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Paternal Aunt Seeks Custody of Children


A New York Family Lawyer said that, on September 22, 1965 the parents of the foster children at bar, who are minors under the age of fourteen years, died in Jacksonville, Florida, where the parents and children had been domiciled. On September 25, 1965, petitioner herein, who is the children’s paternal aunt, together with her mother, who is the paternal grandmother, left Florida with the children for her home in Nassau County where they have since resided. Petitioner, who resides with her mother, had left her home in Nassau County for Florida on September 23, 1965 because of the sudden deaths of the children’s parents. Upon arriving in Jacksonville, petitioner had met with the objectants, the children’s maternal grandparents, who had been summoned from their home in Columbus, Georgia. Objectant mistakenly relying upon an improperly executed will signed by her daughter who had attempted to appoint petitioner the children’s testamentary guardian, on September 24, 1965 told petitioner, in substance, that petitioner would have shared custody of the children. On the same day, petitioner and her mother advised a judge of the County Judges’ Court for Duval County, Florida, in which Jacksonville is located, that they intended to take the children to their home in New York. The judge stated that, because no one else claimed custody of the children, he did not detect any objection to petitioner’s plan. We indicate the nature of the initial acquisition of the physical custody of the children by petitioner and her mother in order to emphasize that their conduct therein was not tainted by any unlawful or duplicitous act.

A New York Custody Lawyer said that, on December 1, 1965 objectants, still domiciliaries of Georgia, filed a petition in the county Judges’ Court for Duval County, Florida, seeking physical custody of the children. On January 24, 1966 petitioner filed the adoption petitions at bar in the Surrogate’s Court, Nassau County. On February 11, 1966 petitioner and others filed an answer in the Florida court objecting to the petition therein on the ground, Inter alia, that the adoption proceeding herein was pending before the Surrogate’s Court. On April 4, 1966 objectants filed their objections to the petitions at bar and, on April 28, 1966 a hearing was held thereon in the Surrogate’s Court. On May 4, 1966 the Florida court made an order granting custody to objectant during the Christmas and summer vacations from school and to petitioner during the remainder of the year and appointing petitioner and said objectant joint guardians of the persons of the children. However, on June 23, 1966 the decree now under review was made, dismissing the objections to and granting the adoption petitions at bar.

A Westchester County Family Lawyer said that, the objectants argue that (1) the Federal Constitution requires that full faith and credit be given to the Florida order with respect to its provisions concerning full custody and guardianship and (2) the adoption is void because the consent of a person or authorized agency having lawful custody of the children had not been obtained. At the time of the entry of the adoption decree, petitioner, as the children’s paternal aunt, did not have their lawful custody, as that custody is defined by section 109, subdivision 6, of the Domestic Relations Law, for she neither was their natural guardian nor had she been appointed their guardian by a New York court.

The issue in this case is whether the adoption is void.

A Westchester County Child Custody Lawyer said the Constitution does not require the extension of full faith and credit to the Florida order either with respect to its provision for guardianship. In addition, the record shows that, from the time of their departure from Florida until the hearing before the Surrogate, the children had been in the custody of the paternal grandmother as well as in the custody of petitioner. The paternal grandmother’s custody of the children is a lawful custody ‘otherwise authorized by law’ under section 109, subdivision 6, of the Domestic Relations Law, because she was their natural guardian. The consents of the paternal grandmother as natural guardian of the children were obtained in the adoption agreements submitted with the petitions herein.

Accordingly, the court held that, the requirement of section 111, subdivision 4, of the Domestic Relations Law was satisfied.

If you have issues regarding custody, seek the legal advice of a Nassau Order of Protection Attorney and/or Nassau Custody Attorney at Stephen Bilkis and Associates.

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