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Court Determines Custody Issue


A former husband filed a petition to modify a divorce decree order made by another court and seeks a sole custody of his son. A decree of divorce was filed and was made by the Supreme Court. The basis of authority for the decree was a separation agreement entered into between the couple which had been adhered to by them for one year prior to the commencement of the proceeding. A New York Family Lawyer said the separation agreement entered into between the husband and his wife was filed in the county clerk’s office. The terms of the separation agreement were included but not merged in the decree of divorce.

The decree ordered that all matters arising in the future pertaining to the enforcement of the decree or to requested modifications of any provision whether pertaining to child support, visitation or child custody, be and the same are referred to a family court or to the appropriate court having authority to the issue. A Nassau County Family Lawyer said the separation agreement indicates that the couple was married and lived in New York and the wife shall have custody of the children of the marriage. The husband’s visitation rights were outlined in some detail.

The issue came on for a proceeding and the father appeared by counsel but the mother failed to appear. The court was informed that the child who is the subject in the proceeding lives in Connecticut but runs away and is in New York with the father.

The issue came again in court. There was no appearance by the father, but he was represented by his counsel. There was also no appearance again by the mother. A law guardian was appointed for the child and the issue was referred to the probation department for a child custody investigation.

Consequently, the court received from the mother a motion to dismiss the petition. A Nassau County Child Support Lawyer said the mother moves for dismissal on the grounds that the court has lack of authority on the issue and that she was not served with notice of the proceeding in a timely manner. Also enclosed in the motion were copies of papers prepared by the mother for a proceeding in Superior Court in Connecticut. The court received additional papers related to a proceeding in Connecticut from the mother.

The father submitted an affidavit in response to his former wife’s motion to dismiss. The father asserts that his son arrived from Connecticut by bus in the early morning and the child had previously refused to return to his mother’s home in Connecticut following a visitation period, but had been persuaded to do so by his father. He further states that their child was born and resided in New York until the time of the implementation of the separation agreement. The father prays the court to deny the mother’s motion to dismiss and argues that the court has authority to hear the pending issue.

Based on records, in New York the best interest of the child is a primary importance in custody determinations. The concern of the New York courts with the best interests of the child is when it is under traditional conflicts of law principles, significant contacts with New York have been established and there is considerable evidence as to the child’s future care, protection, training and personal relationships within the state is reflected in the decisional law. Further, in the beginning of the uniform child custody jurisdiction act, certain jurisdictional bases were statutorily set out which had to be met before the courts could assume authority in child custody matters and look to the child’s best interests.

The family court has no authority on the subject matter over the question of child custody. The mother’s motion to dismiss the proceeding is granted and the petition filed seeking a modification of a divorce decree is dismissed.

When marital problems strike a home no one can help the family but themselves. Whether you need an order for protection, have a custody issue or need to file for divoce, if the issues remain unsolved, New York Family Attorneys can help. A New York Visitation Attorney can provide you with options to pursue when visitation troubles arise. A New York Child Custody Attorney at Stephen Bilkis and Associates can also assist you when you are trying to consider child custody actions

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