New York Family Law Blog

Published on: December 31, 2013

Court Rules on Child Molestation Case

by Stephen Bilkis

The Nassau County Department of Social Services filed amended child abuse and neglect petitions against the father on behalf of his children who was four years and two and one-half years old at the time.

A New York Family Lawyer said the petitions alleged that on numerous and diverse occasions occurring prior to about October 27, 1987, the father had put his penis in the four year old child’s private part, inserted his fingers in her private part, and touched the private part of the two year old child. The petitions alleged that all of these acts threatened and endangered both children’s emotional health, safety and well being.

The allegations of abuse, heretofore described, were based on out-of-court statements made by the two children. It is well settled that out-of-court statements of a child relating to allegations of abuse are admissible at a fact-finding hearing and, if they are properly corroborated by evidence tending to support their reliability, may support a finding of abuse. A New York Custody Lawyer said in the instant proceeding, the Family Court held that the validation testimony of a social worker constituted sufficient corroboration of the afore-noted allegations of abuse.

Published on: December 30, 2013

Wife Defends Custody Issue Based on Husband’s Bizarre Behavior

by Stephen Bilkis

A couple was married and had four children together. The husband left the marital residence and a divorce action was commenced the following month. A New York Family Lawyer said following a trial on the issues of equitable distribution, child support and maintenance, a memorandum decision was issued. Although the husband had stipulated to the wife having child custody, he moved for a change of child custody to him, with the wife to be given only supervised visitation based upon what he claimed to be the wife’s bizarre and dangerous behavior which was calculated to destroy the children’s relationship with him.

The husband referred to the wife’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the wife herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the wife’s bringing her to the hospital. A New York Custody Lawyer said the husband further noted the wife’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the husband’s view, a change in child custody was critical to the children’s well-being and mental health.

The wife opposed the application, and the matter was subsequently referred for a hearing. Since the original Law Guardian had died after having issued his report in the matrimonial matter recommending that the husband have unsupervised visitation, the court appointed a new Law Guardian for the children as well as a psychiatrist to conduct forensic examinations and to make a recommendation as to child custody.

Published on: December 28, 2013

Child Removed by Protective Services Due to Parent’s Drug Use

by Stephen Bilkis

A man is the biological father of a boy who was born in 1995. A New York Family Lawyer said the two have never lived together. Three weeks following his birth, the child was removed from his mother’s home by the Child Protective Services Unit of the County Department of Social Services (DSS) due to the fact that the mother had used cocaine during her pregnancy and the child tested positive for cocaine at birth. The mother was found to have neglected the child and her parental rights were ultimately terminated upon a finding of abandonment.

A New York Custody Lawyer said within one week following the child’s removal by DSS, the father filed the first of a series of petitions seeking child custody. A July 6, 1995 consent order granted the father supervised visits with the child upon his completion of a substance abuse evaluation and also provided that the father was to cooperate in obtaining a psychological assessment. On March 16, 1998, the father filed the petition in proceeding No. 1.

At the initial appearance on the petition following the appointment of counsel for the father, Family Court adjourned the matter so that the father could undergo a psychological evaluation. At the next appearance, DSS recommended, and Family Court ordered, that an extensive family assessment be conducted at Parsons Child and Family Center and also that the father submits to a full mental health evaluation. Although expressing considerable frustration with the repeated obstacles that Family Court was placing in his path, the father agreed to cooperate.

Published on: December 28, 2013

Court Listens to Child’s Input in Custody Arrangement

by Stephen Bilkis

A New York Family Lawyer said the former couple entered into a separation agreement by which the child’s custody was placed with the mother subject to visitation by the father. The Inferior Court incorporated the child custody agreement in its decree divorcing the parents at the suit of the mother. At that time the child was four years old.

The Special Term Court transferred child custody from her father to her mother on the basis of opposing affidavits, and on default of the father, but the court’s order was reversed. A New York Child Custody Lawyer said according to the Family Court Act, on a showing to the family court that a change of circumstances subsequent to the entry of an order of judgment by a court of competent jurisdiction not of the state of New York, fixing child custody in an action for divorce, separation or annulment, the family court shall proceed to determine an application to modify the custodial arrangement provided in such order or judgment.

Statutes and decisional law must afford justice to the child as she grows older and her environment and needs may change with the passing years. A Long Island Family Lawyer said to afford less to the child by adhering with rigidity to her custodial status fixed at the age of four, when she is eleven and if her best interests require a change, would be to impair her welfare which is the paramount concern of the decision as to her child custody.

Published on: December 27, 2013

Court Decides Possible Termination of Parental Rights

by Stephen Bilkis

A father was imprisoned and was ultimately sentenced to a determinate sentence of ten years upon his conviction for attempted robbery. While, the man was in prison his wife gave birth to their child.

A New York Family Lawyer said in order of filiation declaring the father was then entered and while he was incarcerated, he filed a request seeking visitation with his child, resulting in the issuance of an order of custody. The order provided that the mother would have the child custody and the father would have visitation at least once a month.

Subsequently, the child came into the care of the county’s department of social services as the result of an emergency removal. A New York Custody Lawyer said the child was then placed with foster parents. The department of social services subsequently filed a petition against the mother alleging that the child was a neglected child as a consequence of the mother’s substance abuse.

Published on: December 26, 2013

Social Services Seeks to Remove Child from Mother

by Stephen Bilkis

A New York Family Lawyer said that in July 2007, the Nassau County Social Services (SS) filed petitions against the respondent , seeking the removal of her two children. On the same date, the respondent filed petitions seeking the return of her sons pursuant to FCA § 1028. A hearing was held and respondent’s return petition was denied and the children remained in the custody of the Social Services.

A Nassau County Family attorney said that, the respondent consented to a finding of neglect in the underlying neglect petition. A New York Custody Lawyer said that the Order of Custody to SS was vacated, a one year Order of Supervision was entered and the children were returned to the respondent. The terms of the Order indicated that the respondent was to cooperate with SS and Preventive Services, and attend the PACT program. The respondent voluntarily placed the children in foster care, as she reported to be suffering from depression at that time. The children were placed in the home of a certified foster parent, where they continue to reside. The two children were three years old and ten months old at the time that they were placed in foster parent’s home.

The respondent gave birth to her third child. Thereafter, SS filed a neglect petition against the respondent, on behalf of this child. A Bronx Family Lawyer said the Children Services additionally filed neglect petitions against the respondent in Queens County, where the respondent had been living, regarding the same child. The Queens County Court paroled the child to the non-respondent father, with supervision by Children Services. Additionally, the Court issued a Temporary Order of Protection, which vacated the respondent from the home, prohibited the respondent from having any contact with the child if under the influence of drugs or alcohol and only allowed for agency supervised visits. Upon consultation with this Court, the case was transferred to Nassau County Family Court.

Published on: December 25, 2013

Court Decides Child Visitation Battle

by Stephen Bilkis

A New York Lawyer said in this Family case, an Appeal was filed by the nonparty-appellant from two orders of the Family Court, Suffolk County. By decision and order on motion, as amended, the Court (1) directed that residential custody of the subject child was to continue with the petitioner father, (2) prohibited the respondent mother from having overnight child visitation with the subject child or allowing any contact between the subject child and the mother’s paramour and his family, and (3) prohibited either parent from removing the subject child from Nassau County or Suffolk County, pending hearing and determination of the appeals, on condition that the record or appendix on the appeals from the orders and the nonparty-appellant’s brief was filed and served pursuant to CPLR 2103(b)(1).

A New York Custody Lawyer said that the nonparty-appellant has not perfected the appeals as set forth in the decision and order on motion of this Court.

Thus, the Court on its own motion, Ordered the following: THAT –

Published on: December 24, 2013

Father Seeks Custody in Light of Mentally ill Mother

by Stephen Bilkis

Plaintiff father and defendant mother were married in 2004 and are the parents of a daughter (born in 2005). Within weeks of her birth, the couple began experiencing marital difficulties, stemming from the father’s growing concern about the mother’s mental health. In January 2006, when the child was just five weeks old, the mother vacated the couple’s marital residence in Ulster County and traveled to Nassau County with the child. A New York Family Lawyer said the father immediately initiated a proceeding in Ulster County Family Court requesting joint custody of the child and an order prohibiting the mother from removing the child from the county. Family Court issued an interim order restricting the mother from leaving the state with the child and set a prompt return date.

A New York Child Custody Lawyer said that a flurry of litigation between the parties ensued. As relevant to this appeal, within days of the mother’s departure, each party commenced an action for divorce in Supreme Court, the father in Ulster County and the mother in Nassau County, each moving, by order to show cause, for an award of custody of the child. The actions were consolidated and venue was placed in Ulster County. The mother was initially granted temporary custody of the child, with supervised visitation to the father, and remained in Nassau County during the pendency of the action. Throughout the course of the litigation, the father sought and was awarded increased visitation with the child. By September 2007, when the child was 21 months old, the parties had stipulated to a temporary custody and visitation schedule which provided generous unsupervised and overnight visitation to the father. The parties agreed to proceed to trial on the issues of custody and visitation only. Following a 29-day trial, Supreme Court awarded the father sole custody of the child, with liberal visitation to the mother on a set schedule to continue at least until the child began pre-kindergarten. The mother appeals.

New York City Family Lawyer said the principal concern in any child custody dispute is the best interests of the child, to be determined “by reviewing such factors as ‘maintaining stability for the child, the child’s wishes, the home environment with each parent, each parent’s past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent'”. We accord great deference to Supreme Court’s factual findings and will not disturb the court’s custodial determination so long as it is supported by a sound and substantial basis in the record.

Published on: December 22, 2013

Court Decides on Executor’s Accounting

by Stephen Bilkis

A New York Family Lawyer said that, before the court is the first and final account of the Public Administrator of Nassau County for the estate of the decedent who died intestate, a resident of Great Neck, New York, on August 8, 2006. Letters of administration issued to the Public Administrator on April 19, 2007; the petition and account were initially filed on November 6, 2009. The petition identifies a combined total of 29 alleged maternal and paternal first cousins. A guardian ad litem was appointed by the court to represent the interests of decedent’s missing or unknown distributees. Kinship hearings were conducted before a referee on September 23, 2010 and November 16, 2010. Over 130 exhibits were admitted into evidence at the hearings, and an additional 14 exhibits were admitted after the hearing on the consents of counsel and the guardian ad litem. Testimony was taken from a professional genealogist and several members of decedent’s family, both blood relatives and those related by marriage.

A New York Custody Lawyer said that, the account as filed shows total charges of $830,114.16, and total credits of $123,505.94. The account was filed in November 2009 and must be brought current. The executor seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant. In addition, the court must address the outcome of the two kinship hearings, set the fee for the guardian ad litem and release the administrator from the surety bond.

A Nassau County Family Lawyer said that, the testimony at the kinship hearings and the exhibits admitted into evidence are testament to the extraordinary efforts expended by counsel to the Public Administrator, the genealogist, and the attorney for the claimants to identify all of the heirs of this very extended and extraordinary family. The court notes that the family tree prepared for the paternal side of the decedent’s family is nearly seven feet in length; the family tree for the maternal side is over ten feet in length. The court will also take judicial notice that records of vital statistics in the 19th and early 20th centuries for African-American families in the Deep South, where decedent and many of her ancestors and other relatives were born, are often incomplete or non-existent.

Published on: December 21, 2013

Mother Appeals Father’s Reduction in Child Support

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act, the mother appeals from an order of the County Family Court which denied her objections to so much of an order of the same court, as, after a hearing, granted that branch of the father’s petition which was for a downward modification of his child support obligation as set forth in a stipulation of settlement, which was incorporated but not merged into the parties’ judgment of divorce to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month, and, in effect, denied her cross petition for an upward modification of the father’s child support obligation.

A New York Family Lawyer said the order is reversed, on the law and the facts, with costs, the mother’s objections are sustained, so much of the order as granted the branch of the father’s petition which was for a downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $700 per month to the sum of $74 per month and, in effect, denied her cross petition for an upward modification of the father’s child support obligation is vacated, that branch of the father’s petition which was for a downward modification of his child support obligation is denied, the mother’s cross petition for an upward modification of the father’s child support obligation is reinstated, and the matter is remitted to the County Family Court for a hearing and new determination on the mother’s cross petition for an upward modification of the father’s child support obligation; and it is further ordered that pending a new determination, the child support provisions of the stipulation of settlement which were incorporated but not merged into the judgment of divorce are reinstated.

A New York Child Custody Lawyer said the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. Generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Here, the father did not establish that the parties’ stipulation of settlement was not fair and equitable when entered into, and further failed to establish a showing of an unanticipated and unreasonable change in circumstances. Accordingly, the father was not entitled to a downward modification of his child support obligation as set forth in the parties’ stipulation of settlement, and the mother’s objections regarding the downward modification should have been sustained.