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Mother Petitions Court for Custody

A New York Family Lawyer said on September 16, 2000, Mother and Father, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of said marriage, the Mother believed that she had been divorced from her prior husband, with whom she has a nine-year old child, as they had executed a Stipulation Agreement settling their New York divorce action on January 19, 2000. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce dated December 21, 2000, which incorporated but did not merge with the Agreement. This notwithstanding, the Mother and Father lived as husband and wife with the son of the prior marriage, and on May 15, 2001, they had the child subject to this proceeding.

A New York Custody Lawyer said that, difficulties apparently ensued between the couple in 2004, prompting the Mother a practicing attorney to commence custody, family offense and child support proceedings against the Father in Nassau County Family Court on January 25, 2005. A Nassau Order of Protection Lawyer said that, a Temporary Order of Protection was issued in the Mother’s favor. There was Child Protective Services involvement with the family. On August 26, 2005, the Family Court entered a Temporary Order of Support ordering the Father to pay temporary support and child care expenses in the sum of $486 biweekly to the Mother. The Father was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

A New York Child Custody Lawyer said that, shortly thereafter, on or about September 14, 2005, the Father commenced an Action for Annulment against the Mother in the District Court of Clark County in the State of Nevada, on the grounds that the Mother was married to someone other than him at the time of their marriage, and had not cohabited with her since learning the truth. Despite service upon her as found by the District Court in Nevada, the Mother failed to answer or appear on that action and a default was declared against her on October 10, 2005. The Eighth Judicial District Court of Clark County, State of Nevada then issued a Decree of Annulment on November 15, 2005, declaring the prior marriage to be “null and void and of no effect,” and restoring each of the parties to the status of a “single unmarried person.”

Relevantly, the Nevada Decree also adjudged and decreed that “each party be awarded his or her property as determined in accordance with Nevada law and that each party be held responsible for any liabilities, debts or obligations incurred in their own name of associated with property awarded to him or her.”

A Brooklyn Family Lawyer said that, following the commencement of the Nevada action but prior to its Decree of Annulment, the Mother also commenced the instant action against the Father to declare the nullity of a void marriage on October 26, 2005, in Nassau County Supreme Court, seeking the annulment of the marriage, necessaries for the living expenses of the parties’ child, and recovery of chattel, to wit: a 2004 Nissan Sentra automobile. This Court scheduled a preliminary conference on this matter, and the parties declined to enter into a discovery schedule due to the pendency of the Family Court proceedings. There was an agreement to the continuation of child support by the Father, who, in the interim, also returned the Nissan automobile to the Mother. Simultaneously with this action, there are two contentious custody proceedings currently pending against the Mother in Nassau County Family Court, with involvements by the child service and a Law Guardian. A Nassau Child Custody Lawyer said that, on November 15, 2005, the Mother’s former husband commenced a custody proceeding against her in Family Court, seeking to modify the joint custody Agreement between the parties to sole custody to him of their infant. On November 18, 2005, the Father also commenced a custody and visitation proceeding against the Mother in Family Court, raising similar allegations of maternal unfitness as herein. Those proceedings are currently subjudice with an appearance scheduled for the week of February 27, 2006.

A Brooklyn Custody Lawyer said that, by Order to Show Cause returnable December 13, 2005, the Mother moves for an order: (1) consolidating the Family Court support proceedings with this action; (2) granting her custody of the parties’ child; (3) awarding her child support and the proportionate share of child related expenses pursuant to the Child Support Standards Act; and (4) directing the Father to immediately return her Nissan automobile. The Mother argues that the Supreme Court is the proper venue to air the issues of custody and necessaries, and that she should be the child’s custodian because, among other things, the Father has a history of mental illnesses, drug and gambling addictions incompatible with the best interests of the child.
A Nassau Visitation Lawyer said that, in opposition to the motion, the Father argues that it is the Mother who is an inappropriate custodian suffering from alcoholism, bipolar disorder and parenting failures, and cross-moves, by Notice of Cross Motion, for an order, inter alia, dismissing this proceeding outright in favor of a reference and consolidation with the Family Court’s custody proceedings currently pending between these parties and the Barnett family, on the grounds that they involve similar factual and legal issues as well as parties and witnesses.

The issue in this case is whether the Mother should be granted custody of their child as well as child support.

The Court said that, it is well settled that the Supreme Court enjoys a constitutionally as well as statutorily guaranteed concurrent jurisdiction over any matter within the jurisdiction of the Family Court. It is for that reason that referrals from Supreme Court to Family Court of ancillary issues are appropriate under certain circumstances. Specifically, Family Court Act § 115(b) provides that the family court has jurisdiction “over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the Supreme Court.” That court also has exclusive original jurisdiction over the support of children born out-of-wedlock, as here.

Applying these principles to the matter at bar, the Father has sufficiently established that a referral of this proceeding to the Family Court is warranted. It should be initially noted that the Mother does not challenge the existence and validity of the Nevada Decree of Annulment of November, 2005, which declared the nullity of the parties’ marriage and its retention of jurisdiction regarding property issues. In light of that Decree, this Court does not appear to be the proper forum to raise any issues of marriage, necessaries or distribution of property between the now unmarried parties. Nor should this Court be involved in litigation over the custody and support of her children when there is custody proceedings currently pending in Family Court, a court uniquely equipped to deal with the serious and myriad of issues presented by the Father against the Mother. The matters should not be heard in different fora at the whim of the Mother.

Moreover, the Family Court is fully familiar with these parties as a result of the pendency of the other custody proceeding between the Mother and the former husband which involves the subject child’s half-brother, who lives with the Mother and the subject child. Were this matter not transferred, there would basically be two trials with the same parties, same witnesses, same attorneys cross-examining, possibly the same Law Guardian, and the same workers being questioned. Since the Mother may obtain full redress of her custody and support rights in Family Court, judicial economy, the best interests of the child, and the convenience of the parties and witnesses shall be better served by a referral to Family Court.

Accordingly, the Mother’s motion is hereby referred to the Family Court, and the Father’s cross-motion is granted in part and also referred insofar as it seeks custody and support of the parties’ child. The remaining causes of action are hereby dismissed without prejudice to reinstitution in the proper forum. The Mother’s attorney shall file a copy of this referral order with the Clerk of the Nassau County Family Court within ten days from the date below. The Nassau County Matrimonial Clerk shall forthwith transmit all papers, documents and minutes, exchanged and filed by the parties in this proceeding, to the Family Court with this referral order. This constitutes the decision, order and judgment of the Court.

In choosing where to give the child’s custody, the best interest of the child shall be considered. To win the child’s custody, you will need the representation of a Nassau Child Custody Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.

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