Legal Question in Civil Litigation in New York

Malicious Prosecution

Daughter.s mother died of cancer in August of 2005. Mother placed daughter into father's custody prior to being hospitalized. Mother of decease aquired subject child from home of father's mother without permission from either parent. Mother of decease thereafter filed abandonment charges against father under false pretenses via child custody case whereby obtaining temporary order of custody and filed for insurance benefits for the child. In March of 2007 courts awarded child to father stating allegations against father were falsely made. Can deceases mother be charged and sued for malicious prosecution?


Asked on 7/19/07, 9:34 am

1 Answer from Attorneys
Mark S. Moroknek Kelly & Curtis, PLLC.

Re: Malicious Prosecution

If I understand your question, these are the two grandmother's paternal and maternal fighting over custody of grandaughter. Maternal grandmother filed charges against father and lost -father now has custody. If the allegations she made against the father were made in the process of testifying, or as part of a criminal prosecution, no she can't be sued for malicious prosecution because the

District Attorney brings the case and court proceedings are privileged.

However, family court proceedings between the parties can be the basis

for a malicious prosecution case if the decision clearly stated the allegations were false. Also need to prove they were malicious.

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Answered on 7/19/07, 10:29 am


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