New York Family Law Blog

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.

Published on: June 12, 2013

Court Decides if Juvenile is entitled to Habeas Corpus Relief

by Stephen Bilkis

Upon this Writ of Habeas Corpus, petitioner Elizabeth Stuart Calvert, the Law Guardian of Relator, seeks his release upon the grounds that Family Court Judge improperly adjourned the dispositional hearing beyond the total twenty (20) day period authorized for “good cause” under FCA § 350.1, subd. 5. A New York Family Lawyer said that, on July 6, 1987, the Relator, under 16 years of age, was arrested inside premises 849 Bruckner Boulevard, Bronx, New York, by Police Officer Gwendolyn Guy of the 41st Precinct, Bronx County. Thereafter, a Bronx Family Lawyer said that, a juvenile delinquency petition, under FCA § 311.1 was filed charging Relator with acts which, if an adult, constitute the crimes of: Burglary in the Second and Third Degrees; Criminal Trespass in the Second Degree; Possession of Burglar’s Tools and Criminal Mischief in the Fourth Degree. Relator was present, with his father and step-mother, represented by the Legal Aid Society, which entered a denial and objected to his remand until July 10, 1987, by Family Court Judge.

A Bronx Order of Protection Lawyer said that, on July 10, 1987, Relator pleaded guilty to Criminal Trespass in the Second Degree before the Judge in full satisfaction of the entire FCA § 311.1 petition. The case was set down for a dispositional hearing on July 20, 1987, with the New York City Probation Department (“Probation”) directed to investigate and report (“I & R”) Relator’s background and circumstances, as well as explore placement by the adjourned date. In addition, the Court’s Mental Health Services (“MHS”) was ordered to conduct a mental health study and status examination and report to the Court by the July 20, 1987, adjourned date. In the interim, Relator was remanded to the New York City Commissioner of Juvenile Justice (“CJJ”), which referred Relator to a non-secure detention (“NSD”) facility.

A New York Custody Lawyer said that, At about 11:30 P.M. on July 19, 1987, Relator left the NSD facility without permission, returning to his father’s and cousin’s home (same building) the next morning, claiming he spent most of the night outdoors. Relator’s father then telephoned the Police Department, which returned Relator to CJJ in a secure detention facility (Spofford Juvenile Center) and Family Court custody that morning, being the adjourned date. On July 20, 1987, Relator and his father appeared before Family Court Judge, receiving reports that the Probation Department had not begun its I& R and MHS, had to re-schedule its July 15, 1987 examination because CJJ failed to produce Relator. Since Relator was then detained over ten (10) days, a “good cause” finding was required under FCA § 350.1, subd. 3(a). Judge Lynch found such “good cause” over the objections of Relator and counsel, based upon Relator’s absence from Court that very morning, which probably prevented the Probation interview. A dispositional hearing was now re-scheduled for July 30, 1987, by the Judge ordering, as did Judge Fields on July 10, 1987, the New York City agencies (Probation and MHS) to take the identical actions (I & R and mental health study and status examinations) and make the same reports to the Court. According to Petitioner, the Court, “remarked that failure to complete these reports would require the Realtor’s release on parole on the adjourned date.”

Published on: June 12, 2013

Petitioners Request for Modification of Child Support Denied

by Stephen Bilkis

A New York Family Lawyer said that, in proceedings for an upward modification of child support, the petitioner mother appeals from an order of the Family Court, Putnam County, entered August 18, 1992, which denied her objections to an order of the same court, entered July 6, 1992, which dismissed the petitions without prejudice, “as defective”.

The petitioner appellant mother, a resident of Putnam County, and the respondent father, a resident of the Bronx, were divorced in 1973. They have two children, the younger of whom is the subject of the instant petitions. A Bronx Child Support Lawyer said that, the mother filed the instant petitions in the Family Court, Putnam County, to enforce and modify a 1986 support order of the Family Court, Bronx County, to collect dental expenses incurred by the parties’ younger son, and to compel the father to contribute toward this child’s college expenses. The Family Court dismissed the petitions without prejudice, finding that they should have been brought pursuant to the procedures of the Uniform Support of Dependents Law (Domestic Relations Law article 3-A, hereinafter USDL) and not pursuant to Family Court Act article 4, and that accordingly, the matter should have been transferred to the Family Court, Bronx County.

The issue in this case is whether the Family erred in denying the petition for modification of child support by the mother.

Published on: June 11, 2013

Court Questions Jurisdiction of Stay Away Order

by Stephen Bilkis

A man filed a request for an order granting him a decision prohibiting his opponent from continuing the temporary stay away order of protection against him. The opponent however opposes the application, in its entirety.

A New York Family Lawyer said this case started when the man was arrested because of the complaint of a woman. On that same day, the judge of the district court arraigned the man. Over the man’s counsel’s objection, the judge set bail and as a condition of bail, she issued a temporary stay away order of protection against the man. Even if the man’s counsel requested that a hearing be held concerning the propriety of issuing the order, no hearing was conducted at that time. Instead, the judge ordered that the hearing be held on the date of the next adjournment. The man appeared before his opponent. After hearing the arguments from both parties regarding to whether or not to hold a temporary stay away order of protection hearing. But, the court denied the man’s counsel’s application for the hearing.

The man, when arrested in the criminal matter and for some time prior, shared a residence with the complainant and their child. Sources revealed that pursuant to the temporary stay away order of protection, the man was required to stay away from the complainant at her home and it resulted in his inability to legally live in his home.