Joye v. Schechter
| Decision Date | 23 March 1983 |
| Parties | Elwood E. JOYE, Petitioner, v. Miriam E. SCHECHTER, Respondent. |
| Court | New York Family Court |
The matters before the court appear to be issues of first impression regarding, (a) the powers of a family court judge in a paternity proceeding to enforce an order of visitation, (b) proper procedure in processing an alleged violation of visitation in a paternity proceeding, and (c) may the court find a violation of a visitation order if no proof is offered of any negative act committed by the custodial parent.
The matter before the court is a paternity petition brought by Elwood E. Joye, the putative father. The respondent mother, Miriam Schechter, originally opposed an Order of Filiation naming the petitioner to be the father of the child, Carol Ann Schechter. The basis upon which she sought to dismiss the paternity petition was that the proceeding was barred by the Statute of Limitations, and further she was not seeking support from him. The court, in a decision dated January 14, 1982, ruled that section 517(c) of the Family Court Act was constitutional and further found that there was no merit in the mother's application to dismiss based upon the fact that she was not seeking support, and there was no likelihood that she would become a public charge. (Joye v. Schechter, 112 Misc.2d 172, 446 N.Y.S.2d 884; Matter of Kordek v. Wood, 90 A.D.2d 209, 457 N.Y.S.2d 156.) The court ordered a blood grouping test. The blood grouping test was taken and the test results indicated that it was 99.97% positive that the petitioner was the father of the child. The parties agreed that if the respondent did consent to an Order of Filiation, that the court would treat any future matter regarding visitation as if it was a custody petition before the court. The mother did consent to an Order of Filiation and then the court granted an Order of Filiation and ordered the matter be set down for examination of all of the parties including the petitioner's ex-wife. The reports from the Probation Department including the psychiatric and psychological examinations of all of the parties was received and shown to the attorneys for the parties and the law guardian. The respondent mother opposed the recommendation by Probation that the father be given visitation. A trial was held to determine whether or not the petitioner father should or should not have visitation with the child.
At the conclusion of the trial, the court found that the petitioner father is a fit father and that it would be in the child's best interest to visit with the father. It further found that the child does need counselling in order to have an orderly restoration of visitation. In its decision, which was orally delivered in the presence of both parties, the court stated the following: ... "The court firmly hopes that the respondent mother, whom this court found to be an intelligent and deeply concerned mother, will, as she has testified, cooperate with any order that the court would make in this matter..."
Based upon its decision, the court on November 16, 1982, ordered visitation and directed the parties to cooperate with the Nassau County Probation Department for counselling at the Long Island Jewish-Hillside Medical Center. The court further, on that same date, ordered the support issue to be heard by a hearing examiner.
The petitioner father has filed a violation petition against the respondent mother based upon his failure to obtain visitation with his daughter as set forth in the order of this court. The other matter before the court is the issue of support of the child. The support matter, prior to any hearing before a hearing examiner, was restored to the court's calendar due to the filing of the violation petition by the petitioner father. A trial on these issues was heard by the court.
The testimony of the parties during the trial reveals that the basic facts are not in dispute. It is not disputed that each Wednesday for a period of approximately thirteen weeks, pursuant to an order of this court, the petitioner father arrived at the mother's home for the purpose of having visitation with his daughter. The mother opened the outer door and announced to her daughter that he is here for visitation. She called out words to the effect that your father is here, come here and speak to him. The child responded with words indicating that she did not want to see him and that she hated him. All these conversations were taped by the mother in anticipation of a possible trial. The child discovered that the mother was taping these conversations. The father never had any visitation with his daughter.
The testimony further showed that the mother did attend with her daughter, one session at the Long Island Jewish-Hillside Medical Center, as set forth in the court's order. However, she failed to attend another session because she refused to take her daughter out of school to attend the session. No evidence was offered by either party as to the needs of the child or recommendations by the Long Island Jewish-Hillside Medical Center, to accomplish an orderly method of visitation.
In response to questions put to her by the court appointed law guardian, Nicholas O'Shea, the mother stated the following: (a) she did anticipate that the child would refuse to visit with the father, (b) she does not think it is a healthy attitude for the child to hate anybody, (c) she has taken no steps by way of therapy or any other assistance to cure this attitude or change the child's mind, (d) she further admits that she alone can do nothing to change the child's attitude, and (e) she admits that she would like the father to leave her daughter alone so that the child can get on with her life.
The respondent's attorney contends that the herein proceedings were improper because of lack of sufficient notice and because of a lack of knowledge of what the respondent was to defend against at the trial. He further argued that if the court did find in favor of the petitioner father, its powers were limited to the provisions of section 548 of the Family Court Act.
The respondent seeks a dismissal of the violation petition for the above reasons and because no proof has been offered during the trial to prove that the mother did anything to prevent the child from visiting with the father. The attorney argues that the child's feeling towards the father existed prior to the court's visitation order and therefore unless proof is offered by the petitioner to show an act by the mother preventing visitation, the violation petition must be dismissed.
The petitioner contends that the mother willfully violated the order of the court and should, among other sanctions, be fined and sentenced to jail.
The Family Court Act is silent as to the specific procedure to be followed in processing a violation petition. Section 165 of the Family Court Act does provide that in any proceedings not prescribed in the Act "the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved." Furthermore, section 156 of the Family Court Act provides that the provisions of the judiciary law relating to civil and criminal contempts shall apply in considering a violation of an order of the family court. Article 19 of the Judiciary Law gives the court discretionary authority to determine how a contempt proceeding may be initiated. Section 651(b) of the Family Court Act provides that custody proceedings in the family court may be brought by habeas corpus, order to show cause or by petition.
In the Matter of Schwartz v. Schwartz, 23 A.D.2d 204, 259 N.Y.S.2d 751, the court said that the use of the CPLR is to be used as a working tool and not as an impediment to the functioning of the family court." (See Matter of Schleimer v. Swann, 93 Misc.2d 520, 402 N.Y.S.2d 897.)
The court is in total agreement with ruling in the Matter of Schwartz v. Schwartz (supra). The unique function of the family court makes such a ruling necessary and finds further that the ruling should apply equally to the use of the judiciary law in setting forth proper procedures in the family court. The procedures should, as consistently as possible, conform to the spirit of the CPLR and the judiciary law without complexities and strict requirement of those laws, especially when the moving papers are prepared by the Intake Division of the Probation Department, an arm of the family court.
The court finds that the present matter before the court was brought in the form of a petition for violation of an order made by the Family Court. The petition bears the signature of the herein petitioner and is properly verified. The petition sets forth the alleged violation committed by the herein respondent and further indicates the order alleged to have been violated. When the matter appeared in court, the respondent was advised by the court, over the strong objections of her attorney, what some of the consequences might be if the court, after a hearing, found that she did violate the order of the court.
For the reasons stated above, the court finds that the procedures followed in these proceedings were proper and the respondent's objections have no merit.
Section 511 of the FCA provides that a court, after it makes a finding of paternity, shall consider support, and custody or visitation. The right to order custody or visitation is further set forth in section 549 of the FCA.
The respondent argues that the family court is a court of limited jurisdiction and therefore its powers to enforce is limited to section 548 of the FCA. That sec...
To continue reading
Request your trial
-
Peralta v. Irrizary
...of this Court dated August 10, 2010 ( see generally Matter of Alyssa L.D., 56 A.D.3d 1184, 1185, 867 N.Y.S.2d 632; Joye v. Schechter, 118 Misc.2d 403, 410–411, 460 N.Y.S.2d 992). The record establishes, prima facie, that the parents, in willful violation of prior [938 N.Y.S.2d 117] court or......
-
Erb v. Kuwik
...Court ..." Under section 5104 of the CPLR, an order of this court is enforceable by contempt. The court in Joye v. Schechter, 118 Misc.2d 403, 460 N.Y.S.2d 992 (Fam.Ct.1983) lists a host of remedies available to a family court judge to enforce a prior custody or visitation order of the Notw......
-
Spenser v. Spenser
...946, 478 N.Y.S.2d 762 (Sup.Ct., N.Y.County, 1984) ]. He has an affirmative duty to insure that visitation occurs [Joye v. Schechter, 118 Misc.2d 403, 460 N.Y.S.2d 992 (Family Ct., Nassau County, 1983) ]. Here he has proved that he could effect visitation if he wanted it to occur which leads......
-
People v. Lawler
...Berkman v. Berkman, 57 A.D.2d 542, 393 N.Y.S.2d 60; Matter of Marciano v. Marciano, 56 A.D.2d 735, 392 N.Y.S.2d 747; Joye v. Schechter, 118 Misc.2d 403, 460 N.Y.S.2d 992). A party dissatisfied with the manner in which the Court enforces its own order of visitation may pursue an The range of......