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Court Decides Whether to Consolidate Cases

In this case, a New York Family Lawyer said the Plaintiff husband moved to consolidate a Family Court proceeding, wherein he and his mother were charged with abuse and neglect of the parties youngest daughter, into this divorce case which is already at the postjudgment stage. Defendant wife and the Administration for Children’s Services (ACS) opposed the said motion.

The parties were married on November 7, 1984. They had two children, one born in 1988, and the other born in 1994. The Plaintiff husband commenced this action for divorce in February 2002. On May 22, 2002, the parties entered into a stipulation which resolved all issues of child custody, visitation and child support. They agreed that they would have joint legal custody of the children, and that the father would have sole physical custody. A New York Custody Lawyer said they further agreed that defendant wife was to have the children visit her in Florida for six weeks each summer and for two weeks during school vacations. She was also to have overnight visits when she was in New York.

The court entered an order, dated July 13, 2004, continuing the award of sole physical custody to the Plaintiff husband. The court retained jurisdiction over the youngest daughter’s custody.

A judgment of divorce, which incorporated the stipulation, was signed on November 15, 2004 and was entered on May 22, 2006.

On or about July 21, 2006, the youngest daughter went to Florida to visit defendant wife for the six-week period provided in the stipulation. She did not return on September 1, and the Defendant wife did not provide the Plaintiff husband with any information as to when she would return. Plaintiff husband then brought on a motion by order to show cause to hold the defendant wife in contempt, to give him sole custody of their youngest daughter.

On October 4, 2006, ACS filed a petition in the Family Court alleging that the Plaintiff husband and his mother had committed acts against the youngest daughter which constituted abuse under article 10 of the Family Court Act. On the same day, the Family Court directed the temporary removal of youngest daughter from her father’s home, and ordered that she be placed in the custody of ACS.

A Queens Family Lawyer said with respect to the motion to consolidate the cases, the father argues that this court has jurisdiction to consolidate the article 10 proceeding with this divorce action, citing the case of Paul B. S. v Pamela J. S. (70 NY2d 739, 741 [1987]) as his basis.

Consequently,a Queens Custody Lawyer said the question before the court is not whether it has the authority to consolidate the cases, but whether it should exercise its discretion to do so.

Both ACS and the mother suggest that the proper course would be for the Family Court to hold a fact-finding hearing, and then for either the Family Court or the Supreme Court to hold a combined disposition and custody hearing.

The court disagreed, and held that the case of Paul B. S. supports the immediate consolidation of the Family Court proceeding into this one.

In this case, similarly, the divorce action was commenced first and, after extensive motion practice and a hearing, this court continued the award of sole physical custody of the children to the father. While it is true that this court has not ordered forensic examinations, this fact is not dispositive since the Family Court has also not done so.

The court held also that the critical factor is the ability of this court to resolve all outstanding issues regarding this family. The importance of this factor is supported by the majority opinion in the Appellate Division, which strongly suggested that the better course in that case would have been for the Supreme Court to hear the entire matter “from start to finish” which it would have done “had the respondent Commissioner [of ACS] not immediately obtained a stay of its orders” (127 AD2d at 496).

Thus, the Appellate Division decision not only approved consolidation but also expressed a strong preference for having one judge decide all of the matters concerning the family before it. In that respect, the decision is a precursor of the “one family-one judge” philosophy repeatedly advocated by Chief Judge Kaye, and increasingly recognized by the courts.

If the court were to deny the motion for consolidation, then this family’s legal problems would be addressed not by one but by several judges. In contrast, once the court grants the motion to consolidate, it will be able to hear all of the pending matters concerning this family, including neglect and abuse, disposition and custody, child support, contempt and equitable distribution. Consequently, there is a strong policy argument in favor of consolidation.

Stephen Bilkis and Associates with its New York Family Lawyers will assist you and your loved ones with legal concerns involving family matters. It has offices within New York Metropolitan area, including Corona, New York.

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