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Petitioner Discovers Previous Divorce Proceedings Never Finalized


A New York Family Lawyer said a husband and wife, who are New York residents, were married in a civil ceremony while in Las Vegas, Nevada. At the time of the said marriage, the wife 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. However, the prior marriage was in reality not dissolved until the issuance of a Judgment of Divorce which incorporated but did not merge with the Agreement. This notwithstanding, the husband and wife 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.

Difficulties apparently ensued between the couple in 2004, prompting the wife a practicing attorney to commence child custody, family offense and child support proceedings against her husband in Nassau County Family Court. A Temporary Order of Protection was issued in the wife’s favor. There was Child Protective Services involvement with the family. The Family Court entered a Temporary Order of Support ordering the husband to pay temporary support and child care expenses in the sum of $486 biweekly to the wife. The husband was apparently current in his child support payments. Those proceedings were, however, eventually either withdrawn or dismissed by the Family Court.

Shortly thereafter, a New York Custody Lawyer said the husband commenced an Action for Annulment against the wife in the District Court of Clark County in the State of Nevada, on the grounds that the wife 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 wife failed to answer or appear on that action and a default was declared against her. The Judicial District Court issued a Decree of Annulment declaring the second 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 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 Long Island Family Lawyer said following the commencement of the Nevada action but prior to its Decree of Annulment, the wife also commenced the instant action against the husband to declare the nullity of a void marriage in Nassau County Supreme Court, seeking the annulment of the marriage, necessaries for the living expenses of the parties’ child and recovery of an automobile. The 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 husband, who, in the interim, also returned the automobile to the wife.

A Long Island Custody Lawyer said that simultaneously with this action, there are two contentious child custody proceedings currently pending against the wife in Nassau County Family Court. On November 15, 2005, the wife’s former husband commenced a child 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. The husband also commenced a child custody and visitation proceeding against the wife in Family Court, raising similar allegations of maternal unfitness as herein. Those proceedings are currently subjudice with an appearance scheduled.

By Order to Show Cause, the wife moves for consolidating the Family Court support proceedings with this action; granting her child custody of the parties’ child; awarding her child support and the proportionate share of child related expenses pursuant to the Child Support Standards Act; and directing the husband to immediately return her automobile. The wife argues that the Supreme Court is the proper venue to air the issues of child custody and necessaries, and that she should be the husband’s custodian because, among other things, the husband has a history of mental illnesses, drug and gambling addictions incompatible with the best interests of the child.

In opposition to the motion, the husband argues that it is the wife who is an inappropriate custodian suffering from alcoholism, bipolar disorder and parenting failures, and cross-moves, by Notice of Cross Motion, for an order dismissing this proceeding outright in favor of a reference and consolidation with the Family Court’s child custody proceedings on the grounds that they involve similar factual and legal issues as well as parties and witnesses. The Court agrees.

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 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 husband has sufficiently established that a referral of this proceeding to the Family Court is warranted. It should be initially noted that the wife 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, the 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 child custody and child 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 husband against the wife. The matters should not be heard in different forum at the whim of the wife.

Moreover, the Family Court is fully familiar with these parties as a result of the pendency of the other child custody proceeding between the wife and the prior husband, which involves the subject child’s half-brother. If this matter was 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 Child Protective Services (CPS) workers being questioned. Since the wife may obtain full redress of her child 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 wife’s motion is hereby referred to the Family Court, and the husband’s cross-motion is granted in part and also referred insofar as it seeks child custody and support of the parties’ child. The remaining causes of action are hereby dismissed without prejudice to reinstitution in the proper forum. The wife’s attorney shall file a copy of this referral order with the Clerk of the Nassau County Family Court.

Family squabbles are always temporary because no matter what happens, a family is always a family. If you are pursuing a divorce proceeding and you want to make sure that you will be awarded of child custody, hire the Nassau County Divorce Lawyer together with the Nassau County Child Custody Attorney or Nassau County Family Lawyer from Stephen Bilkis and Associates.

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