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Court Reverses Order Regarding Jurisdiction Issue

Two cases of similar nature have come before the court for resolution.

A New York Family Lawyer said the first case is a child custody and visitation proceeding where the mother appeals from an order of the Family Court, Kings County, dated 20 May 2003 which granted those branches of the father’s motion which were to dismiss the petitions for modification of an order of visitation dated 2 December 2002 on the ground of forum non conveniens and an order of the same court dated 3 June 2003 which granted that branch of the father’s motion which was to dismiss a family offense petition for an order of protection against the father on the ground of forum non conveniens pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8.

The court orders the reversal of said orders, on the law, with costs. Also, those branches of the motion which were to dismiss the petitions are denied, and the proceedings are transferred from the Family Court, Kings County to the Family Court, Richmond County.

A New York Child Custody Lawyer said the court finds that the Family Court improperly granted those branches of the father’s motion which were to dismiss the petitions on the ground of forum non conveniens. The Family Court Act does not permit dismissal of proceedings on the ground that there is a more convenient venue elsewhere in the state. Rather, it permits the Family Court in one county, for good cause, to transfer a proceeding to any other county where it might have been originated.

A Manhattan Family Lawyer said in this case, the father did not specifically request a transfer of the proceedings, it was correctly asserted that these proceedings should be determined in Richmond County, since the proceedings might have been originated there and he demonstrated “good cause” for their transfer.

The child who is the subject of this case has resided with the father in Richmond County since 2001 and attends school there. Furthermore, as the mother’s petitions for modification were partially based on allegations that the father interfered with pick-ups for visitation, the mother’s access to the child’s public school records, and restricted telephone access to the child, all of which allegedly occurred in Richmond County, their determination will require the testimony of witnesses who live and/or work in that county. Therefore, the convenience of the parties and potential witnesses will be best-served by the transfer of the petitions for modification to Richmond County.

A Manhattan Child Custody Lawyer said the court finds that since the allegations in the family offense petition arose from telephone calls between the parties from their respective homes in Richmond County and Kings County, either county is a proper venue for the determination of this case. However, since the allegations in this petition are intertwined with those in the modification petitions, the interest of judicial economy requires that the family offense petition also be transferred to Richmond County.

In the second case, a mother appeals from an order of the Family Court, Kings County dated 20 June 2008 in a child custody proceeding pursuant to Family Court Act article 6 and a related family offense proceeding which after a hearing, inter alia, denied her motion, among other things, to re-open the hearing for further testimony and evidence, denied her petition for sole custody of the subject child, awarded sole custody of the subject child to the father, and denied her family offense petition. By decision and order on motion dated 18 August 2008, the Court, inter alia, stayed enforcement of so much of the order dated 20 June 2008, as awarded sole custody of the subject child to the father, pending hearing and determination of the appeal.
The court modifies the order, on the facts and in the exercise of discretion, by deleting the provisions thereof denying the mother’s petition for sole custody of the subject child. The court awards the sole custody of the subject child to the father. As so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings.

Further, the court orders that pending final determination of the petition for custody, the subject child shall remain in the custody of the mother and visitation shall be in accordance with the Court’s decision and order on motion dated 18 August 2008.

As was held in the case of Eschbach v Eschbach, in adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child which requires an evaluation of the totality of the circumstances.

In the case at hand, new facts and allegations which this Court may properly consider, including that the father is awaiting sentencing for attempted assault, indicate that the record before the court is no longer sufficient to determine which custodial arrangement is in the child’s best interests.

Accordingly, the matter must be remitted to the Family Court, Kings County, for a re-opened hearing and a new custody determination thereafter. We express no opinion as to the appropriate determination.

The court finds no reason to disturb the Family Court’s determination that the mother failed to prove the allegations in the family offense petition by a preponderance of the evidence.
Kings County Family Lawyers, Kings County Child Custody Lawyers and Stephen Bilkis & Associates will gladly assist you with cases involving visitation rights. Call our toll free number or pay our firm a visit for expert legal advice. A team of industrious and accommodating lawyers will entertain your queries regarding your case.

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