Brown v. Brown
| Decision Date | 09 February 1972 |
| Citation | 337 N.Y.S.2d 465,71 Misc.2d 818 |
| Parties | Michelle BROWN, Petitioner, v. Elmer J. BROWN and Jennie Brown, Respondents. |
| Court | New York Supreme Court |
Giamboi, Reiss & Squitieri, New York City (Joseph Giamboi, New York City, of counsel), for petitioner.
Palmer & Johnson, Tupper Lake and Smiley, Schwartz & Herman (Guy Smiley, New York City, of counsel), for respondents.
By order to show cause, a young mother seeks custody of her four year old son.
The child was in her custody from birth to July 26, 1971, when the Family Court in Franklin County, New York, under a neglect petition of the paternal grandparents, placed the child temporarily with them. Since December 17, 1971, the mother again has the child under circumstances which will soon be mentioned. The mother's residence is in Bronx County. This is recognized in a Family Court order of October 7, 1971.
At the outset, the attorney for the paternal grandparents has moved to dismiss this custody petition, contending this court has no jurisdiction, that the stipulation in the Family Court of Franklin County became its order, that thereby custody was granted to the father's parents, and that any re-litigation of custody must be in the Family Court of Franklin County.
This court is in accord with the view that it is not wise to sit in review of the decision or judgment of another judge of the same court or of a court of coordinate jurisdiction (Kamp v. Kamp, 59 N.Y. 212; In re Hines, 2 Cir., 88 F.2d 423).
Because the child was taken from Franklin County where the paternal grandparents reside and with whom temporarily the boy had been placed by the Family Court of that county, a warrant for her arrest and also for her mother's arrest was issued for custodial interference on January 7, 1972 by the Village Police Justice.
Her marriage on July 10, 1966 was indeed not a felicitous one. The young man she married--son of prominent and good parents of their community--has given them much concern. His record is not one which would be conducive to a suitable and happy conjugal life.
During their five years of marriage, she states he has lived at home with her and the child but a few months because of his repeated arrests and incarcerations. The neglect proceeding initiated by his parents charging her with neglect of the child was the beginning of a series of orders that seemingly place her in the inextricable toils of the law.
The following is the sequence of court dispositions. On July 8, 1971, the Family Court (herein all references are to Family Court of Franklin County) issued a protective order granting temporary custody to the mother and not to the paternal grandparents, who, respectively, are 81 and 74 years of age.
On July 26, 1971, the Family Court vacated its prior order of July 8, 1971 and issued its new order granting temporary custody to the same grandparents. It also was a protective order against the child's father. A separate protective order was issued against the child's mother.
On October 7, 1971, a Family Court order approved the stipulation dictated by the attorneys for the parties placing custody in the paternal grandparents subject to the supervision of the Probation Department. It also provides that the child's parents '* * * shall have visitation rights to be set by the Probation Department,' recognizing that 'in fixing the rights of visitation for Michelle Brown (the mother) to keep in mind that her residence in the Bronx will justify longer periods of visitation on the occasion of each visit than would otherwise be allowed in access of less frequent visits.'
On October 28, 1971, a default divorce decree entered against her, in the Supreme Court in Franklin County, refers 'all motions pertaining to the custody of the child, the visitation rights of the defendant and support for the child to the Family Court of the appropriate county'.
On the occasion of the young lady's visitation of her child on December 17, 1971, accompanied by her mother, feeling she could no longer suffer the arbitrary and capricious restrictions in visiting her child, which were imposed by the Probation Officer to whom authority in fixing visitation rights was delegated, she decided to take the child with her to her home.
She urges that the stipulation of October 7, 1971 was entered into when she was emotionally distraught and felt coerced because she was told the alternative was the child would be placed in an institution.
Does the temporary disposition of custody by the Family Court at that time under the circumstances attending it, preclude this court of plenary jurisdiction from entertaining a special proceeding to consider permanent custody upon all new factors occurring since then? This appears to be the objection raised to it. The contention is that it would be a re-litigation. The natural mother's right to establish a home and bring up her child is fundamental. Only if she is not a fit person to do so, may a non-parent be considered to undertake the task (Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196, 203, 324 N.Y.S.2d 937, 943).
The propriety of entertaining this proceeding by this court will now be considered. It is incontestable that the Supreme Court has inherent jurisdiction over custody proceedings....
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