New York Family Law Blog

Published on: February 21, 2013

Court Decides Visitation Rights of Incarcerated Parents

by Stephen Bilkis

The children in question were placed in petitioner’s foster care. A New York Family Lawyer said the birth mother’s drug use was the catalyst for the placement. Her whereabouts are unknown and she was not present at any of the Family Court proceedings. Respondent is the father of the children. At the time of the children’s placement, he was incarcerated in state prison on a murder conviction and will remain incarcerated until at least May 2016. By that time, both children will have passed their 18th birthdays. In early August 2000, an agency case worker took the children to visit respondent in prison.

A Bronx Child Custody Lawyer said that, according to the agency worker this was the only visit respondent had with the children prior to the agency’s filing of separate petitions seeking the termination of his parental rights. These petitions alleged that respondent had evinced intent to forgo those rights by reason of his failure to visit or communicate with the children in the six-month period prior to the filing and had therefore abandoned them. She testified that she contacted respondent through prison channels after the aforementioned visit, but he never responded or contacted her. Some of the letters she sent to him were returned to the agency but she did not produce at the hearing copies of any of the letters she claimed to have sent. She testified that respondent provided no financial support for the children did not maintain contact with them, did not send cards, letters or gifts and that no one contacted the agency on his behalf before the petitions were filed. She maintained that the agency did nothing to prevent or discourage respondent from coming forward, nor were there any other obstacles that might have prevented him from contacting the agency.

A New York Custody Lawyer said that, on cross-examination, however, the agency worker testified that before the petitions were filed, she telephonically spoke with a family service specialist from the Osborne Association who had contacted her on respondent’s behalf regarding the children. The Association facilitates family visits for prisoners incarcerated in New York correctional facilities. She gave the specialist the children’s foster parents’ names and addresses, as well as a letter acknowledging that the agency was in agreement with the Association’s scheduling a visit between the children and respondent in August 2004. She stated that the first time she personally met with the specialist was during that month. Upon questioning by the court, she admitted that she did not send any letters to respondent between February and August 2004 to notify him of any conferences, and did not make any other attempt to contact him during that six-month period. She never asked her supervisor if she could contact respondent directly, either orally or in writing, but stated that she would have had no problem with such direct communication had she known it was permitted.

Published on: February 20, 2013

Court Discusses Concept of Permanent Neglect

by Stephen Bilkis

This is an appeal from an order of the Family Court, New York County, dismissing a petition brought by petitioner Hospital seeking (1) termination of the parental rights of respondent mother; (2) custody of the subject child; and (3) a declaration that the child was free for adoption, pursuant to Social Services Law Section 384-b and Family Court Act, Article Six. A New York Family Lawyer said the out-of-wedlock infant was born on March 25, 1974. The current whereabouts of the father are unknown and there is no evidence of any contact or support by him at any time. The infant came into the custody of the hospital on April 21, 1976 after he was found strapped in his stroller, alone and unattended, at about 4 a. m., near an abandoned building in Brooklyn. The mother was apprehended and arrested for burglary of the building. She subsequently pleaded guilty to criminal trespass. She claimed that on her way to the store with the child she was pursued and had to leave the infant unattended. In consequence of this incident, a finding of neglect was made against the mother by the Family Court, Kings County.

A New York Custody Lawyer said that, the child was placed with the Commissioner of Social Services for an initial period of eight months. Thereafter placement was extended until March, 1979. The mother, herself, had been placed in foster care at the age of 3 because her own mother was unable to care for her and her five brothers and sisters, four of whom were placed in foster care. Her schooling ended at the 10th grade. She was transferred from one institution to another and from one foster family to another until the age of 18. The longest period with a foster parent was from 1972 to 1974. Although she knew her parents, she had no relationship with them. In a psychological evaluation in connection with the placement of the subject child, the mother was diagnosed as an inadequate personality with anxiety features needing psychiatric treatment and counseling. “Therapy should be directed in part to help her to accept responsibility for everything which may happen to her infant.”

During 1976 the mother visited with her son on 12 or 13 separate occasions out of a possible 60 available dates, as noted in the agency records. On September 17, 1976, at the extension of placement hearing, she indicated upset at the decision. She believed her son should have been released to her. She was directed to avail herself of counseling which the agency was directed to provide. In December 1976 she expressed upset that her son was in a foster home in Bronx. In view of the fact that she lived in Brooklyn and she was in an advanced state of pregnancy with a second child, it would be difficult for her to make the long trip to Bronx and visit her son. She could not visit him until after the baby was born. During the entire year 1977, the mother visited the subject child only once. In October 1977 she advised the agency that she wanted her son returned but she was too busy with her second baby. During 1977 she had financial problems, moved from place to place and had fires in at least two of her places of residence. On June 8, 1978 she stated that she could not plan for his son, that she no longer lived with his paramour and was now living with another man. She wished the agency to continue to care for her son and to help her with the many decisions she would have to make. Her new paramour had three children in foster care in Brooklyn. She admitted she could not care for the three children in addition to his son.

Published on: February 19, 2013

Respondent Claims Due Process Rights Were Violated

by Stephen Bilkis

In this custody proceeding, a New York Family Lawyer said that, the Family Court, Bronx, awarded petitioner mother sole physical and legal custody of the parties’ child dismissed respondent father’s petitions based on violations of temporary orders of visitation, denied respondent’s second motion to dismiss the child custody petition, and issued a five-year order of protection forbidding respondent from exercising any corporal punishment against the child. A Bronx Order of Protection Lawyer said that defendant father appealed the decision.

The issue in this case is whether the Family Court erred in awarding the sole physical and legal custody of the child to the petitioner mother.

A New York Custody Lawyer said the Court said that, with regard to deprivation of respondent’s visitation rights, he had ample opportunity to present evidence of petitioner’s violations during the custody trial, but failed to do so. Moreover, the record indicates that petitioner supported the child’s regular and frequent visits with her father. Denial of respondent’s request for a subpoena was a proper exercise of discretion. There is no indication in the record that petitioner was using illegal drugs or had used them in the recent past, or that she had any medical or psychological condition that might negatively impact on her care for the child.

Published on: February 19, 2013

Court Decides Whether to Terminate Parental Rights

by Stephen Bilkis

The natural parents, never married but lived together from 1967 to 1974, during which time three children were born. 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.A New York Family Lawyer said in 1975 the natural mother voluntarily placed the second born child, who suffers from severe physical and mental handicaps, in temporary foster care. The mother abandoned the two other children and on December 7, 1976 the Family Court placed them in the Commissioner of Social Services custody for 18 months. A Bronx Child Custody Lawyer said that, during his entire imprisonment the natural father (whose whereabouts was then unknown) made no attempt to stay in touch with his family and he testified he heard nothing from the natural mother. Only after the agency, through its own diligent efforts, located him in a Correctional Facility in August 1977, did the natural father learned of the children’s foster care placements; immediately after being paroled, in September 1977, he visited the agency to seek 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. A New York Custody Lawyer said after she had been placed in their home for some two months, the foster parents’ requested that the two other children join her; the children were reunited in September 1977 for the first time since 1975.

A Bronx Child Custody Lawyer said that the agency denied the natural father’s requests for 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 natural father, having been only one year old when he was imprisoned, and the handicapped child being mentally incapacitated. When these proceedings came to trial the natural father was unemployed, on parole, and living on public assistance with a woman he had known less than a year, who was expecting his child in December 1978. A New York Custody Lawyer said the foster parents live with the three children in a three-bedroom suburban garden apartment. The foster father is employed as a maintenance man; foster mother is a full-time housewife.

A Nassau County Family Lawyer said that the New York Hospital filed a petition pursuant to Section 384-b of the Social Services Law (“SSL”) seeking termination of parental rights and a transfer of custody and guardianship to NYFH; a petition was also 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.

Published on: February 18, 2013

Children Placed in Foster Care

by Stephen Bilkis

A woman who was high on drugs found herself married to a man she hardly knew. She never lived with that man she married and she never even had sexual relations with him to her knowledge. A New York Family Lawyer he tried to divorce him in the days that followed but she could not locate him so she could not serve him divorce papers.

The woman later cleaned herself up and stopped taking drugs. By that time, she met another man with whom she fell in love. They lived together as husband and wife without the benefit of a marriage. With this man, she had two children. A New York Custody Lawyer said in the children’s birth certificates, the man was listed as their father and the children used his surname. The children received pediatric care and in the medical records with the children’s pediatrician, the man was indicated as their father. The man was also listed as the children’s next of kin in case of emergency. The father listed the children as his beneficiaries and dependents. He fully supported them with the salary he earned as a construction worker.

The real father of the children (the man who was not the legal husband of the children’s mother) was imprisoned several times during the infancy of the children but he was imprisoned for only short terms of six months. In 1998, he was imprisoned with a term of five years. During his incarceration, he still tried to support the woman and his children with her with earnings as an inmate. He asked his sister to visit the children for him when he couldn’t reach them by telephone because the telephone service at their apartment had been cut off. Months later, the sister of the imprisoned father could no longer find the children or the mother.

Published on: January 28, 2013

Court Maintains that Modification of Custody Must Benefit the Child

by Stephen Bilkis

On 1 September 2009, a Family Court in Kings County issued an order which, after a hearing, in effect, granted the father’s petition to modify a prior custody order of the same court dated 3 August 2004, so as to award him sole legal and physical custody of the subject child with visitation to the mother; denied the mother’s petition for sole legal and physical custody of the subject child, and denied her application to relocate with the subject child to Newburgh, New York. Thus, a New York Family Lawyer said in related child custody proceedings pursuant to Family Court Act Article 6, the mother appeals from the said order.

The court finds that the order must be affirmed, without costs or disbursements.

Under the rules, a relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child. A New York Custody Lawyer said the best interests of the child are determined by a review of the totality of the circumstances. Deference should be accorded to the credibility determinations of the hearing court, which saw and heard the witnesses, and the hearing court’s determination should not be set aside unless it lacks a sound and substantial basis in the record.

Published on: January 26, 2013

Court Says to Alter Existing Custody Arrangment there Must be a Change of Material Circumstances

by Stephen Bilkis

In a matrimonial action in which the parties were divorced by a judgment, the complainant husband appeals from the decision and filed an instant action for a divorce and ancillary relief against his wife. Prior to the entry of the divorce decision, the husband and wife entered into a duly executed stipulation of settlement, which awarded the wife of their children’s custody. The stipulation was incorporated but not merged in the decision of divorce. A New York Family Lawyer said the following to the execution of the stipulation and the entry of the decision, the wife moved to enforce certain terms of the stipulation. Thereafter, the husband sought to transfer the custody of the two minor children to him or to increase his visitation and to suspend or reduce his agreed-upon child support payments.

The court correctly determined that there must be no change of custody of the parties’ two children. Consequently, the court properly refused to transfer custody to the father, or increase his visitation. The mother’s position with regard to visitation did not raise to the level of active interference with or deliberate frustration of the husband’s visitation rights. In addition, the court also examined the husband’s remaining contentions and find that they lack merit.

In another trial, another father also filed an appeal from an order of the family court. The complainant father sought a modification of a decision to permit him to have visitation with his daughter. Based on records, a New York Custody Lawyer said to warrant modification of an order fixing visitation, there must be a change of circumstances, and the change must be material

Published on: January 25, 2013

Husband Seeks to Increase Custody Based on a Stipulation

by Stephen Bilkis

In a matrimonial action in which the parties were divorced by a judgment, the complainant husband appeals from the decision and filed an instant action for a divorce and ancillary relief against his wife. A New York Family Lawyer said that prior to the entry of the divorce decision, the husband and wife entered into a duly executed stipulation of settlement, which awarded the wife of their children’s custody. The stipulation was incorporated but not merged in the decision of divorce. Following to the execution of the stipulation and the entry of the decision, the wife moved to enforce certain terms of the stipulation. Thereafter, the husband sought to transfer the custody of the two minor children to him or to increase his visitation and to suspend or reduce his agreed-upon child support payments.

The court correctly determined that there must be no change of custody of the parties’ two children. Consequently, the court properly refused to transfer custody to the father, or increase his visitation. The mother’s position with regard to visitation did not raise to the level of active interference with or deliberate frustration of the husband’s visitation rights. In addition, the court also examined the husband’s remaining contentions and find that they lack merit.

In another trial, another father also filed an appeal from an order of the family court. A New York Custody Lawyer said the complainant father sought a modification of a decision to permit him to have visitation with his daughter. Based on records, to warrant modification of an order fixing visitation, there must be a change of circumstances, and the change must be material.

Published on: January 24, 2013

Responded Taken into Custody Child Removed from Home

by Stephen Bilkis

Respondent is the mother of the two subject children, a boy and a girl. Respondent also has an older daughter, currently a third year student, visits the home on some weekends and during school vacations.

A New York Custody Lawyer said that in February 2008, respondent was arrested and the children services removed the son and the daughter from her care pursuant to Family Court Act § 1024 prior to the filing of a petition. On February 15 2008, the children services filed petitions against respondent in Kings County Family Court. The petitions allege that the mother neglected the child, by inflicting excessive corporal punishment upon him. Specifically, the petitions allege that, on that day, NYPD responded to a 911 call made from a business near the case address after the son left the home because his mother beat him with a belt. The petitions further allege that the son reported that the beating took place after his mother learned that he had failed a number of classes. When the son tried to get away, the mother allegedly grabbed him, tied him to the chair and hit him again. The son also reported that his mother had used physical discipline in the past although this time was worse than other times. Finally, the petitions allege that the daughter is a derivatively neglected child by virtue of the neglect of the son.

On the day the petitions were filed, the judge granted the request of the children services for a removal of the children and temporarily released them to their maternal aunt. The judge entered a temporary order of protection against respondent on behalf of the children directing that she refrain from the use of corporal punishment. A New York Family Lawyer said the Judge also ordered that the mother have liberal supervised visitation at the aunt’s home.

Published on: January 24, 2013

Court Terminates Respondent’s Parental Rights

by Stephen Bilkis

First Case:

On or about 20 December 2010, a Family Court in Bronx County issued an order which, upon the mother’s default at a combined fact-finding and dispositional hearing, terminated the mother’s parental rights to the subject child upon a finding of permanent neglect, and committed custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children’s Services for the purpose of adoption. A New York Family Lawyer said that thereafter, the respondent mother moved to vacate the order of disposition. On or about 21 March 2011, the same court denied the said motion. Thus, an appeal of the said denial followed.

The court finds that the denial must be affirmed, without costs; the appeal must be dismissed, without costs, as taken from a non-appealable paper.