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Petitioner Files for Custody of Child


This is a proceeding for the custody of minors under Article 6 of the Family Court Act brought before the Family Court of Kings County.

The petitioner is the natural mother of a child born in 1976 in Brooklyn.

The respondent is the child’s paternal grandmother who was appointed in December 1977by the Surrogate of Kings County as guardian of the person for the child.

The child’s putative father, who consented to guardianship by his mother, is not a party in this proceeding. Certainly, the parents were never married and paternity was not adjudicated. Nevertheless, the parties agreed that the respondent is the paternal grandmother.

Sometime in May 1977, the father allegedly took the child from the petitioner and gave it to his mother, and that “petitioner was afraid to act” because of previous assaults and threats.

According to the grandmother, the natural mother abandoned the child, was a drug addict, and her whereabouts were unknown.

The father executed a waiver and consent to the appointment of his mother as guardian. However, no supporting affidavits as to the circumstances of the mother’s alleged abandonment, her addiction, or her disappearance were submitted, and no affidavit of diligent search was ever provided.

Accordingly, the letters of guardianship were issued on the ex parte application of the respondent herein, without notice to the mother, and apparently without a hearing.

On 19 July 1978, petitioner-mother filed a petition for custody of her child in the Family Court. Respondent-grandmother moved to dismiss the petition on the ground that respondent’s letters of guardianship had not been revoked, and the only proper forum for the adjudication of the custody question is the Surrogate’s Court.

Queens Probate Lawyers said the issue here is whether or not the instant Court may assume jurisdiction in a custody proceeding, where guardianship of the person has been awarded in a prior ex parte proceeding in the Surrogate’s Court.

Here, Article 6 of the New York State Constitution, the Family Court and Surrogate’s Court Procedure Acts (hereafter “FCA” and “SPCA”) and pertinent cases finds application.

Unlike the Supreme Court, none of the courts have general original jurisdiction in law and equity. As discussed in N.Y. Civil Practice Vol.12 and as provided for in Sec. 3.01(b) Family Court Proceedings, the powers and jurisdiction of both the Surrogate and the Family Court Judge are limited.

Article 6, Section 12 of the NYS Constitution provides: “d. The surrogate’s court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto, guardianship of the Property of minors, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law. xxx e. The surrogate’s court shall exercise such equity jurisdiction as may be provided by law.”

The Family Court’s jurisdiction, as set out in Article 6, Section 13, NYS Constitution, includes “the following classes of actions and proceedings xxx (2) Custody of minors xxx, and (7) as may be provided by law: the Guardianship of the person of minors xxx”

Separate sections are provided for in the Family Court Act. FCA §§ 661, 662, 663 governs guardianship and FCA § 651 Et seq. governs custody. In guardianship proceedings, the instant court has “like jurisdiction and authority as is now conferred on County and Surrogates courts.” In custody proceedings, this court has jurisdiction “with the same powers possessed by the Supreme Court in addition to its own powers.”

Here, the proceeding is akin to a habeas corpus proceeding. FCA § 651(b), as amended in 1978, further broadened the jurisdiction of a Family Court Judge by extending the court’s original jurisdiction to habeas corpus proceedings. This amendment evidences further the legislature’s intent to vest complete jurisdiction over family affairs in a court where they properly belong because of the auxiliary services available. In many instances, the Supreme Court dissolves a marriage and refers issues of custody and support to this court. Article 17 of SCPA is the statutory basis for guardianship proceedings in that court, including requirements as to notice, § 1705, form of proceedings, § 1706, and standards governing appointment, § 1707. In § 1707, a guardian of the person may be appointed “if the court be satisfied that the interests of the infant will be promoted.” In that same section, “the court may appoint a person other than the parent of the infant or the person nominated by the petitioner,” without specifying the grounds on which a parent may be replaced as natural guardian by another, even a stranger. It must be noted here that absent an adjudication of paternity this respondent-grandmother is yet a stranger to this child.

In contrast to the statutory language of SCPA § 1707, the Family Court is bound in its custody proceedings to a higher standard: “the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness xxx” as provided for in Domestic Relations Law § 70. In the case of Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976), well settled is the rule that a natural parent may be deprived of custody only when statutory grounds like abandonment, neglect, unfitness or “other like extraordinary circumstances” exist.

Here, the Surrogate of Kings County was quite correct when the letters were issued. As stated in Article 17 of the SCPA, issuance of letters may be made expeditiously in order to afford guardianship of the person, when necessary, on an emergency basis to provide food, shelter, education, and medical care to an infant who might otherwise be abandoned. However, Article 17 of the SCPA was never intended by the legislature and the Constitution to be the exclusive vehicle for determining custody by reason of the issuance of letters of guardianship ex parte. Guardianship of the person is issued along with guardianship of the property in most instances. Where there is no property possessed by the infant, the Surrogate issues guardianship of the person.

Here, bare facts were asserted in the Surrogate’s Court indicating that the infant was abandoned, and when these facts are controverted, as in this case, by a natural mother who comes forward for the first time to seek an adjudication of her rights, she should not be denied the forum of her choosing by the initiation of a proceeding without notice in another court.

The court at bar has before it a petition for custody by a natural mother who has never been adjudged neglectful or unfit. At the time, there was no record of any inquiry by the Surrogate as to the mother’s custodial fitness, and there was nothing attesting to efforts made to apprise the mother of the guardianship proceeding.

In Matter of Jasmine L., 84 Misc.2d 45, 375 N.Y.S.2d 755 (Fam.Ct. Bronx Co. 1975), it was ruled that a careful inquiry is required when a parent’s rights to custody and guardianship are at stake.

Of course, the instant court may not vacate letters of guardianship issued by the Surrogate. SCPA § 701(3) provides that: “No court except the court which issues letters shall have power to suspend, modify or revoke them, so long as the court issuing them has jurisdiction of the estate or matter in which the letters were issued.”

In Matter of Abeles, 65 Misc.2d 282, 316 N.Y.S.2d 752 (Surr.Ct. Nassau Co. 1970), Surrogate B said in a proceeding relating to letters of guardianship at page 283, 316 N.Y.S.2d at page 753: “It would be better procedure if a plaintiff, in an action for separation or divorce, included in his pleadings whether letters of guardianship of the person and property of an infant were issued by a court, and if custody is awarded to one of two co-guardians the decree should provide that the court that issued the letters of guardianship be so advised of the award of custody so the court can modify the letters of guardianship as to the person of an infant. (SCPA 714 and 701, subd. 3.)” xxx This court will not in any way interfere with a decree of a competent court or jurisdiction which provided for custody xxx.”

According to Surrogate B, there are situations where his court might issue letters of guardianship and another court would later determine the issue of custody.

Here, the respondent-grandmother relied heavily on Stolz v. New York Central R.R. Co., 7 N.Y.2d 269, 196 N.Y.S.2d 969, 164 N.E.2d 849 (1959). In that case, the court ruled that the Supreme Court erred in dismissing actions for wrongful death and personal injuries sustained by a decedent, on the ground that the plaintiff, an alleged widow, did not have status because her marriage was void, and the Court of Appeals held that the issue was for the Surrogate to determine. However, in the case of In Matter of Charboneau, 34 A.D.2d 1034, 310 N.Y.S.2d 871 (3rd Dept. 1970), a Supreme Court Justice was held to have erred when he relied on a Surrogate’s guardianship proceeding and failed to exercise his independent discretion over custody. The Appellate Division cited the case of Matter of Lee, 220 N.Y. 532, 539, 116 N.E. 352, 355 (1917) in ruling that a writ of habeas corpus is the proper procedure to decide custody.

Clearly, the instant proceeding is akin to a habeas corpus proceeding, as provided in FCA § 651(b). Custody as in this case and Charboneau, and status as in Stolz v. New York Central R.R., are completely different issues. The court in this case, having all the interested parties before it for the first time, will exercise the custody jurisdiction afforded to it by statute.

Moreover, the instant court is in a position to completely adjudicate the rights of the parties. A 1978 amendment to the Family Court Act added Section 564 which provided that in any proceeding before the court where there is an allegation that a person is the father of a child and it appears that the subject of the proceeding is an out of wedlock child, the court may make an order of filiation declaring paternity.

The fact that the Surrogate’s Court’s facilities for deciding custody disputes are comparable to those available in the instant court cannot be argued. These specialized services – Bureau of Mental Health Services psychiatrists, probation investigation and reports, home visits and a children’s waiting room – are the readily available personnel and tools with which the instant court discharges its duty to resolve family disputes. In contrast, the Surrogate’s Court concerns itself primarily with property questions arising out of the settlement of estates, and has no similar social services freely available to it. In fact, the Probation Department at the direction of the court, made at an earlier hearing, has already investigated the respective abodes of mother and grandmother and has conducted some interviews in depth. As the judge reasoned in the case of Raymond v. Davis, 248 N.Y. 67, 161 N.E. 421 (1928), a court of specialized jurisdiction must exercise its power so as to resolve all facts of the dispute rightfully before it. It is the Surrogate’s Court mandate to settle the affairs of decedents. As to case of infants, its power to award guardianship of the person derive historically from its duty to administer property. In contrast, the Family Court concerns itself with the more personal, and often more complex, questions of family relationships. In this case, the child’s property, if any, is not at issue. Indeed, the appointment of a guardian may have been appropriate at an earlier time when no contest as to custody was apparent. However, now that fundamental family relationships are challenged, the instant court is the best forum to decide.

The instant court is not arbitrarily asserting jurisdiction after dissatisfied litigants have failed to obtain relief elsewhere. The instant court is simply hearing a case the first time that all concerned parties are before a court of competent jurisdiction. Moreover, separate awards of custody and guardianship are not necessarily in conflict. As held by the courts, “guardianship of the person does not always, under all conditions, give absolute rights to the custody of the person.”

In case the petitioner is awarded custody, she may be advised to seek revocation of the guardianship grounded on the law of the case with respect to custody established in the instant court. In any event, as suggested by Surrogate B in Matter of Abeles, supra, this court’s order in the custody proceeding will be brought to the attention of the Surrogate. What the Judge said in the case of Raymond v. Davis, supra, regarding a claimant to a portion of the decedent’s estate in the Surrogate’s Court applies with equal force to the natural mother’s petition as to her family rights in this court: “To remit the claimant to another forum after all these advances and retreats, these reconnaissances and skirmishes, would be a postponement of justice equivalent to a denial. If anything is due him, he should get it in the forum whose aid he has invoked.”

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