within the meaning of Social Services Law and that she had permanently neglected her son within the meaning of Social Services Law. In connection with the termination of parental rights proceeding, the County court directed that the respondent woman be examined by a licensed psychologist on the staff of the Court Mental Health Services Clinic.

Published on: February 17, 2014

Petitioner Brings Case to Collect Back Child Support

by Stephen Bilkis

A New York Family Lawyer said the decree of divorce was entered to dissolve the bonds of matrimony existing between a couple, restoring each to the status of a single person, awarding to the mother the care, custody and control of their minor children, and directing the father to pay to the mother $10 a week for the care, maintenance and support of each minor child.

The divorce decree was based on the ground of three year’s separation obtain by the mother with the father’s agreement by his execution and filed waiver, and appearance in the action.

The mother shortly remarried and her children remained with her. The step father appeared to be close to them and have had almost no contact with the father over the intervening years.

Published on: February 16, 2014

Court Discusses Termination of Parental Rights Based on Neglect

by Stephen Bilkis

A New York Family Lawyer said 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. Since that time, due to his multiple handicaps, the child has been placed into six different foster homes.

A permanently neglected child is defined as one who is in the care of an authorized agency and whose parent has failed for a period of more than one year substantially and continuously or repeatedly to maintain contact with or plan for the future of the child notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship. It has been said that in a proceeding to terminate parental rights based on permanent neglect, the threshold consideration is whether the agency has discharged its statutory obligation to exercise diligent efforts to encourage and strengthen the parental relationship.

Moreover, a New York Child Custody Lawyer said when the child care agency has custody of the child and brings the proceeding to terminate parental rights, it has the burden of establishing its diligent efforts by clear and convincing evidence. An agency which has tried diligently to reunite a mother with her child but which is confronted by an uncooperative or indifferent parent is deemed to have fulfilled its duty.

Published on: February 15, 2014

Court Discusses Case Involving Child Endangerment

by Stephen Bilkis

A New York Family Lawyer said an institution for children’s welfare requested to the court a decision without trial against a mother asserting that there are no genuine issues of fact. They also request for an order finding that the child is a neglected child and his sibling, a derivatively neglected child.

In support of the motion, the complainant submitted the transcript from a criminal court proceeding, containing the mother’s allocution to the endangering of the welfare of a child and her acknowledgment that on one occasion she hit her child with an open hand causing a bruise or a black eye, but no injury.

The aforementioned matter started when the institution filed a neglect petitions against a mother alleging that her child was a neglected child because the mother inflicted excessive corporal punishment against him, causing the child to sustain a bruises to his right eye. In addition, the petitions allege that the child reported that his mother has beaten him on prior occasions with a belt.

Published on: February 14, 2014

Mother Accused of Neglect During Divorce Proceedings

by Stephen Bilkis

A New York Family Lawyer said in two related proceedings pursuant to Family Court Act, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County, as, after a fact-finding hearing, found that she neglected the subject children and placed them in the custody of the Commissioner of Social Services of Kings County until the completion of the next permanency hearing.

A New York Custody Lawyer said the order is modified by deleting the provision thereof placing the subject children in the custody of the Commissioner of Social Services of Kings County, the order is affirmed as appealed from without costs or disbursements, and the matter is remitted to the Family Court for a dispositional hearing and a new disposition thereafter.

The findings of neglect as to the subject children were supported by a preponderance of the evidence. The mother’s contention that the Family Court deprived her of due process by limiting her testimony as to the skin condition of one of the children is unpreserved for appellate review, as it was not raised before the Family Court, and, in any event, is without merit.

Published on: February 13, 2014

Father Appeals Custody and Visitation Ruling

by Stephen Bilkis

A New York Family Lawyer said in a custody and visitation proceeding, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County, as, after a hearing, granted those branches of the separate motions of the mother and the subject children which were to dismiss that branch of his petition which sought to modify an order of custody and visitation on consent of the same court, so as to award him reasonable visitation with the subject children, and dismissed that portion of the proceeding.

A New York Child Custody Lawyer said that the subject children resided in California until the mother relocated with them to New York. In 2008, the mother filed a petition for sole legal and physical custody of the children. The father, who remained in California, submitted a sworn written response, wherein he consented to the mother’s custody of the children, who reportedly have special needs, but requested visitation.

Thereafter, an order of custody and visitation on consent was thereafter issued by the Family Court, awarding custody to the mother, and liberal but unspecified visitation to the father, “as the parties arrange and agree.” Two years later, the father commenced the instant proceeding by filing a petition requesting custody of the children or, alternatively, reasonable visitation. A hearing was held and, at the close of the father’s case, the mother and the subject children moved to dismiss the petition. The Family Court granted the motions, and dismissed the proceeding in its entirety. On appeal, the father challenges the dismissal of that branch of his petition which was for an award of reasonable visitation.

Published on: February 12, 2014

Father Appeals Child Support Order for Lack of Jurisdiction

by Stephen Bilkis

A New York Family Lawyer said this is a child support proceeding pursuant to Family Court Act article 4 where the father appeals from the order of the Family Court of Kings County dated 7 October 2009 granting the mother’s objection to an order of the same court dated 12 December 2008 dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction to the extent of vacating the order dated 12 December 2008 and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction; and, the mother cross-appeals from the order dated 7 October 2009 granting her objection to the order dated 12 December 2008 only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

The order dated 7 October 2009 was affirmed insofar as appealed from, without costs or disbursements; and, the order dated 7 October 2009 was reversed insofar as cross-appealed from, on the law, without costs or disbursements, the mother’s objection was granted in its entirety, the order dated 12 December 2008 was vacated, and the matter was remitted to the Family Court of Kings County for further proceedings on the merits of the mother’s petition for an upward modification of child support.

A New York Child Custody Lawyer said the specific events that took place are as follows:

Published on: February 12, 2014

Guardian Seeks to Terminate Parental Rights

by Stephen Bilkis

The law guardian, on behalf of the subject child, moves to vacate a judgment, terminating the natural mother’s parental rights. The sole basis for the law guardian’s motion is that the subject child, now fourteen years of age, does not wish to be adopted by his maternal aunt with whom he has lived since the age of seven, in light of his affection for his mother. Initially, the law guardian cited no statutory basis for her motion.

A New York Family Lawyer said that the petitioner argues further that none of the statutory bases established by CPLR 5015 applies in this case. Petitioner contends that the only conceivable statutory ground for setting aside the judgment would be the existence of newly discovered evidence, which had it been introduced at trial, would probably have produced a different result. Petitioner further contends that the child’s change of mind regarding adoption is not evidence which would probably have produced a different result had it been introduced at the dispositional hearing on the petition to terminate the mother’s parental rights. The law guardian contends that the child’s change of mind is evidence of the sort which requires a new dispositional hearing, if not a dismissal of the termination petition.

Procedurally, a New York Child Custody Lawyer said the court concludes that Petitioner’s contention that the proceeding is governed by CPLR 5015, is correct. Although the law guardian contends that this court has inherent authority, under the doctrine of parens patriae, to set aside the previous judgment in the best interest of the subject child, the court’s powers are strictly defined and delimited by statute. Nothing in the Family Court Act or the Social Services Law authorizes the court to vacate a judgment committing custody and guardianship to a petitioning agency, once the judgment is entered. Unlike article 10 of the Family Court Act, which contains specific statutory authority to set aside, modify or to vacate any order issued in the course of a proceeding under that article, no such authority is conferred by any provision of Family Court Act article 6, which governs proceedings to terminate parental rights for permanent neglect of the subject child.

Published on: February 11, 2014

Court Decides Custody in Light of Fathers Drug Use

by Stephen Bilkis

A New York Family Lawyer said that from 28 June 2006 to 3 July 2006, respondent father was admitted to W Hospital where he was diagnosed with psychotic disorder not otherwise specified, poly-substance dependence, substance induced psychotic disorder, borderline and anti-social personality traits. Following hospitalization, respondent father failed to take his prescribed medication (risperdal and klonopin), or obtain psychiatric treatment.

On 15 April 2007, respondent father committed acts of domestic violence against respondent mother in the presence of the child. Consequently, he was arrested and charged with assault in the third degree, attempted assault in the third degree, menacing in the third degree and harassment in the second degree. On 20 July 2007 and 4 October 2007, respondent father violated the order of protection issued by the Criminal Court in that he was observed in the presence of respondent mother. He was thereafter charged with two counts of criminal contempt in the second degree.

A New York Custody Lawyer said that the respondent father had a history of marijuana use as proven by his testing positive for that substance on 19 May 1998, 12 June 1998 and 29 May 2006.

Published on: February 11, 2014

Father Claims Lack of Jurisdiction in Child Support Hearing

by Stephen Bilkis

A New York Family Lawyer said in a child support proceeding pursuant to Family Court Act article 4, the father appeals, by permission, as limited by his brief, from so much of an order of the Family Court, Kings County, as granted the mother’s objection to an order of the same court, dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction, to the extent of vacating the order, and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction, and the mother cross-appeals, by permission, as limited by her brief, from so much of the order, as granted her objection to the order, only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.

A New York Custody Lawyer said that the mother, who at the time resided in Ithaca, filed a petition in the Family Court, Tompkins County, for child support with respect to the parties’ child. At the time, the father resided out of state. Pursuant to an order, the Family Court, Tompkins County, directed the father to pay the mother certain child support. Thereafter, the mother, who stated that she was residing in Brooklyn, filed a petition in the Family Court, Kings County, for an upward modification of child support against the father, who continued to live outside of New York State.

The father argued, inter alia, that the Family Court lacked subject matter jurisdiction to modify the child support, because New York had not remained the “residence” of the mother and/or the parties’ child for purposes of Family Court Act § 580-205(a). In an order, the Support Magistrate dismissed the mother’s petition on that ground. The mother filed an objection to the Support Magistrate’s order, arguing that the record developed before the Support Magistrate established that the Family Court had subject matter jurisdiction and that her petition for an upward modification should be heard and determined on the merits.