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Court Lacks Jurisdiction in Custody Case


Child custody disputes are always difficult for everyone involved. They become even more difficult when a traumatic incident occurs that changes all of the rules. Whenever a couple divorces, the custody of the children becomes of paramount concern. If one parent gets primary custody and lives a great distance away, it can pose a hardship on the other parent to maintain a meaningful relationship with the children. It is always the goal of the New York Family Court to take action that is in the best interests of the children. A New York Family Lawyer said toward this goal, the New York Family Court seeks to instill in the primary custodial parent that it is essential that the children are not used as leverage against the non-custodial parent. The children will benefit from continuing a positive relationship with both of their parents. Sometimes, this problem is enhanced by traumatic circumstances that have a strong emotional impact on the parents and the children who are involved.

One such case began when a couple were married in 1980 in Florida. By 1986 they had determined that they could not live together and were divorced. They had three children at the time of the divorce. Full custody was awarded to the mother in Florida. In 1988, a man who knew the mother only by acquaintance broke in to her home and kidnapped the two daughters. He raped and tortured the little girls. A New York Custody Lawyer said one of the girls died as a result of the attack. The other one was seriously injured.

Following this incident, the father filed a motion with the Florida Court to change the primary physical custody of the children to him. The petition was granted and the children moved with their father to Rochester, New York. The father had promised the court under order of the court that he would continue to take the surviving child to counseling to help her deal with the trauma associated with the rape and death of her sister. The mother was granted liberal contact and access to the children.

However, after removing the children to Rochester, the father discontinued the required counseling for the child. During the first three years, he complied with the court ordered visitation. However, after that third year, the father began to refuse to comply with the visitation agreement. The father stopped allowing the children to talk on the phone with the mother and took several steps to alienate the children from their mother. In 1995, the mother filed a contempt of court motion against him in Florida Family Court. He was found guilty of the charge and counseling was ordered with the mother and the children in order to start mending the rift between them that the father had caused. In 1996, the father again refused to comply with the court order to allow the children to go to Florida to spend the summer with their mother.

In 1996, the mother filed an emergency motion accusing the father of contempt of court for a second time. He was found guilty again and was ordered to comply with the original court order. This time, the father started the little girl in therapy. A Nassau County Family Lawyer said he filed an order on 1996 to show cause to prevent the children from having visitation with their mother. He filed the motion in the New York Family Court. His motion was to prevent the children from having visitation with their mother which was ordered by the Florida Family Court. The order was denied and he was ordered to comply with the Florida Court order. The New York Family Court determined that the children needed to have a Guardian ad Litem in the state of New York to represent them in any more disputes between their parents.

In June of 1996, the father filed a temporary restraining order that would keep the children in Monroe County Supreme Court and not allow them to return to Florida for visitation. He alleged in this temporary restraining order that the children’s mother was guilty of child neglect. The court granted the temporary restraining order in New York until a hearing could be held to determine which jurisdiction would handle this family’s child visitation issues. In August of 1996, the court determined that New York State did not have jurisdiction over the child custody dispute that began in the Florida Family Court.

Because the father had failed a third time to allow the children to visit in accordance with the court order, the mother filed another contempt of court motion. The father was again found to be guilty of contempt of court in the Florida Family court. It was during this hearing that the mother filed a petition to regain primary custody of the children. An emergency petition ordering the change of custody was filed in October of 1996. A Queens Family Lawyer said the father refused to respond to the judgment and a default order was issued against him in January of 1997.

Following this third contempt of court, the New York State Appellate Division ruled that New York State did not have any jurisdiction to address the custody issues in this family. They ordered that the Florida Family Court had sole discretion when it came to establishing custody and visitation issues involving these two children. Florida Family Court held a hearing to decide on the change of custody petition that the mother had filed in that court. The mother was granted sole custody of the children. The court decided that the children would live with their mother. The move was scheduled for a time period within 72 hours of the children’s last day of school for that year, but no later than June 15. The court determined that the change of physical residence was necessary because the father repeatedly refused to comply with the orders of the Florida Court. The father refused to appear for Florida litigation or to respond to it. The father was continually attempting to alienate the affections of the children so that they would resent their mother. The father attempted to use the news media in an attempt to circumvent the court orders. The father refused to accept that the children would need psychiatric help to assist them the trauma surrounding their sister’s death and the sexual assault of the surviving daughter.

During these proceedings, the children stated that they had a good life with their father and stepmother and that they did not want to live with their mother. The court issued an order requiring the children to attend therapy with the mother to help ease the transition for them. The father filed a motion to remove the case from the Florida Court and have the New York Court resume jurisdiction. He stated that moving the children would cause them harm in that they have a stable relationship in his family and exposure to their mother would only uproot them again. The court determined that the New York system has no jurisdiction in this case and the he would have to comply with the Florida ruling.

At Stephen Bilkis & Associates with its rape lawyers there are convenient offices throughout New York State and Metropolitan area. Our child custody attorneys can provide you with advice to guide you through difficult situations. Hiring a divorce Lawyer can prevent you from losing precious time with your family.

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