New York Family Law Blog

Published on: June 29, 2013

Court Decides Constitutionality of Family Law Statute

by Stephen Bilkis

A New York Family Lawyer said when defendant was arraigned in this court on August 25, 1998, on a single count of aggravated harassment in the second degree, two separate non-family offense orders of protection were issued pursuant to CPL 530.13. Both were full stay-away orders protecting four named individuals. The matter was marked for conference and adjourned for two days, at which time the defendant requested a hearing to test the legality of the orders. A New York Custody Lawyer said that, when the matter was adjourned to this court, the People withdrew their prior consent and objected to holding the hearing, arguing that defendant did not have a right to an evidentiary hearing solely at his request. The matter was thereupon adjourned for submission of memoranda of law.

A Queens Family Lawyer said that, defendant’s motion challenges the constitutionality of CPL 530.12 and 530.13, arguing that the failure of these statutes to provide for an adversarial evidentiary hearing at defendant’s request before a temporary order of protection is issued or continued deprives defendant and others similarly situated of due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and article I, Â§ 6 of the New York Constitution.

The issue in this case is whether CPL 530.12 and 530.13 is constitutional.

Published on: June 28, 2013

Court Decides of Release of Firearms Appropriate

by Stephen Bilkis

This matter has had a convoluted history and presents a legislative “glitch.” A New York Family Lawyer said that during a contested divorce proceeding, the Family Court issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before the Judge. A New York Custody Lawyer said that, pursuant to the temporary order of protection, the Sheriff’s Department seized 26 guns belonging to the petitioner. Thereafter, on May 2, 2001, the Judge issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, the Judge withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.

Subsequently, Nassau County Family Lawyer said that, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by the Judge.

A Nassau Family Lawyer said that, on December 2, 2002, in compliance with this court’s order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection that the Judge had issued. Although the petition was unopposed, it was dismissed by the said Judge due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed. As a result, the matter was brought before this court by notice of motion for renewal of this court’s previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before the Judge, it was necessary for the court to conduct a hearing. A Nassau County Custody Lawyer said for the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.

Published on: June 27, 2013

Court Hears Domestic Violence Case

by Stephen Bilkis

In this assault case, the complainant and the defendant dated periodically for a period of time encompassing the past 13 years. A New York Family Lawyer said the instant charge stems when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx.

A Nassau County Family Lawyer said that the People detail the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time. Included are litanies of alleged violent acts directed at her by the defendant. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. A Nassau County Criminal Attorney said that the charges contained in the criminal complaint did not report the alleged crime to the police. Later, after other alleged incidents, the complainant reported this charge to the police along with four additional charges. Thereafter, the defendant was arrested for the above-listed crimes.

A Nassau County Custody Lawyer said the People are prepared to proceed to trial, and in so doing, argue that expert testimony would aid the jury in the understanding of the complainant’s delay in reporting the incident. Further, the People specifically emphasized that their expert would be called to give an opinion in support of their contention that the complainant suffers from battered woman syndrome. The People claim that the expert’s testimony will explain why the defendant abused in front of another and that the expert’s testimony is necessary to explain why the complainant waited nearly three months to report this incident.

Published on: June 26, 2013

Court Discusses the “Cycle of Violence”

by Stephen Bilkis

This case presents the Court with a repetitive issue confronting domestic violence parts in the courts. The complaining witness/victim, of domestic violence now wishes to recant their testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.

A New York Family Lawyer said that, the defense counsel moves post-conviction and post-sentencing for the above relief on three separate dockets after the defendant in a negotiated plea was convicted and sentenced to forty-five (45) days in jail, three (3) years of probation and a “stay away” order of protection in favor of complainant. More specifically, the defendant in this case pled guilty to one count of Penal law §120.45(2), stalking in the fourth degree, another count of Penal law §215.50(3), criminal contempt in the second degree while the count of Penal law §240.30(1), aggravated harassment in the second degree was dismissed in satisfaction.

A New York Custody Lawyer said the issue in this case is whether defendant’s motion modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the herein order of protection should be granted.

Published on: June 25, 2013

Domestic Violence Victim Charged with Neglect

by Stephen Bilkis

In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York’s statutory scheme for child protective proceedings. The action was brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.

A New York Family Lawyer said that, respondent mother, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983, against the New York City Administration for Children’s Services (ACS). The action was later consolidated with similar complaints by the three named plaintiff mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they “engaged in domestic violence” and that defendants removed and detained children without probable cause and without due process of law. That policy and its implementation according to plaintiff mothers constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution. A New York Child Custody Lawyer said that, in August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A), and their children (Subclass B). For each plaintiff, at least one ground for removal was that the custodial mother had been assaulted by an intimate partner and failed to protect the child or children from exposure to that domestic violence. In January 2002, the District Court granted a preliminary injunction, concluding that the City may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer”.

A Bronx Family Lawyer said that, the court found that ACS unnecessarily, routinely charged mothers with neglect and removed their children where the mothers who had engaged in no violence themselves had been the victims of domestic violence; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court; that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency’s written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year.

Published on: June 23, 2013

Husband is Charged with Harrassment

by Stephen Bilkis

The Defendant is charged by Prosecutor’s Information with violating Penal Law §240.25, Harassment in the first degree as a Class B Misdemeanor. The allegations involve the Defendant allegedly threatening his wife, by saying, in different occasions, the phrases “I’m going to slit your fucking throat,” and “You ever talk about my mother, I’ll put a bullet in your fuckin head.” A New York Family Lawyer said that, in her Supporting Deposition the Complainant also alleges that the Defendant threatened her by stating “I’m going to chop you up and spread you on the highway.” The Complainant alleges four other instances of threats of physical domestic violence including allegations that the Defendant has thrown chairs at her. In the domestic Incident report the Complainant alleges being in fear of physical injury from her husband.

A Nassau County Criminal Attorney said that, defendant moves for various discovery relief and moves that the Court to inspect the Grand Jury minutes regarding this matter and to dismiss the Prosecutor’s Information after said review. Finally, Defendant moves the Court to dismiss the information against him pursuant to C.P.L.§100.15 and 100.40 based on the assertion that the information is facially insufficient. The People join in the Defendant’s motion to dismiss the complaint.

The issue to be resolved in this case is whether or not the information filed is sufficient.

Published on: June 23, 2013

Court Hears Petition Regarding Allegations of Mother’s Neglect

by Stephen Bilkis

The order appealed from is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to Family Court for further proceedings in accordance with the Memorandum that Family Court erred in determining that the petitioner mother failed to prove by a preponderance of the evidence that the children who are the subject of the proceeding are neglected children based upon domestic violence between the respondent father and the mother of the children and in therefore dismissing the petition. The court notes at the outset that the respective Attorneys for the Children did not take an appeal from the order, and thus to the extent that their briefs raise contentions not raised by the petitioner mother, they have not been considered.

A New York Family Lawyer said that upon review of the record, the petitioner established by a preponderance of the evidence that the children were in imminent danger of emotional impairment based upon the alleged incidents of domestic violence between the children’s mother and the respondent. In connection with her admission in the separate neglect proceeding brought against her, the mother admitted that she and the respondent had several disagreements and arguments in the presence of the children and that sometimes the children were afraid. The respondent father failed to appear at the instant fact-finding hearing, and thus the court draw the strongest inference against her that the opposing evidence permits based upon her failure to testify at the hearing.

According to the evidence presented at the fact-finding hearing, when the police responded to the residence on a specified date, both the mother and the respondent admitted that they had been engaged in a loud argument in the living room, during which they struck each other. The police officer observed a scratch on the mother’s neck, which the mother admitted she received while she and the respondent were fighting. The police officer further observed that the one-year-old child (younger child) was crying in a bedroom, and he described the child as shook up and scared. The court conclude that the younger child’s proximity to the physical and verbal fighting that occurred in the living room, together with the evidence of a pattern of ongoing domestic violence in the home, placed him in imminent risk of emotional harm.

Published on: June 22, 2013

Administration for Child Service Files Petition for Neglect of Six Children

by Stephen Bilkis

On November 8, 2010, ACS (Administration for Children’s Services) filed petitions against a mother alleging that her six children were neglected children pursuant to Family Court Act. At that time, the youngest child was a new-born and the oldest child, was 16 years old. A New York Family Lawyer said five of the children were living with their mother in New York City having recently relocated from Washington, D.C. A 14 year old daughter had returned to Washington D.C., after coming to New York City briefly with her siblings when they relocated.

The petitions alleged that the respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the school-age children were not enrolled in school in New York City during the 2010 2011 academic year until October 14, 2010. Additionally, the petitions alleged that the respondent misused marijuana; that she gave birth with a positive toxicology for marijuana and that she was not participating in a drug treatment program. A fact-finding hearing was conducted before the Court.

A New York Custody Lawyer called ACS called two witnesses on their direct case, the caseworker and the respondent mother. In addition ACS introduced a number of documents into evidence. These included oral report transmissions dated November 3, 2010 and November 4, 2010 as well as the hospital records for the mother and the baby.

Published on: June 21, 2013

Petitioner Claims Respondent Violated Order for Protection

by Stephen Bilkis

The petitioner spouse filed a supplemental petition alleging that the respondent failed to obey the modified order of protection issued by the court. A New York Family Lawyer said the supplemental petition alleged that the respondent, upon release from incarceration for prior violation of the order of protection, arrived at the petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to the petitioner’s residence and subsequently on March 11, 1994, that a car belonging to a friend was towed from the petitioner’s driveway, and the petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found the respondent had filed a complaint and stated to be the owner of the property and claimed that the car was illegally parked and have the car towed.

A warrant was issued for the respondent’s arrest. The respondent was returned on the warrant on March 21, 1994, and issue joined. A New York Custody Lawyer said the hearing was held and at the conclusion of the hearing the court made two findings beyond a reasonable doubt to wit that the respondent willfully violated the final order of protection by attempting to gain entry to the petitioner’s residence and that the respondent willfully violated the final order of protection by having a vehicle lawfully parked on the petitioner’s property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner.

At the dispositional phase of the supplemental proceeding brought pursuant to Family Court Act 846, the court based on the prior history of family offense activity perpetrated upon the petitioner by the respondent; the fact that the respondent had been committed previously by a County court to incarceration for one hundred and eighty days; that the respondent apart from that commitment, had been civilly committed by the court for willful violation of the order of protection to incarceration for six months; that the respondent upon release from his most recent commitment had almost simultaneously violated the order of protection again; that the respondent’s behavior indicated an intractable design to continue to annoy and harass the petitioner; and considering the welfare not only of the petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation and of four months for the finding of violation occurring on March 11, 1994, to run consecutively.

Published on: June 20, 2013

Court Hears Case Regarding Termination of Parental Rights

by Stephen Bilkis

This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law against respondent mother (RM) in connection to her child, FA, four years old. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness. A New York Family Lawyer said the Court held a fact finding hearings and on June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

Petitioner presented the testimony of doctor, qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a doctor, a qualified expert in the field of forensic psychology, and RM who testified on her own behalf.

A New York Custody Lawyer said the underlying child protective proceeding in this case involves the brutal murder of the child, AB, by RM’s ex-paramour, on November 21, 2001. A severe & repeated abuse petition, brought on behalf of the deceased child’s surviving half-sibling, JB, was filed against RM and her ex-paramour, JL, pursuant to the Family Court Act. Thereafter, a finding of severe & repeated abuse by clear and convincing evidence was entered against them both on June 10, 2003.