New York Family Law Blog

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.

Published on: June 19, 2013

Petitioner Seeks to Remove Order of Protection Against Him

by Stephen Bilkis

Petitioner is charged with a family offense involving his two preteen sons. At the arraignment, held at the First District Court on April 3, 2009, a temporary stay away order of protection (TOP) was issued against him, pursuant to Criminal Procedure Law. The TOP had an expiration date of April 8, 2009. A New York Family Lawyer said there is no indication in the record that whether the judge directed a TOP hearing or that one was requested by petitioner or his counsel at that time.

On that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney the record is devoid of any request by petitioner’s counsel for a TOP hearing before the assigned judge. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner’s counsel for 2:30 p.m. but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.

Thereafter, as set forth in the civil minutes of the Count)’ Clerk, a notice of petition and petition of an Article 78 proceeding was filed therewith on August 24, 2009. No Request For Judicial Intervention (RJI) was filed for that special proceeding. Subsequently, on August 27,2009, an application for the instant Order to Show Cause was argued before the court. A New York Custody Lawyer said the transcript of that argument showed that the court declined to stay the temporary order of protection and struck that provision from the Order to Show Cause. That order was accompanied by an RJI that was specific to the Order to Show Cause. It appears from the record, that the Article 78 petition, with the separate notice of petition, was never initialized for submission to the Supreme Court. What is before the Court is just the undated Order to Show Cause and various motion papers in opposition to that request and in reply thereto.

Published on: June 18, 2013

Petitioner Seeks Sole Custody in Light of Abuse Allegations

by Stephen Bilkis

Before the Court are cross petitions filed by the father and the mother seeking custody of the child LJ born June 1, 1998. The father, LR, filed his petition on December 27, 2007. The mother, KR, filed her petition on December 31, 2007.

A New York Family Lawyer said the child is currently in the temporary custody of the Department of Social Services (hereinafter referred to as “DSS”) as the result of a removal pursuant to a neglect proceeding. He was placed by DSS with the paternal grandmother, EA, in January, 2006 pursuant to the Family Court Act.

Currently, the DSS is ready to return the child to a parent but has no position as to which parent. As each parent has filed for custody of the child, a hearing was held leaving that determination to be made by this Court.

Published on: June 17, 2013

Petitioner Sues Police in Domestic Violence Incident

by Stephen Bilkis

On the evening of February 13, 1992, plaintiff pulled her car alongside an area where Nassau County police officers were investigating an auto accident and jumped out, screaming for help. Plaintiff mother (PM) informed the officers that her husband, TM, against whom she had obtained an order of protection, was in her car threatening her with a knife. A New York Family Lawyer said the plaintiff showed the officers the order of protection and told them that there was a warrant for her husband’s arrest based on a previous violation of the order. The officers removed plaintiff’s husband from the car and one of them assured her that they would take care of him. After plaintiff left, however, the officers did not arrest her husband. The next morning, as plaintiff left home for work, her husband, who had been hiding outside, attacked her with a machete, inflicting serious injuries.

A New York Family Lawyer said the plaintiff sued Nassau County for the negligence of its police officers in failing to take her husband into custody. Plaintiff did not join her husband as a defendant, nor was he impleaded by the County as a party. At the pre-charge conference, defendant County requested that Supreme Court charge the jury that liability for plaintiff’s injuries could be apportioned between itself and the husband. Defendant argued that CPLR article 16, which limits a tortfeasor’s joint liability for non-economic losses to its proportional share if its culpability is 50% or less, applied to this case. The Trial Judge declined to instruct the jury that they may apportion culpability between the County and the intentional tortfeasor, plaintiff’s husband, because of a “very strong issue of a public policy as established in the Family Court Act with respect to orders of protection.” The jury returned a $1.5 million verdict for non-economic losses against defendant.

On appeal to the Appellate Division, the County challenged the trial court’s ruling. In addition to defending the trial court ruling, plaintiff argued that apportionment did not apply both because the case involved an intentional tort and because the County had violated a non-delegable duty. The Appellate Division reversed, holding that none of the proffered exemptions applied. The

Published on: June 15, 2013

Couple Seeks Dissolution After Arranged Marriage

by Stephen Bilkis

The parties are Sunni Muslim and the marriage was arranged between the families. On 18 June 1998, the parties got married at a civil ceremony in New York, and on 10 July 1998, the religious ceremony was performed. Thereafter, within 48 hours after the religious ceremony, defendant-wife left the marital residence and never returned. A New York Family Lawyer said that consequently, on 29 July 1998, plaintiff-husband filed a summons with notice in the Supreme Court to annul the marriage based upon fraud. On 6 November 1998, defendant-wife filed a verified answer and counterclaim seeking a divorce upon the grounds of cruel and inhuman treatment. The defendant-wife’s counterclaim contains allegations which, if true, may rise to the level of spousal abuse. In addition, the wife counterclaims for money damages in the sum of $21,000 for plaintiff’s failure to abide by a religious wedding contract, referred to as a “Mehr agreement”, defendant’s share of the wedding gifts, monies expended by defendant’s family for a lavish wedding, return of defendant’s jewelry, and the award of counsel fees. In regard to defendant-wife’s allegations of suffering, abuse, and violence by her husband on their wedding night, on 20 August 1998, defendant-wife filed a petition for an order of protection in the Court of Common Pleas in Delaware County, Pennsylvania. However, on 17 September 1998, the petition was withdrawn by defendant-wife, and the Court issued an order stating that the withdrawal was with prejudice to the petitioner. Defendant-wife also filed a criminal complaint against plaintiff-husband for the crime of Harassment in the Court of Common Pleas of Delaware County, Pennsylvania. On 7 December 1998, a preliminary hearing was held.

A New York Custody Lawyer said the defendant-wife appeared pro se, while plaintiff-husband was represented by counsel. The court dismissed the criminal complaint since defendant-wife failed to prove a prima facie case that a crime was committed and that the husband had committed the crime charged.

On 21 September 1998, defendant-wife obtained an order of protection in a Family Court in Queens County, New York, which was subsequently dismissed by that Court on 10 December 1998 since a matrimonial proceeding was pending in the Supreme Court, Nassau County. On 11 December 1998, defendant-wife submitted an order to show cause ex parte to the Supreme Court, Nassau County, requesting a temporary order of protection against plaintiff-husband, which was assigned to another Justice of the court due to the unavailability of the Justice assigned to the case. The affidavit by the wife in support of the order to show cause contained substantially, in sum and substance, the same allegations of abuse and domestic violence averred in the counterclaims. In addition, defendant-wife claimed that plaintiff-husband had violated a previous temporary order of protection without making reference to the date issued and the name of the court and judge who issued the order. Subsequently, the defendant’s application was granted, and the temporary order of protection was issued by the Supreme Court Justice. The order was to expire on 16 December 1998, the date the case was scheduled to appear before the Court. On that date, counsel for the defendant-wife submitted an application to be relieved, pursuant to CPLR § 321, which was granted by the order of the Court on 23 December 1998. The action was stayed until 15 January 1999 in order to allow defendant-wife to obtain an attorney. The temporary order of protection issued on 11 December 1998 was extended by the Court until 15 January 1999 over the objections of plaintiff’s counsel. Plaintiff’s counsel then requested a hearing on the record and sought to vacate the temporary order of protection issued upon the ground that the allegations by the wife were contrived and fabricated in order to have his client repeatedly arrested on false allegation of violation of the temporary order of protection. According to plaintiff-husband’s counsel, plaintiff-husband is a neurologist, and his ability to care for his patients has been severely impaired by the wife’s conduct. The Court has extended the temporary order of protection several times until a hearing could be held on plaintiff’s application to vacate the temporary order of protection. The temporary order of protection has been extended to 17 May 1999 by order of the Court dated 23 February 1999.

Published on: June 14, 2013

Plaintiff Seeks Divorce on Grounds of Cruel and Inhumane Treatment

by Stephen Bilkis

On or about 10 June 2003, an action was filed seeking divorce on the ground of cruel and inhuman treatment, and ancillary relief. On 23 December 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. A New York Family Lawyer said the plaintiff was granted omnibus pendente lite financial relief pursuant to an order dated 24 February 2004. On 8 February 2005, the parties entered into a written parenting-time stipulation. On 1 February 2005, the trial of the action commenced. On that date, an inquest was conducted and plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues. The trial continued on 2 February 2005; days thereafter; and concluded on 4 March 2005. At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian. The parties stipulated that the issue of counsel fees would be determined upon the submission of affirmations which were thereafter served and filed and marked. The plaintiff testified on her own behalf and called seven witnesses. The defendant, on the other hand, testified on his own behalf, and called his mother and a private investigator, as witnesses. The expert appointed by the Court to conduct a custody forensic evaluation also testified.

On Custody:

A New York Custody Lawyer said each party sought sole legal and physical custody of the children.

Published on: June 13, 2013

Court Decides if Natural Parents Should be Divested of Custody

by Stephen Bilkis

This consolidated-proceeding before the court is somewhat complex procedural posture. A New York Family Lawyer said there are three separate matters: a petition filed by New York Foundling Hospital (hereafter “the agency”) pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of child custody and guardianship to NYFH; a petition filed by the Commissioner of Social Services (“CSS”) pursuant to Family Court Act (“FCA”) Section 1055 seeking an extension of this court’s original placement order entered in the course of a prior Article Ten neglect proceeding; and a petition in the form of a writ of habeas corpus filed by the natural father seeking return of the children to his custody. All three petitions were consolidated, and a hearing was held on October 19 and 20 and concluded on October 25, 1978. Counsel was requested to submit post-trial memoranda in lieu of oral summations; the last was received on December 22, 1978.

A Bronx Family Lawyer said that, the natural parents, never married but lived together from 1967 to 1974, during which time three children were born: Yvonne, on October 23, 1968; Gladys, on June 9, 1970, and William, on April 20, 1973. In August 1974, after many earlier criminal convictions, the natural father was convicted on drug charges and sentenced to prison for a two-year-to life sentence. He was imprisoned until September 1977. In 1975 the natural mother voluntarily placed the subject child, who suffers from severe physical and mental handicaps, in temporary foster care. In 1976 the mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the CSS’s custody for 18 months.

A Bronx Custody Lawyer said that, during his entire imprisonment the father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the mother. Only after the agency, through its own diligent efforts, located him in the Correctional Facility in August 1977, did he learn of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek child custody or visitation. The three children, meanwhile, had lived in separate foster homes and facilities until summer 1977. The foster parents, had asked the agency for a handicapped child to adopt in 1976. After the subject child had been placed in their home for some two months, the foster parents requested that the natural parents join her; the children were reunited in September 1977 for the first time since 1975. In October 1977 the agency denied the father’s requests for child custody or visitation, and he began legal proceedings to protect his rights. On December 1, 1977 he was adjudicated the legal father, and, by agreement among counsel he had two visits with the children, the first in December 1977 and the second in February 1978. Only the oldest child, had any recollection of her father, the child having been only one year old when his father was imprisoned, and the other child being mentally incapacitated. Visits were discontinued when the natural parents became upset by them.

Published on: June 12, 2013

Couples Battle for Custody in Light of Abuse Allegations

by Stephen Bilkis

On 17 July 1997, plaintiff (husband) and defendant (wife) got married. The parties had two children: A who was born on 19 December 2002, and B who was born on 15 December 2004. On 30 June 2005, a matrimonial action was filed by plaintiff. The Court conducted a non-jury trial on March 17, 18, 19, 22, April 8, 9, 12, 13, 2010. A New York Family Lawyer said the plaintiff called one witness to testify at the trial while defendant called four witnesses to testify at the trial. At the request of the Attorney for the Children, the Court conducted in-camera interviews of the two children. Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of the matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the children was changed by the Court twice. The defendant has had temporary physical custody of the children since 15 April 2008.

On the Findings of Fact:

A New York Custody Lawyer said the testimony of plaintiff was found not credible and was often false. Here, plaintiff was extremely combative on the witness stand; he was unable to follow simple Court directives regarding his conduct, demeanor, and decorum during the proceedings; his testimony often defied logic, reason, and common sense; he claimed that he was verbally and emotionally abused by defendant throughout the entire marriage, yet his examples of this alleged abuse consisted of defendant calling him a bum, saying that he did not care, and that he was not responsible; his testimony regarding his prior employment history and finances was vague and evasive; he was unable to provide a clear employment history; he was unable to explain why he has not worked in over six years; he provided no explanation whatsoever regarding why he has not paid the Court Ordered child support for over two years; his testimony regarding the problems which he experienced with supervised visitation was unsupported by the record; the three defense witnesses directly and consistently contradicted his accounts of the problems experienced during the supervised visitation; and each witness unequivocally indicated that it was him who caused all of the problems during visitation.