People ex rel. Moffett v. Cooper

• Decision Date: 11 September 1970
• Citation: 314 N.Y.S.2d 248,63 Misc.2d 1005
• Parties: The PEOPLE of the State of New York ex rel. John O. MOFFETT, Petitioner, v. Charles C. COOPER, Respondent.
• Court: New York Supreme Court

Page 248

314 N.Y.S.2d 248

63 Misc.2d 1005

The PEOPLE of the State of New York ex rel. John O. MOFFETT Petitioner, v. Charles C. COOPER, Respondent.

Supreme Court, Dutchess County.

Sept. 11, 1970.

Guernsey, Butts & Walsh, Poughkeepsie, with Robert L. Ostertag, Poughkeepsie, of counsel, for petitioner.

Robert F. Winne, Rhinebeck, for respondent.

Leonard Klein, Poughkeepsie, for children.

George G. Bernhard, Pawling, Law Guardian.

RAYMOND E. ALDRICH, JR., Acting Judge of the Family Court.

A Habeas Corpus proceeding was brought in the Supreme Court by John O. Moffett against Charles C. Cooper for the sole and complete custody of two children, John David Moffett and Robin Lee Moffett, twins, born April 19, 1954. The Return to the Writ made certain admissions and denials, and affirmatively invocated the equitable jurisdiction of the Supreme Court in determining the issue of custody. Thereafter the children by their own affidavit requested that the relief sought by the Writ be denied and that their affidavit be considered by such court as their Petition in Equity for a determination as to their present and future custody. Upon the return of the Writ, the Supreme Court referred the proceedings, with approval of all parties, to the Family Court, Dutchess County, for further disposition.

The constitutional and legislative grants of jurisdiction to Family Court for resolution of the custody proceedings now under consideration are found in sections 13 and 19 of Article VI of the New York State Constitution and in section 651 of Article 6 of the Family Court Act.

Upon the adoption of Article VI, section 13, subsection b, the Family Court was conferred with jurisdiction over certain enumerated classes of proceedings to be originated in such Family Court in the manner provided by law, more particularly: '* * *; (2) the custody of minors except for custody incidental to actions and proceedings for marital separation, divorce, annulment of marriage and dissolution of marriage or except for custody in habeas corpus proceedings', and by subsection c of the same Article with jurisdiction 'to determine, with the same powers possessed by the supreme court, the following matters when referred to the family court from the supreme court: habeas corpus proceedings for the determination of the custody of minors.'

This Court holds that the foregoing quoted provisions of subsection b conferred upon Family Court as a court of original jurisdiction all proceedings for custody of minors, except those specifically exempted by enumeration in b(2), provided the same were commenced 'in the manner provided by law'. While the application in equity for the determination of custody in the proceeding to be now decided was made by the two children involved herein in the Supreme Court action, the same application might have been made to the Family Court in the first instance (Matter of Chin v. Wyman, 41 Misc.2d 641, 246 N.Y.S.2d 306) with the method of procedure being in the manner provided by law in accordance with the Civil Practice Law and Rules (Family Ct. Act, § 165).

Article VI, section 19, subsection a is constitutional authority for the Supreme Court to transfer to Family Court for disposition this proceeding brought by the children by their Petition in Equity and the relief sought by respondent in his Return to invoke the equity jurisdiction of the Supreme Court since Family Court has original 'jurisdiction of the subject matter' of proceedings for the determination of custody of minors, and this jurisdiction is concurrent with, and not within the 'exclusive jurisdiction' of the Supreme Court.

The constitutional power of Supreme Court to refer to Family Court the habeas corpus proceeding now to be decided clearly appears from a reading of the wording of the constitution and needs no further elucidation (N.Y.Const. Art. VI, § 13, sub. c).

The amendment effective September 1, 1966 of section 651 of Article 6 of the Family Court Act to provide for the transfer from Supreme Court to Family Court of 'habeas corpus proceedings and proceedings brought by petition * * *, for the determination of the custody of minors' can only be interpreted as a legislative recognition of the provisions of Article VI, section 13, subsection c, and section 19, subsection a, providing for referral and transfer of custody proceedings. The omission by the Legislature to amend at the same time section 115(b) of Article 1 of the Family Court Act to include proceedings involving custody of minors brought by petition can only be interpreted as an over-sight.

Since Family Court has jurisdiction of the subject matter of proceedings involving the custody of minors, whether brought directly to Family Court by petition (Matter of Chin v. Wyman, supra; Matter of Chin v. Yen, 41 Misc.2d 650, 246 N.Y.S.2d 316), as is done in the Supreme Court (Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624), or through transfer from or referral by the Supreme Court, and of the classes of persons named as parties in such proceedings, this Court will retain jurisdiction and decide the issue of custody of the twins.

Undisputed are the following essential facts, namely, that the petitioner John O. Moffett and Margaret Lee Moffett were married on June 3, 1953 in Mississippi; twin children, John David and Robin Lee Moffett, were born to them on April 19, 1954; the parents became separated by Louisiana decree of January 15, 1957, and thereafter were divorced by Alabama decree of January 15, 1959, with custody in both proceedings awarded to the mother, subject to visitation rights in the father; the mother remarried for the third time in February, 1959, and moved with the twins in violation of the Louisiana and Alabama decrees, and unknown to the petitioner, to Rhinebeck, New York; in the latter part of 1960 petitioner first learned of the whereabouts of his children, and secured brief visitation with them in 1961, 1962, and 1964 in New Jersey and Dutchess County; then unable to bring about visitation at his home in Louisiana during the summer, petitioner brought habeas corpus returnable November 19, 1965 in the Dutchess County Supreme Court, and the proceeding was referred to Family Court; after a contested plenary hearing, held before me, this Court on July 22, 1966 in a written decision now in evidence granted custody to the wife with visitation to the father in Louisiana each summer for three weeks, upon his posting bond of $1,500 for each child; the father exercised his summer visitation, posted the bond in cash, and the children were with him during 1966, 1967, 1968, and 1969; on June 17, 1970 the mother, who had moved to Hyde Park, died, unbeknown to petitioner, who first learned of her death when he made inquiry about that summer's visitation; shortly thereafter petitioner commenced the habeas corpus proceeding now under consideration.

The plenary hearing held by this Court was extended, and included an extensive presentation and examination of witnesses, and of exhibits, including many colored slides of the children's activities during their summer visitations in Louisiana, as well as testimony from the Court appointed psychiatrist and psychologist who had examined both parties and the children immediately prior to the hearing.

This custody proceeding is unlike the usual one, where bitter parents battle between themselves, or parent is pitted against grandparents, for the custody of children, as in this instance a natural father opposes a step-father after the death of the children's mother.

While the petitioner as father is the natural and legal guardian of these twins, the issue of custody...