16 Mothers absconds with child with impunity – father gives notice and goes to jail.
The following are part of two appellate court cases that demonstrate how the court treats fathers and mothers who leave the state with the children. Both rulings are from the Appellate Court 3rd Department. You can google the full appellate court rulings.
In the first case Swain v. Vogt 206 A.D.2d 703 (3rd Dept., 1994), you have no idea of what the real facts are behind the ruling until you read the dissenting opinion. The dissenting judge was very clear as to the facts of the case. The facts stated by the dissenting judge:
To concur in the majority decision would condone this custodial parent’s willful violation of a court order when she fled the jurisdiction of this State, absconded with the child, and thereafter manipulated court process to suit her own needs. Her conduct was particularly egregious since a permanent order of protection had been issued as well as an order which provided her the unfettered opportunity to apply for a modification of visitation. Before leaving the State, she failed to petition to enforce or modify either order.
It is undisputed that by stipulation and order entered August 14, 1990, it was determined, inter alia, that custody of the infant child was granted to respondent, visitation was granted to petitioner and respondent was ordered not to relocate without petitioner’s express permission or further court order.
Notwithstanding such order, on or about May 10, 1991, respondent fled this jurisdiction with the child and relocated to Maine without first securing petitioner’s permission or a modification of the court order. It is further undisputed that within days of respondent’s departure from the State, petitioner filed petitions with Family Court charging a violation of the court’s order and seeking custody of the child. It is also undisputed that petitioner attempted to personally serve respondent with process outside of the State but was unable to do so since respondent secreted herself and the child. When all attempts at service proved to be futile, petitioner filed and then was forced to refile his petitions. When process was again unsuccessful, Family Court finally ordered, inter alia, that respondent be personally served and that her failure to appear at the scheduled hearing would result in a transfer of custody to petitioner and the issuance of a warrant for her arrest. Respondent nevertheless failed to appear and simply answered and cross-petitioned for custody.
The respondent then filed for custody in Maine. The appellate court ruled:
Under these circumstances, we are of the opinion that there is substantial evidence that Brandon’s “present [and] future care, protection, training, and personal relationships [are] more readily available [in Maine]” (Citations omitted), and that Maine has a closer connection with Brandon (Citation omitted). Consequently, we conclude that Brandon’s best interest will be served if Maine assumes jurisdiction and renders a determination with respect to custody (Citation omitted).
What was the closer connection with Maine? The child was born in 1989 and this is 1994. The child is 5. Mother’s know that all they have to do is stall and the court will protect them. They know the court will not do anything to them for violating a court order of visitation. It is only the father’s that the court will go after. This ruling tells mothers, abscond with the child and we will protect you. The family court hands out orders of protect against fathers as routine and will keep postponing the proceeding until the father agrees to the order of protection.
Judges Crew, Mikoll, Mercure and Yesawich with Peters dissenting.
The mother violates the court order by moving and nothing is done and there is no evidence that Brandon’s best interest would be in Maine as there would have been NO trial as the argument was over jurisdiction. The mother hid the child from the father. It is in the mother’s best interest that the matter be heard in Maine. The father will now have to go to Maine to fight for his child, lose time at work, pay thousands for a new attorney and have to travel to see his child, if he is able to because the mother violated the court order. Why wasn’t the mother charged with custodial interference? Violating the court order?
Court sentences father to jail for custodial interference
What happens when a father moves out of state with the children? He went to jail for six months even though the mother waits 15 months to file a petition and the court gives the mother custody of the children and there was NO court order preventing him from moving.
Glenn v. Glenn, 262 A.D.2d 885 (3rd Dept. 1999)
In that order, Family Court recited that it felt “bound” to grant custody to respondent (father).
Two months later, without notifying petitioner, respondent relocated to South Carolina with the children. Respondent thereafter supplied petitioner with their address and telephone number, and she had telephone and written communication with the children until September 1997, when contact ceased.
In December 1997, petitioner filed a petition alleging that respondent violated the custody order by denying her visitation and telephone contact with the children. She also petitioned to modify custody. Following a trial, Family Court found respondent in “offensive violation” of the visitation order and sentenced him to six months in jail. In view of respondent’s imminent incarceration, the court granted petitioner’s modification petition and transferred custody to her.
The custody order did NOT prohibit respondent from removing the children from the State, petitioner had acquiesced in the children’s removal by failing to commence any violation proceeding for 15 months and petitioner could have visited the children in South Carolina.
Moreover, willful interference with a noncustodial parent’s visitation is “so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as a custodial parent”.
Mikol, Crew, Yesawich, Peters and Carpinello. (4 of the judges are the same, in both cases the father lost, yet it was in the one case the mother violating the court order.)
Why was the father sent to jail, he did not violate the court order and the mother acquiesced in the children’s removal from New York by waiting 15 months to file? The mother above violated the court order and the father immediately filed with the court and was told to go to Maine for a court hearing. Why wasn’t there an order by the court to take custody of the child and bring him back to New York? Usually after six months being out of state, the NY family court usually declines hearing the matter as it is usually the mother that moves the children. Also, notice both rulings are derogatory of the father in order for the court to justify its ruling in both cases the favor of the mother. In my opinion, the father was put in jail so the mother could have custody of the children. Notice there is no mention of what the mother did to lose custody of the children to the father.
When is something going to be done to protect the children?
Charles E. Colllins
518-274-0380 www.justice4ny.com. Check out my other “rants” This is #16
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