Vickery v. Patch
| Decision Date | 20 April 1981 |
| Citation | 443 N.Y.S.2d 790,111 Misc.2d 248 |
| Parties | Olga VICKERY, Petitioner, v. Richard PATCH, Respondent. |
| Court | New York Family Court |
This proceeding was commenced in Erie County Family Court, pursuant to the New York State Domestic Relations Law, Article 3-A, USDL, upon a petition instituted in Fairfax County, in the Commonwealth of Virginia. The relief sought is support for the Petitioner and the two infant children of the parties, Jose Luis Patch, dob 1/11/66 and Maria Alexandria Patch, dob 4/11/67.
The facts, as alleged by the Respondent, together with those which are apparent from a previous petition filed in this Court, appear not to be in dispute. The parties were divorced in the State of Wisconsin in 1970, with that decree granting custody of the two children to the Petitioner, together with an order of support. Thereafter, unfortunately, the children were shuffled between the parties a number of times. However, by an agreement in April, 1977, later incorporated into an amended order, in the State of Wisconsin, the Respondent obtained custody of the two children. Apparently, they remained with the Respondent until the summer of 1979 when the Petitioner retained the children after the end of her summer visitation. The Respondent has been seeking return of the children since then. A previous order of the Erie County Family Court, entered June 1980 by Judge Honan, denied Respondent an order of custody in New York. In declining to grant such order, Judge Honan held that the Wisconsin order remained valid and enforceable under the Uniform Child Custody Jurisdiction Act, New York State DRL Article 5-A, and that an additional order from New York was unnecessary. This Court is bound by the law of the case.
The issue to be decided by this Court is a narrow one. It is whether this Court is bound under the Uniform Support of Dependents Law to order Respondent to support children wrongfully retained by the Petitioner, and for whom Respondent has a valid order of custody under the Wisconsin court order. Clearly, this Court must decline to order such support.
Counsel for both parties agree that the law of New York permits cancellation of arrears of both alimony and child support for unreasonable interference with visitation rights, citing Borax v. Borax, 4 N.Y.2d 113, 172 N.Y.S.2d 805, 149 N.E.2d 326; Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420; Cohen v. Cohen, 56 A.D.2d 784, 392 N.Y.S.2d 459.
However, counsel for Petitioner argues that notwithstanding Petitioner's admittedly unlawful retention of the children, the Respondent is nonetheless responsible for future child support, though the Court may impose conditions in so ordering.
Certainly there may be instances where the Court of the responding state might fashion such an order, particularly where the Petitioner was a public agency (DRL § 36). However, the Court must be mindful, as well, of the public policy of this state, both in enforcing foreign decrees and in entertaining USDL actions such as this.
Custody is not at issue in this proceeding, as this Court is bound by the previous determination that the Wisconsin decree is still valid and enforceable. However, in analyzing New York's public policy concerns, the views of this state on "child snatching" must be enforced.
While full faith and credit is not always afforded custody decrees of other states, comity has always been recognized as New York's policy absent "exceptional circumstances." Speaking on the issue of self-help in defiance of another state's custody order, Judge Breitel in Application of Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, (aff'd) 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861, illustrated the court's concern for such action:
Again in Bennett v. Jeffreys, 40 N.Y.2d 543, 550, 387 N.Y.S.2d 821, 827, 356 N.E.2d 277, 284, then Chief Judge Breitel reiterated the policy, particularly applicable in the present case:
...
To continue reading
Request your trial