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Court Discusses Jurisdiction of Surrogate Court


The petitioner in this custody proceeding is the natural mother of a child born in 1976 in Brooklyn. The respondent is the child’s paternal grandmother, who was appointed by as guardian of the person for the child in December 1977. The petition alleges that in May, 1977 the father 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. The petitioner-grandmother in the Surrogate’s Court proceeding (respondent herein) alleged the natural mother had abandoned the child, that she was a drug addict, and that her whereabouts were unknown. The father executed a waiver and consent to the appointment of his mother as guardian. No supporting affidavits as to the circumstances of the mother’s alleged abandonment, her addiction, or her disappearance were submitted; nor was an affidavit of diligent search provided. 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 July 19, 1978 petitioner-mother filed a petition for custody of her child in the Family Court. The issue before this Court is whether it 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. The applicable law is to be found in Article 6 of the New York State Constitution, the Family Court and Surrogate’s Court Procedure Acts (hereafter “FCA” and “SPCA”) and pertinent cases.

Unlike the Supreme Court, neither court has general original jurisdiction in law and equity. The powers and jurisdiction of both the Surrogate and the Family Court Judge are limited. Article 6, Section 12 of the NYS Constitution states:

“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.

“e. The surrogate’s court shall exercise such equity jurisdiction as may be provided by law.”

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

The Surrogate of Kings County was quite correct when he issued letters in this case. Article 17 of the SCPA provides a means for issuance of letters expeditiously which will afford guardianship of the person often necessary on an emergency basis to provide food, shelter, education, and medical care to an infant who might otherwise be abandoned. Article 17 SCPA, however, 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. In most instances, guardianship of the person is issued along with guardianship of the property. 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. 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.

This court has before it a petition for custody by a natural mother who has never been adjudged neglectful or unfit. There is no record of any inquiry by the Surrogate as to the mother’s custodial fitness. There is nothing attesting to efforts made to apprise the mother of the guardianship proceeding. Careful inquiry is required when a parent’s rights to custody and guardianship are at stake. This court of course may not vacate letters of guardianship issued by the Surrogate. SCPA ยง 701(3) provides “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.”

It cannot be argued that the Surrogate’s Court’s facilities for deciding custody disputes are comparable to those available in this court (Family Court). 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 this 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 readily available to it. As a matter of 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. The Surrogate’s Court mandate is to settle the affairs of decedents. As to infants, its power to award guardianship of the person derives 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. The appointment of a guardian may have been appropriate at an earlier time when no contest as to custody was apparent, but now that fundamental family relationships are challenged, it is my opinion this court is the best forum in which to decide them.

This court is not arbitrarily asserting jurisdiction after dissatisfied litigants have failed to obtain relief elsewhere. It is simply hearing a case the first time that all concerned parties are before a court of competent jurisdiction. Furthermore, separate awards of custody and guardianship are not necessarily in conflict. “Guardianship of the person does not always, under all conditions, give absolute rights to the custody of the person.” Should the petitioner be 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 this court. In any event, as suggested by Surrogate Bennett in Matter of Abeles, supra, this court’s order in the custody proceeding will be brought to the attention of the Surrogate. What the Court said at 248 N.Y. page 72 at 161 N.E. page 423 of Raymond v. Davis, 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.”

In the interest of due process, prompt resolution of family disputes, and judicial efficiency, there can be no doubt that this court’s assumption of jurisdiction is warranted. Motion to dismiss is therefore denied.

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