Legal Question in Family Law in New York
Custody case pending
I have a cudtody case pending in family court against my husband. We have been separated since March/April 2005 but no papers were filed for divorce when the custody case began. I have a legal order of protection against him and as of right now he is only allowed supervised visitation with our two children. After I was granted the order of protection and given temporary custody of the children he filed a custody suit against me in the same court. We are set to go for a conference on April 11th and if a settlement is not reached we will go to trial on the 20th. On March 11th I was served with divorce papers from him which were filed in a different county court. As a part of the papers he put that he would like tp be granted custody of the children. I have two questions. First, is he able to file for custody when we already have a case pending, or could this be some sort of stradegy to have the family court custody case dropped. Is that possible or would the original case have precedence because it was filed first? And two, is it possible for me to have the divorce proceedings moved to a different county because I don't believe I'd be given a fair trial in the county he filed (his step father is the chief of police there).
3 Answers from Attorneys
Re: Custody case pending
I agree with Phroska L. McAlister. The family court case will be stayed and probably dismissed uless you both agree to continue the custody case in family court.
Jurisdiction is only proper where the parties reside and can be moved by you to a proper county.
As there is a Supreme court case now pending I strongly advise you obtain counsel to represent you in that matter. Supreme Court is more particular regarding the rules of discovery and procedure. There is some leeway if you make mistakes while representing yourself but they do not approach the relativly easy attitudes in Family Court.
Re: Custody case pending
Your Family Court Petition IS likely to be "Adjourned" and then "Dismissed," because the Supreme Court Divorce Action was filed and if continued, will cover the same matters and more, as your Family Court Action. Please be advised that Family Court has limited jurisdiction over matters concerning Domestic Relations or Family Law.
Further, please note that NY State Supreme Court Matrimonial Part and Family Court do have CONCURRENT jurisdiction over issues of custody, visitation and child support; and if both parties consent the Family Court MAY decide to continue to hear and determine your Petition.
However, Supreme Court, has EXCLUSIVE jurisdiction over the issue of the marriage and Ancillary issues to the divorce that includes, but is not limited to custody, visitation and support, issues.
Your husband probably was unable to file for divorce until recently, since your Separation, March/April'2005, had continued long enough for his grounds for divorce to have been perfected.
If you and your children do not now live in the County, or your "marital home" was not in the County, your husband chose, you may request via Motion, a "Change of Venue," to the County where the case properly should have been filed; or to either NY, Bronx or Albany County, a County where the case could have filed, for the convenience of all parties.
Good luck,
Good luck,
Re: Custody case pending
Venue is proper in any county in which the parties reside. The Supreme Court judge has discretion to consolidate the family court proceedings in the divorce action. However, since the case is trial ready, I would not expect the actions to be consolidated.
Daniel Clement
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