New York Family Law Blog

Published on: June 11, 2013

Complaining Witnesses Seeks to Recant Testimony in Domestic Violence Dispute

by Stephen Bilkis

The case involves a repetitive issue concerning domestic violence. A New York Family Lawyer said the complaining witness/victim of domestic violence wishes to recant her testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.

Defendant moved for an order, pursuant to CPL § 410.20(1), 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 order of protection of the Court dated 3 February 2010. Defense counsel moved post-conviction and post-sentencing for the aforesaid reliefs 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 the 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.

The defendant’s motion was denied in its entirety.

Published on: June 10, 2013

Court Decides Adoption Case

by Stephen Bilkis

The Court adjudicated the child as neglected child in a 59-page written decision outlining the history of the neglect case as well as the dispositional orders issued by the Court on the same date. A New York Family Lawyer said at that point, the child had been in care. The judge’s dispositional order was quite clear. It required that the children be placed in care for 12 months and the defendant mother be placed under the Administration for Child Services (ACS) supervision for 12 months.

The order of the court also issued an order of protection against the respondent mother in favor of the children providing that she shall not interfere with their care and custody by ACS or its agent and shall have only supervised visitation with the children at the agency and that she was required to comply with the terms and conditions specified in said order of protection which was incorporated into the dispositional order. Furthermore, the dispositional order required that the respondent mother was to establish and maintain a verifiable place of residence and keep ACS/Agency appraised of her residence at all times, as well as a means of reliable communication such as mailing address and telephone number. A New York Custody Lawyer said she was also to establish a verifiable source of income. The mother was to be notified of the planning conferences to be held with respect to the children. She has the right to attend such conferences and the right of respondent to be accompanied by counsel or other person. It also required that the children were to continue to receive therapy and that ACS was to undertake diligent efforts to encourage and work with the respondent in an effort to effectuate the discharge of the children to her care and respondent was to cooperate, as well, in that regard. It also continued the warrant for the return of the son to foster care.

The dispositional order also wants the ACS to submit written progress reports to the Court, to the respondent mother and the Law Guardian concerning the status of the respondent mother and the children and the implementation of the Court’s order. It also required ACS was to file a petition for a permanency hearing.

Published on: June 9, 2013

Probation Revoked for Juvenile Delinquent

by Stephen Bilkis

A petition was filed against a 15 year old boy alleging that he is a juvenile delinquent. A New York Family Lawyer said the petition alleged that the boy committed acts which, were he an adult, would constitute the crime of criminal possession of a weapon, criminal mischief, and reckless endangerment.

The boy appeared in the court and he was released to the custody of his mother. The court also directed the boy to attend an alternative to detention program and that he observe a 6:00 p.m. curfew.

Later, the presentment agency filed an application to remove the boy from the alternatives to detention program because he had been arrested for attempted burglary. He also missed forty days of school and had been suspended from school twice.

Published on: June 9, 2013

Wife Seeks Dissolution Based on Cruel and Inhuman Punishment

by Stephen Bilkis

The husband, age 59 at the time of trial, first came to the United States. He became a member of the Excavators Union. While he was in Italy for approximately eight months, he married his defendant wife. A New York Family Lawyer said they moved into a four room house he owned in Italy. The record is not clear whether the house was already fully built or was still incomplete. Doors, a new roof and a back house were added thereafter. The husband did some of the work and paid for the rest. Prior to the marriage the husband acquired an additional plot of land adjoining the property on which the house stood, with his own funds and in his own name. The parties’ first child was born in Italy. At the time of the child’s birth the husband had already returned to America. Over the next nine years, the husband made three trips to Italy for a total of two years. During those years, the parties had three more children, all born in Italy, twins were born in October 1964 and a son born in July 1968. The wife maintained the house and cared for the children with some assistance from her parents and his parents during those nine years. She cared for the animals, grew crops, and worked as a seamstress and supported herself and the children with limited assistance sent by her husband from America.

A New York Custody Lawyer said upon the insistence of the wife, the husband, by then an American citizen, brought his wife and four children to New York in December 1971. The family took up residence in a small Bronx apartment which the husband had rented.

Within two months of her arrival, the wife began to work as a seamstress, in a factory and at home. She maintained this occupation almost continuously from then until the time of trial, earning between $140 and $150 per week. A Nassau County Family Lawyer said she also maintained the household. The husband was then earning approximately $300 per week. He paid the rent for the apartment, and for a subsequent apartment to which the family moved, at the rate of $120 per month, as well as gas, electric and telephone bills. He made mortgage payments of approximately $140 per month on the parcels of unimproved land which he purchased. The income tax returns of the parties indicate a range of income for the family from $7,000 in 1971 to $21,000 in 1974. The extent to which the husband and the wife each provided funds for food, clothing, etc. is unclear from the record.

Published on: June 8, 2013

Court Decides if Social Services Law is Constitutional

by Stephen Bilkis

The two appeals before this court, involving two different sets of children, raise questions relating to Social Services Law §§ 384-b(4)(c) and 384-b(6)(a). Because in each case the trial court entertained a different view of the constitutionality of those sections, we have chosen to consolidate these appeals and consider the conflicting claims of the parties in one opinion.

A New York Family Lawyer said that, in the first case, petitioner, the Cardinal McCloskey School and Home, appeals from an order of the Family Court, New York County, entered May 15, 1980, which dismissed its petition pursuant to Social Services Law § 384-b(4)(c) for an order terminating the parental rights of respondent, on the ground, inter alia, of her mental illness. The court, after a fact-finding hearing, concluded that there was clear and convincing proof of mental illness rendering respondent unable to provide adequate supervision and guidance to the children in the foreseeable future. However, following a dispositional hearing upon the consent of all counsel, the court extended the children’s placement with petitioner, but dismissed the petition on the ground that §§ 384-b(4)(c) and 384-b(6)(a) were unconstitutional.

A New York Custody Lawyer said that, in the second case, the children, through their law guardian the Legal Aid Society, appeal from an order of the Family Court, Bronx County, entered November 15, 1979, which dismissed the petition of the Cardinal McCloskey School and Home pursuant to Social Services Law § 384-b(4)(c) seeking guardianship and custody of the children on the ground that the father, was unfit to care for them by reason of mental illness. The petition was dismissed after a fact-finding hearing at which the court found there was insufficient proof to support a termination of parental rights based on mental illness.

Published on: June 7, 2013

Court Decides Custody in Light of Molestation Allegations

by Stephen Bilkis

Two petitions were filed by the Administration for Children’s Services (ACS) in May 2010 on behalf of three-year-old child, and five-year-old daughters of Respondent. The petition on behalf of five-year-old also named the child’s mother, as co-respondent, and the petition on behalf of three-year-old child named her mother, as co-respondent. The allegations in the petitions as to both children are identical. A New York Family Lawyer said that, the petitions allege that both children are less than eighteen years of age and, their father, Respondent, has sexually abused them, as defined in Family Court Act § 1012 (e) (iii), and has impaired their physical, mental or emotional conditions, or placed them in imminent danger of such impairment, as a result of his failure to exercise a minimum degree of care in providing each of them with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the court within the purview of the Family Court Act § 1012 (f) (i) (B).

A New York Custody Lawyer said that, the fact finding hearing was commenced January 24, 2011 and was completed on March 23, 2012. ACS called two witnesses. A non-subject child, testified via two way circuit video from a residential treatment center in Syracuse, New York. The ACS Caseworker also testified. Respondent testified on his own behalf.

A Nassau County Family Lawyer said that, petitioner ACS asks that the court, pursuant to Family Court Act § 1012 (e) (iii) and§ 1012 (f) (i) (B), find that the subject children are derivatively neglected or abused children based on Respondent’s 2001 conviction of rape in the second degree of his two half-sisters, then ages fourteen and seven years, his registration as a level three sex offender, and the testimony of non-subject child who alleged that Respondent committed sex offenses against her around 2006-2008. The Attorney for the non-subject child joins in ACS’s application. Respondent argues that the court must dismiss the instant petitions based on ACS’s failure to establish derivative abuse or neglect of the two subject children or to present evidence to show that Respondent has harmed the children or placed them in substantial risk of harm. Further, Respondent asserts that the testimony of the thirteen-year-old child as to his alleged sexual touching of her was not credible and could not be used as a predicate offense for a finding of derivative child abuse or neglect.

Published on: June 6, 2013

Court Hears Case Regarding Double Jeopardy Against Infant Defendant

by Stephen Bilkis

A Bronx Order of Protection Lawyer said that, the petitioners, pursuant to Article 78 CPLR, seek relief in the nature of prohibition restraining the respondent court (Family Court) from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing. Relief pursuant to Article 78 CPLR is an appropriate remedy upon such claim. Movant has properly sought such relief here (CPLR 506(b)).

A New York Family Lawyer said that, the infant petitioner was charged with the commission of an act which would be a crime if committed by an adult. A fact-finding hearing was commenced thereon and there was a failure of proof when the complaining witness admitted she could not identify the infant. The record submitted establishes that there may have been a witness who might have supplied the necessary identification, but that the witness did not appear and indicated that he would not obey a subpoena to compel his attendance. In addition, it appears that the Court viewed, but without the objection of the attorney for the infant petitioner, probation reports and other records concerning a prior ‘Person in Need of Supervision’ petition brought by the infant petitioner’s mother. Thereupon, the Court declared a mistrial and set the case down for a new hearing upon the expressed grounds ‘because of failure of necessary witness to respond to subpoena and because of Judge’s perusal of other records of respondent’ (the infant petitioner herein).

The issue in this case is whether the Family Court should be restrained from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing.

Published on: June 4, 2013

Maternal Aunt Seeks to Adopt Child

by Stephen Bilkis

An institution filed a child neglect petition in the family court based on allegations that the mother failed to provide adequate medical care for the infant and had a prior history of neglect findings as to the infant’s older siblings. The court issued an order removing the child from the mother’s care and sends back the child to the institution for foster care services. Then, the institution removed the child from the mother’s care and the child physically entered the foster care. A New York Family Lawyer said the institution placed the child in a foster home with the agency with whom they contracts for foster care and adoption services. The agency consequently placed the child in the home of non-kinship foster parent who has now filed the agency for adoption petition. The child remained in the foster mother’s home continuously.

Consequently, the court found that the mother had neglected the child and issued a dispositional order placing the child with the institution. At the hearing, the court approved a change in the child’s permanency goal from return to parent to adoption. The agency filed a petition to terminate the parental rights of the mother on the grounds of permanent neglect or abandonment, and sought a finding that there was no man who was entitled to notice of and consent to the adoption of the child.

The hearing for the termination of parental rights proceeding was initiated. At the hearing, the court learned that the mother had died and her death ended the proceeding. A New York Custody Lawyer said the court then held a hearing and found that there was no man who was entitled to notice of or consent to the child’s adoption. The court directed the agency to submit a written order of disposition and the mother’s death certificate.

Published on: June 2, 2013

Court Decides Guardianship Proceeding

by Stephen Bilkis

In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.

A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.

The issue to be resolved in this case is whether respondent should be placed under guardianship.

Published on: June 1, 2013

Mother Seeks to Relocate Child

by Stephen Bilkis

The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical child custody. The father was given visitation rights every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation also allowed relocation within 25–miles of the father’s house in Bronx County.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

A New York Custody Lawyer said that after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying to mirror my own childhood. I had a wonderful suburban upbringing. The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.