Adams v. Rhoades

• Decision Date: 23 February 1968
• Parties: In the Matter of June ADAMS*, mother, on behalf of Edmond Rhoades III* and two other sons, Petitioner, v. Edmond RHOADES II*, Respondent.
• Court: New York City Court

Page 710

288 N.Y.S.2d 710

56 Misc.2d 249

In the Matter of June ADAMS*, mother, on behalf of Edmond

Rhoades III* and two other sons, Petitioner, v. Edmond RHOADES II*, Respondent.

Family Court, City of New York, New York County.

Feb. 23, 1968.

Richard M. Duignan, New York City, for petitioner.

Foley, Hickey, Gilbert & Currie, New York City, John M. Foley, New York City, of counsel, for respondent.

MILLARD L. MIDONICK, Judge.

This proceeding was commenced by a petition of a custodial mother for upward modification, under Section 461 of the Family Court Act, of a Nevada decree of divorce rendered in 1964, providing substantial sums per month for the support of three minor sons of respondent, all still under age 14, whose custody was given by separation agreement of 1964 to the petitioning mother.

The issues before me are:

(A) Respondent's contention that the arbitration clauses in the separation agreement of the parties, dated 4 September 1964, which was incorporated in and by its terms survived the Nevada divorce decree, ousts the Family Court of all jurisdiction over support of these children, their schooling, custody and visitation.

(B) Respondent's further contention that even if the Family Court retains some supervisory jurisdiction to protect the interests of these minor children of respondent and petitioner, no discovery or examination before trial as to respondent's alleged change of circumstances for the better in his earning capacity, or as to his ability to pay more support for his sons, should be ordered by Family Court in advance of either arbitration or plenary trial in Central Trial Term of Family Court.

(C) The respondent's further contention and motion that all proceedings in the Family Court be stayed pending the award in arbitration as to support and schooling, and pending the decision of the Court of Common Pleas, Stamford, Connecticut where a habeas corpus proceeding was brought by the respondent father praying transfer of custody of the children to him, said habeas corpus writ having been procured by the father in the place where the mother and the children live, but sought after the commencement of this support proceeding here.

No one questions the propriety of venue or jurisdiction over the person of the father in Family Court, since the respondent father lives and works in New York County. But respondent for the reasons outlined, does question the power of Family Court to rule on the subject matter involved; and with respect to pretrial discovery and examination as to his ability to pay more, the respondent urges that such an order would be improvident even if this Court has jurisdiction of the subject matter.

In the few minutes of hearing leading to an order by me of temporary support and visitation, and a limited stay of further proceedings here for about two months, the petitioning mother proved and the respondent did not controvert, that the behavior of one of the sons had deteriorated substantially since the separation agreement and the divorce, and that the boy was consequently enrolled in an expensive boarding school specializing in treatment of disturbed children. The respondent contends, however, that a change in custody to himself will moderate the expense and improve the condition of all of the children; he further urges that the custody issues would be better resolved in the Connecticut court with psychiatric, school and other specialized evidence available in the very locale of the Stamford court house, and that the support issues would more properly he heard in arbitration as agreed, and that the petitioner should be compelled to honor child visitation availability to respondent father which has been recently suspended, triggering respondent's counter measure of suspending support payments.

Petitioner on the other hand pressed for the resolution of all issues in the Family Court on the grounds that custody should remain as agreed and decreed, unless this Court should find reason, on the basis of evidence including expert social and investigatory resources, sufficient to require modification for the welfare of the children; that upward modification of support, and issues of care, treatment and schooling are within the expert competence of the Family Court and its auxiliary psychiatric, psychological and probation services, rather than arbitration or habeas corpus proceedings.

That habeas corpus proceedings in a court of general jurisdiction are not usually the best way to resolve child custody problems in a 'delicate family situation' where 'a sensitive investigation is required,' has been held by the First Department in People ex rel. Borella v. Borella, 21 A.D.2d 871(5), 251 N.Y.S.2d 374. The Fourth Department has also ruled that a court of general jurisdiction does not usually have the facilities to ascertain the 'best interests of the child * * * to which, in the event of conflict, all others must be made to defer. * * * We, therefore, refer the case to Family Court of Oneida County for a full hearing and exploration with the aid of such investigations by and reports from social, psychiatric and other services as are available in Family Court and which the court may deem to be helpful.' Lockwood v. Jagiello, 24 A.D.2d 544(9), 545, 261 N.Y.S.2d 420, 421.

Nevertheless, since these three children are not living within the State of New York, and since this Court was assured at the hearing that the Court of Common Pleas of Stamford, Connecticut, has a psychiatrist and investigators in its own auxiliary services, and since the school authorities and their treatment personnel are more readily available to give evidence in the locality of Stamford, and since the former marital domicile before the break-up was in Connecticut and the petitioner and the children have continued to live there after the originally intact home was put asunder, this Court will abstain from exercising its powers and it will await the custody outcome in the Court of Common Pleas of Stamford, Connecticut. This abstention is subject to review at Central Trial Term of this Court on March 4, 1968 or thereafter, if the welfare and best interests of the children appear to require this Court to deal further with problems of custody or visitation or schooling. It is hoped and expected that this Court will wish, and indeed both parties will wish, merely to enforce the Connecticut determination in habeas corpus. This Court does not mean to detract from the respect due the courts of our sister State, but it must be recalled that both parties saw fit to resort to the courts of Nevada, not Connecticut, in 1964 for the original custodial arrangement; and the respondent did not see fit to commence his custodial suit in Connecticut until after and apparently as a reaction to the support proceeding at bar; moreover, the petitioner has chosen, and chosen first, Family Court in New York as her forum, not a Connecticut court. In connection with such a suit, or independently, the Family Court may entertain the modification of custodial arrangements made by the court of another jurisdiction. Family Court Act, Section 654; Matter of Chin v. Yen, 41 Misc.2d 650, 246 N.Y.S.2d 316.

That New York can review and change the custodial arrangements made in the decree of Nevada in 1964, and even in the expected decree of Connecticut in 1968, seems clear. See Bachman v. Mejias, 1 N.Y.2d 575, 580, 154 N.Y.S.2d 903, 906, 136 N.E.2d 866, 868; cf. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240; Lovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008; and see Note, Ford v. Ford: Full Faith and Credit to Child Custody Decrees?, 73 Yale L.J. 134. It is not that child custody decrees of other states are not entitled to full faith and credit (but compare Rogers and Rogers, The Disparity Between Due Process and Full Faith and Credit: The Problem of the Somewhere Wife, 67 Columbia L.R. 1363, especially page 1369 footnote 43). Full faith and credit means only that faith and credit to which such child custody decrees are entitled in the state from which the decrees are taken. The problem with child custody decrees, by their very In futuro nature being transitory, ephemeral and subject to change, and based to some extent on transcendental or unformulatable grounds, is that they lack the persistence of ordinary judgments for money damages, for replevin or for title. One can replevy a painting by Rembrandt, or sweep away the cloud on the title or right to possession of real property, and when done, the judgment is truly Res judicata. Not entirely so with judgment for custody of a minor child. The child continues to develop and the interrelationship between the custodial home and the child grows on and on, like the changing stability of a ship in the course of both alteration or construction by a naval architect, and changes in weather, cargo, mission and command. How then can the courts even of the same state feel bound by the prior custodial decision of their own courts, if continuing the current home is not in the best interests of the child? If such a doctrine were to be announced, it would appear violative of substantive due process of law for the child. And this would be so even if the child had a guardian Ad litem in the earlier custody litigation. Res judicate simply must give way to the current best interests of a child on the issue of...