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Wife Seeks to Obtain TRO Against Husband

Mr. H married Mrs. C on August 21, 1975. They had two children from that marriage. K born July 16, 1976 (13) and A born June 25, 1978 (11). Mr. H and Mrs. C were divorced on April 3, 1985 and both children presently reside with their natural mother, respondent, Mrs. C. H then married petitioner M on June 8, 1986. They also have two children: AY born April 8, 1987 (2) and IY born September 29, 1988 (1). Petitioner, M also has a child from a prior marriage, N born December 18, 1980 (9), who resides with her, Mr. H, AY and IY.

According to the terms of the April 3, 1985 judgment of divorce which incorporated a separate agreement entered into by C and H, C, was granted custody of the two children, K and A, while H was granted visitation rights. On more than one occasion, H violently assaulted Mrs. C resulting in numerous Orders of Protection from the Kings County Family Court. C thereafter brought an Order to Show Cause in October 1988, inter alia to suspend visitation by H. In this Order to Show Cause, the request was made for a temporary restraining order restraining H from undertaking visitation. This T.R.O. was stricken by Justice MS when the Order to Show Cause was signed. However, the Appellate Division reinstated this T.R.O.

The motion came to be heard before Judicial Hearing Officer DC. After a hearing J.H.O. DC rendered a decision on June 30, 1989, stating that there is no question that defendant, [Mr. H] did violently and viciously attack and severely bruise and injure the plaintiff Mrs. C in the presence of his children who were struck several times.

The defendant has a history of violence committed on the plaintiff during the marriage and after the divorce resulting in orders of protection issued by the Family and Criminal Courts. The children in this proceeding were interviewed in camera by this court. They expressed fear and extreme anxiety. The court is satisfied from the results of this interview that visitation must be discontinued.

Despite the judicial determination that Mr. H be denied visitation with K and A, petitioner on behalf of her children now asks this court to grant them visitation with K and A.

The threshold question that must be answered before this motion can be considered is whether petitioner, on behalf of her children, has standing to ask for the requested relief, namely visitation with the children’s half-siblings. If this inquiry is answered in the negative, the proceeding must be dismissed. The New York Legislature recently amended Sec. 71 of the Domestic Relations Law concerning a special proceeding or writ of habeas corpus to obtain visitation rights.

In respect to certain infant siblings, where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf of a child, whether by half or whole blood, may apply to the Supreme Court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court by order after due notice to the parent or any other person or party having the care, custody and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such brother or sister in respect to such child.

Upon a careful reading of the aforementioned statute, it becomes apparent that petitioner M, on behalf of her children, IY and AY does have standing to bring this proceeding. However, it is ordered that this proceeding be dismissed with regard to N, because she has no standing to proceed under Sec. 71 of the Domestic Relations Law due to the fact that she is not a half-sibling of respondents K and A.

Accordingly, it is ordered that a hearing is necessary to determine what is in the best interest of all the children regarding the issue of visitation. The court notes that this is not part of a matrimonial proceeding and thus should have been brought in the regular civil part. However, in light of the previous disposition of the case, the matter should be referred to Judicial Hearing Officer DC to “Hear and Determine” upon the consent of all parties, and if they do not consent then it shall be to “Hear and Report.”

A marriage can be estranged by a lot of reason, things and situations between spouses, when this happened; the common result is that custody of their children shall be given to one spouse and the other is given only visitation rights.

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