People of State of New York ex rel. Burke v. Burke

• Citation: 262 N.Y.S.2d 613,47 Misc.2d 276
• Parties: People of the State of New York ex rel. Raymond BURKE, Petitioner, v. Joan BURKE, Respondent.
• Decision Date: 11 August 1965
• Court: New York County Court

Page 613

262 N.Y.S.2d 613

47 Misc.2d 276

People of the State of New York ex rel. Raymond BURKE, Petitioner, v. Joan BURKE, Respondent.

Allegany County Court.

Aug. 11, 1965.

Louis C. Zannieri, Hornell, for petitioner.

Henry R. Burke, Hornell, for respondent.

WILLIAM W. SERRA, Judge.

Application is made by the Petitioner herein for a Writ of Habeas Corpus, returnable in the County Court, County of Allegany. The application is for a determination of visitation rights for the Petitioner to visit his two infant children John and James Burke. The Petition alleges that the children are presently in the custody of the Respondent pursuant to the terms of a separation agreement under which custody is placed with the Respondent and visitation rights granted to the Petitioner. Said visitation rights in the Petition are defined as 'liberal visitation rights.' This is, therefore, a petition concerning custody of the children as to which jurisdiction rests at common law in the Supreme Court of the State of New York, as per parens patria. (Application of Chapin, 1942, 264 App.Div. 172, 35 N.Y.S.2d 302, Ex Parte Rich, 1938, 254 App.Div. 6, 3 N.Y.S.2d 689). Jurisdiction in this Court for the Petition of Writ of Habeas Corpus must, therefore, be found specifically in statute to entitle Petitioner to the issuance of the writ.

It is contended by the Petitioner that the provision of Article 70 of the Civil Practice Act provides such jurisdiction. This Court finds otherwise. The substantive jurisdiction provided in Article 70 is defined in Section 7002(a) CPLR, and is in respect to the unlawful imprisonment or restraint of persons found in the State of New York. The question of jurisdiction of the issue of custody of children, including the division of custody, '* * * under such regulations and restrictions, and with such provisions and directions, as the case may require * * *' as provided in Section 70 of the Domestic Relations Law is particularly therein specified to be within the exclusive jurisdiction of the Supreme Court of the State of New York. The law is well settled that this jurisdiction is exclusive and does not vest in the County Court. People ex rel. Rhoades v. Humphreys, 1857, 24 Barb. 521. See, also, People ex rel. Parr v. Parr, 1888, 49 Hun 473, 2 N.Y.S. 263, affirmed 121 N.Y 679, 24 N.E. 481; People ex rel. Williams v. Corey, 1887, 46 Hun 408, 12 N.Y.St.R. 411; People ex rel. Hoyle v. Osborne, 1884, 6 Civ.Proc.R. 299; People ex rel. Ward v. Ward, 1879, 59 How.Prac. 174. As stated by Timone, J., in Matter of Raffone v. Raffone, 1959, 20 Misc.2d 733, 735, 193 N.Y.S.2d 206: 'The general jurisdiction to determine which parent shall have custody of a child, either as an incident to a matrimonial action (Civ.Prac.Act, §§ 1170, 1170-a), or in a habeas corpus proceeding (Domestic Relations Law, § 70; Civil Practice Act, art. 77), is vested exclusively in the Supreme Court.'

It is further contended by the Petitioner that the County Judge has authority to act in Supreme Court matters under Section 2212(c) CPLR. This section, however, does not apply in this case, since the Appellate Division of the Fourth Judicial Department of the State of New York has not authorized the County Judge to assume jurisdiction in Supreme Court matters which are contested...