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Court Discusses Jurisdiction Issue in Custody Battle

In this motion for leave to reargue respondent’s motion to dismiss for lack of jurisdiction, and for leave to reargue the decision and order of this Court dated August 8, 1977. A New York Family Lawyer said that, respondent contends that this Court lacks jurisdiction in this proceeding brought by petitioner, a resident of Queens County, for upward modification of divorce decree, Kings County, dated January 31, 1974. A Queens Divorce Lawyer said that, respondent argues that since he is a resident of Putnam County, a county which does not adjoin the City of New York, this Court lacks jurisdiction (and by inference that petitioner could proceed only by a petition brought in Putnam County, or by a proceeding under the Uniform Support of Dependents Law, U.S.D.L.).

A New York Custody Lawyer said that, in October, 1974, an order was made in the Family Court, Kings County, where petitioner then resided (respondent then resided in New York County), on petitioner’s petition for enforcement of said decree. On March 18, 1977, respondent, then a resident of Putnam County, filed a petition in the Family Court, Queens County (where petitioner then resided and now resides) requesting expanded visitation with the child. A Queens Family Lawyer said that, on March 29, petitioner filed a petition in this Court requesting upward modification of support for the child. Both petitions were returnable in Kings County. When the Court was informed that neither party resided in Kings, the file was transferred to Queens County.

A Westchester County Family Lawyer said that, now respondent argues lack of jurisdiction as to petitioner’s petition, in spite of the fact that he desires a hearing in this County on his petition. In addition to the reasons set forth below it is obvious that to require two hearings, in two counties would create a needless multiplicity of suits.

The issue in this case is whether the court has jurisdiction to entertain petitioner’s petition.
The Court held that, respondent’s argument is based on provisions of Family Court Act, Section 421, which relates to jurisdiction, and “the New York State Constitution specifically provides that Family Court is of limited jurisdiction and authority and lacks state wide powers and jurisdiction”. Moreover, respondent points out that under Section 421 a petition may be originated in the County in which “petitioner is residing if the respondent resides in or is found within such County or an adjoining County”.

The Court agrees with the contention of petitioner’s attorney that Section 421 deals with the question of venue. Moreover, Family Court Act, Section 451, grants to the Family Court continuing jurisdiction over any support proceeding brought under Article 4, with authority to modify a prior order.

Consequently, a Suffolk County Family Lawyer said the Court again holds that this Court retains jurisdiction in this proceeding, or any requested modifications of orders made herein, so long as respondent resides within the State of New York.

The court’s determination that it was in the best interests of the children to grant full custody to respondent mother has a sound and substantial basis in the record. The court clearly examined and weighed numerous factors, relying on no single factor, including the quality of the home environment, the ability of each party to provide for the children’s emotional and intellectual growth, and the relative fitness of each parents.

The Court has read the affidavit of respondent as to his inability to pay the amount of support directed in the order of August 8, 1977.

Accordingly, the court held that the motion to reargue is granted, and upon such re-argument the original decision of August 8, 1977 is adhered to, further, the court ordered that the order of the Supreme Court, Queens County, entered on or about April 30, 2009, which, after a hearing, granted a final order of full custody to respondent mother, with visitation to petitioner grandmother and respondent father, unanimously affirmed, without costs.

If you have issues regarding custody and visitation over your child, seek the assistance of a Queens Child Custody Attorney and/or Queens Family Attorney at Stephen Bilkis and Associates.

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