A New York Family Lawyer said that on 20 September 1969, petitioner and respondent were married in Cooperstown, New York. After residing in a trailer park in Sodus, New York, they bought a house and settled in Williamson, New York. Out of the marriage, four children were born- A and B, twins who are aged three, C, aged two, and D, aged one. On or about 20 May 1974, the parties separated and respondent left the marital residence with the children, and since then has been living with her mother in Fly Creek, New York.
On 19 June 1974, the wife filed a petition in Otsego County Family Court under Article 3–A of the Domestic Relations Law, seeking support for herself and the children from her husband. In due course, the petition was forwarded to Wayne County for action to be taken thereon. This Court was unable to obtain service of the first summons for appearance of the respondent on 31 July 1974. A second summons for appearance on 28 August 1974 was also unable to be served on the respondent, and a warrant was issued, which resulted in his appearance before this Court with counsel on 3 September 1974. The respondent was released on his own recognizance for appearance with his attorney at a subsequent date.
A New York Divorce Lawyer said that on 28 June 1974, AM caused a summons for divorce to be served on his wife by the Otsego County Sheriff. A complaint verified 9 August 1974, and apparently prepared by a substituted attorney, was served on PM, following the service of another summons for divorce served on her on 20 July 1974; the proof of service of the summons on 20 July indicates a complaint was also served, but this seems not to be fact, the complaint having been served later.
A Westchester County Criminal Lawyer said that AM served a summons and complaint out of Otsego County on AM on 6 August 1974, before the AM’s complaint was served in his action. Thereafter, her attorney by a show cause order in Supreme Court, Otsego County, moved to consolidate the two divorce actions and to set Otsego County as the proper county for venue. The order to show cause was returnable in Otsego County on 11 September 1974. By a decision dated 25 September 1974, it was held that the divorce actions should be consolidated, and that Otsego County was the proper place for trial of all issues including custody, visitation and support. The court finds that the children’s interest would best be resolved in their home county, where their mother has them under her care and has evidenced the greater diligence in: invoking the aid of the Family Court; in compelling the joinder of issue in the divorce action; and, in bringing on this motion to prevent the fragmentation of proceedings seeking the same or similar relief. The venue of the consolidated action shall be Otsego County. This Court is advised that the order entered thereon has been appealed.
A Suffolk County Family Lawyer said that the ending decision in the Otsego County order to show cause, the AM’s attorney moved for a writ of habeas corpus in Monroe County Supreme Court, which was referred to Wayne County Family Court on 23 September 1974. The motion to change venue was denied without prejudice, a temporary order of support was made by Justice Ark in the amount of $10.00 per week per child, and visitation of the children by the father was granted.
A Suffolk County Family Lawyer said that pursuant to the referral, AM moved the Court to compel answers to interrogations filed 26 September 1974, and for an order designating Wayne County Family Court as the venue for hearing the habeas corpus proceeding. The Argument was heard on 22 November 1974.
The court notes that the Uniform Support of Dependents Law (USDL) matter was properly before this Court until the divorce action was commenced in accordance with Family Ct. Act, § 464.
The court is now faced with the issue of venue on the custody of the children.
The Otsego County Supreme Court has filed a decision which decides the matter. Both parties were properly before that Court, its decision and order have been filed and an appeal is pending. It would therefore be presumptuous of this Court to make an order which in effect would modify the previous order in Otsego County. Had no decision been filed in Otsego County, this Court would reach the same conclusion as to venue.
The husband’s attorney states that the convenience of witnesses requires the matter to be heard in Wayne. It is certain that the wife will also have numerous witnesses, who would suffer as much coming to Wayne as the husband’s would go to Otsego. While the presence of these young children would probably not be necessary to determine the issues, if they should have to attend in Wayne, it could not help but be upsetting for them to be transported around the state for several days. Another argument made by the husband’s attorney, and instantly dismissed by the Court, was the inability of her client to obtain a fair hearing in Otsego County because the wife’s mother is the Deputy Commissioner of Elections in Otsego County.
Section 7004(c) of the CPLR provides that a writ of habeas corpus, when the person detained is not confined in an institution, shall be made returnable in the county where issued, but if the person detained is not in the county where the writ is issued, then the writ may be made returnable before any judge authorized to issue it in the county of detention.
The court, in its order of reference dated 16 September 1974, specifically reserved to this Court the question of venue on the hearing of the writ. It is discretionary with the issuing justice where the writ should be made returnable as held in Hogan v Culkin.
In People ex rel. Potterton v Potterton, petitioner sought a writ in Richmond County to have the respondent and their child who resided in Oneida County appears in Richmond County. The Court held that the writ must be made returnable in the county of confinement and not in the county where the convenience of the relator and his witnesses would best be served. The Court referred to the statute then controlling, namely CPA § 1239(2), the substance of which was not changed when it was carried over as the second sentence in CPLR 7004(c).
Assistance is also given in the practice commentary by Peter W. Thornton concerning CPLR § 7004(c). He writes (McKinney’s Cons. Laws, Book 7B, p. 287):
‘The second sentence, dealing with persons not detained in a state institution, provides that the writ shall be returnable in the county where issued. This may be a county other than where the person is detained, see CPLR § 7002(b)(1–4). The provision that where the petition was made to the supreme court or a supreme court justice outside the county of detention, the writ may be returnable before any judge authorized to hear it in the county of detention, indicates that the writ should be made returnable in the county of detention unless the petition was made outside the county of detention for the reason that there is no judge in the county of detention capable of issuing the writ based on CPLR § 7002(b)(4)).’
Sub. (b)(4) of § 7002 provides that the petition for the writ shall be made to the county judge being or residing within the county in which the person is detained, or if there is no such judge within that county, or if all judges within the county being capable of doing so have refused to issue the writ, the petition may be made to a county judge being or residing within an adjoining county.
Palmer v Palmer decided that a motion by a petitioner to withdraw a writ granted by the Sullivan County Supreme Court for custody of children detained in Dutchess County. The writ was originally referred by the Sullivan County Justice to Family Court in Dutchess County. The respondent appeared and made a cross motion for custody. The Court refused to allow the writ to be withdrawn by the petitioner, inasmuch as the respondent in turn had sought affirmative relief in Dutchess County. The Court also stated that writs have traditionally been made returnable in the County in which the child whose custody is sought is being kept or detained.
For the reasons stated above, the Court holds that the proceeding to obtain custody of the children should be brought in the county in which they are residing, as part of the divorce proceeding now pending in Otsego County.
The writ herein referred to this Court is hereby dismissed, and all matters between the parties hereto shall be decided in Otsego County.
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