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Thursday, March 1, 2012

New Judge Sets March Trial Date for Protracted Custody Dispute

New Judge Sets March Trial Date for Protracted Custody Dispute
The New York Law Journal by John Caher  -  March 1, 2012

More than four years after the contentious custody trial in McAvoy v. Hannigan began, the latest judge assigned to the case has vacated all orders of his predecessors and set a trial date of March 27.  Supreme Court Justice Rudolph E. Greco Jr. of Queens said that once the case that has already been before two judges in different counties gets under way, it will continue "for as many consecutive days thereafter as necessary to conclude."  However, the trial should be short, as Justice Greco has barred the testimony of anyone other than that of a court-appointed forensic psychologist and limited two attorneys to two hours each of summations, plus one hour for the attorney for the child.  Annemarie McAvoy, the mother of the 10-year-old Chad, said she has been precluded from offering any witnesses and her ex-husband, John Hannigan, whose case was largely presented before different judges and is on the record, was barred from offering additional witnesses.  "I have not put anything on in my case yet," said Ms. McAvoy, who is pro se. "The judge ruled that I am completely precluded from putting on any witnesses at all."  Ms. McAvoy has always maintained that her son is autistic or borderline autistic and needs special services. Mr. Hannigan and various experts dispute that diagnosis.  The father's attorney, Audrey M. Sager of Sager & Gellerman in Forest Hills, said her client would have liked an opportunity to testify.  "My client wants this done and done correctly," she said. "Had this case not been summarily, and without basis, transferred, it would be ready for adjudication. But that is not what happened."  Chad initially lived with his mother, an adjunct professor at Fordham University School of Law and media legal commentator.  Ms. McAvoy had residential custody, but 4½ years ago Supreme Court Justice Sidney Strauss in Queens  ordered a "temporary" change of custody and placed the boy with his father in New Jersey. The parties have been battling over custody ever since, and in recent months the case has been bounced from court to court.

Late last year, without explanation and without a motion or formal request from any of the parties, the Office of Court Administration took the case away from Justice Strauss and gave it to Justice Jeffrey S. Sunshine in Brooklyn.  Later, OCA said it wanted a "fresh set of eyes" to look at the case, but its unusual action raised questions in the matrimonial bar and among judges as to whether court administrators had the authority to move a case to another county on their own initiative.  Retired Supreme Court Justice Jacqueline W. Silbermann, who served as statewide administrative judge for matrimonial matters and now practices matrimonial law with Blank Rome in Manhattan, said judges were upset when OCA took the case away from Justice Strauss.  However, Ms. Silbermann said that while such actions should not be done routinely, it may have been warranted in the McAvoy case over concerns that Chad was suicidal.  "The judges were upset, I know that," Ms. Silbermann said. "They don't like it and I don't blame them for not liking it. It shouldn't be a practice, but I don't think it is a practice. I think it was sui generis. I don't think they've done it in the past. I don't think they'll do it very quickly in the future."

In January, Justice Sunshine held an imminent risk hearing to determine if Chad, who had suggested he would kill himself if he had to continue living with his father, was in danger. Justice Sunshine concluded that the boy's safety was not in jeopardy and left Chad in the temporary custody of his father in New Jersey.  OCA then transferred the case back to Queens and Justice Strauss. But Justice Strauss immediately stepped aside, saying his calendar is booked and he does not have time for McAvoy v. Hannigan, 9927-02.  The case was then shifted to Justice Greco, who on Feb. 10 vacated all orders of Justice Strauss and Justice Sunshine, in courts of coordinate jurisdiction, and said it is time to put this matter to rest.  "Like all the wars fought in God's name, this matter drags on for a misinterpreted goal: 'the good of the child,'" Justice Greco wrote in an order. "There is no place in child custody for pyrrhic victories. In their zeal to prevail the combatants have disregarded the terrible toll their child is paying. This must stop."  After the Feb. 10 hearing, Justice Greco set a trial date of March 5 and directed Ms. Sager to get an adjournment on another trial she had scheduled the same day before Justice Pam Jackman-Brown in Queens (See Profile).  "This takes priority. This is my priority, now, right now," Justice Greco said, according to the transcript.  However, on Feb. 28, after barring any additional witness testimony, Justice Greco delayed the matter until March 27 to give the forensic psychologist time to re-interview the child and parents, Ms. McAvoy said.  "They took my child without a hearing and then have a hearing where they allow my ex to put on his case for more than four years and then, now when we reach the point where I should be able to put on my case, they say, 'We don't need it,'" Ms. McAvoy said. "I can't even testify. You really wonder how this can happen in America."  Ms. Sager said Mr. Hannigan, who has recently been hospitalized for a methicillin-resistant staph infection (MRSA), just wants the case to come to an end.  "I believe the judge is doing what he feels is in the best interest of the child, and the best thing he can do for the child is to get it over with quickly," Ms. Sager said. "We need to get this over so my client and the child get some rest from this litigation."  John Caher can be contacted at jcaher@alm.com.


CLICK HERE TO SEE BACKGROUND STORY: Doing What They Do Best, Court System Operates From the Shadows  -  4-Year-Old Queens Custody Case Shifter to Brooklyn

21 comments:

Anonymous said...

I've been following this case. It's disgraceful how it has been handled. A bunch of court people need to pay.

Same Ole Same Ole said...

So the best thing for truth-seeking is to get a one-side trial over quickly?

Where have heard this before??

Oh yeah, in the book that passes for righteous standard lingo...

PromisesMadePromisesBroken said...

Omg. Retired Supreme Court Justice Jacqueline W. Silberman weighed in?

He promised that he would look into my case..

In mine, the court was in want of Subject Matter Jurisdiction and had a Judge who voluntarily withdrew ie recused himself for reasons of bias and prejudice.

How far could he have looked??

Anonymous said...

Matter of Davies v. Davies

As to the child Todd, we find Family Court to have committed error. According to the petition, the last order of custody was entered on November 18, 1992. The current petition clearly set forth specific allegations establishing a prima facie showing of a change in circumstances and how the best interest of Todd would be served by the relief requested.[2] While generally an evidentiary hearing would be necessary concerning a modification of a prior custody determination (see, Matter of Oliver S. v Chemung County Dept. of Social Servs., 162 AD2d 820, 821; Matter of Greenblatt v Van Deusen, 87 AD2d 713, 714), no hearing is required when "the information before the court enables it to undertake a comprehensive independent review of the child's best interest" (Matter of Oliver S. v Chemung County Dept. of Social Servs., supra, at 821-822; 887*887see, Matter of Goldman v Goldman, 201 AD2d 860, 861, 862). Upon the record before us, we find that there was insufficient information before Family Court to enable it "to undertake a comprehensive independent review" (Matter of Oliver S. v Chemung County Dept. of Social Servs., supra, at 822). Accordingly, Family Court committed error by not holding a hearing on that petition.

InSearchofaStandard said...

MATTER OF GREENBLATT v. DEUSEN

This is particularly so in light of the recent holding in which the Court of Appeals relaxed the requirement of pleading and proof of extraordinary circumstances in change of custody cases (Friederwitzer v Friederwitzer, 55 N.Y.2d 89).

TheStandard said...

(Friederwitzer v Friederwitzer, 55 N.Y.2d 89

The Appellate Division by a divided court modified in a respect not material to our determination and affirmed Special Term's order. The majority found the Trial Judge's conclusion that custody in defendant would serve the best interests of the children to be supported by the evidence. The dissenter, interpreting our decisions in Corradino v Corradino (48 N.Y.2d 894) and Matter of Nehra v Uhlar (43 N.Y.2d 242) as holding that custody "pursuant to an agreement should not be transferred absent extraordinary circumstances" (81 AD2d, p 606) of which he found no evidence in the record, voted to reverse and deny the father's motion. The mother's appeal to us presents the question of law whether extraordinary circumstances are required as the dissent suggested. We affirm.

The only absolute in the law governing custody of children is that there are no absolutes. The Legislature has so declared in directing that custody be determined by the circumstances of the case and of the parties and the best interests of the child, but then adding "In all cases there shall be no prima facie right to the custody of the child in either parent" (Domestic Relations Law, § 240; see, also, § 70). Because the section speaks to modification as well as to an original matrimonial judgment, "all cases" must be read as including both. That, of course, does not mean that custody may be changed without regard to the circumstances considered by the court when the earlier award was made but rather that no one factor, including the 94*94 existence of the earlier decree or agreement, is determinative of whether there should, in the exercise of sound judicial discretion, be a change in custody.

Indeed, in Matter of Nehra v Uhlar (43 N.Y.2d 242, supra), we were at pains to point out many of the factors to be considered and the order of their priority. Thus, we noted that "Paramount in child custody cases, of course, is the ultimate best interest of the child" (p 248), that stability is important but the disruption of change is not necessarily determinative (pp 248, 250), that the desires of the child are to be considered, but can be manipulated and may not be in the child's best interests (p 249), that self-help through abduction by the noncustodial parent must be deterred but even that "must, when necessary, be submerged to the paramount concern in all custody matters: the best interest of the child" (p 250), that the relative fitness of the respective parents as well as length of time the present custody had continued are also to be considered (pp 250-251), that "Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" (p 251), whereas of lesser priority will be the abduction, elopement or other defiance of legal process as well as the preferences of the child (id.).

TheStandard said...

The priority which is accorded the first award of custody, whether contained in court order or voluntary agreement, results not from the policy considerations involved in res judicata (which permits change in custody decrees when warranted by the circumstances, Kunker v Kunker, 230 App Div 641, 645; cf. Matter of Bachman v Mejias, 1 N.Y.2d 575, 581; Goldman v Goldman, 282 N.Y. 296, 304; see Restatement, Judgments 2d [Tent Draft No. 3], § 74, Comment d; and [Tent Draft No. 5], § 61, Comment f, illustration 11), so much as from the conceptions that stability in a child's life is in the child's best interests and that the prior determination reflects a considered and experienced judgment concerning all of the factors involved (Martin v Martin, 74 AD2d 419, 427). But the weight to be given the prior award necessarily depends upon whether it results from the Trial Judge's judgment after consideration of all 95*95 relevant evidence introduced during a plenary trial or, as here, finds its way into the judgment through agreement of the parties proven as part of a proceeding in which custody was not contested and no evidence contradictory of the agreement's custody provision has been presented. No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child's best interest (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 N.Y.2d 660). Nor is an agreement so contradictory of considered judgment as to determine custody solely upon the basis of the wishes of the young children involved a "`weighty factor'" for consideration (Martin v Martin, 74 AD2d 419, 426, supra). Thus, Nehra's phrase "absence of extraordinary circumstances" is to be read as "absence of countervailing circumstances on consideration of the totality of circumstances," not that some particular, sudden or unusual event has occurred since the prior award. The standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered, not whether there exists one or more circumstances that can be denominated extraordinary.

An additional reason for so holding in the instant case exists in rule 699.9 of the Appellate Division, Second Department, to which the decree in the instant case is subject. Custody decrees remain subject to modification because the governing statute so provides (Goldman v Goldman, 282 N.Y. 296, 304, supra; Domestic Relations Law, § 240; Siegel, 1964 Practice Commentary, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law, § 240, 1981-1982 Pocket Part, p 165; Ann., 73 ALR2d 1444). Rule 699.9 expressly states that "as to support, custody and visitation, no such [separation] agreement or stipulation is binding" (22 NYCRR 699.9 [f] [4]) and requires, as earlier noted, that the judgment contain the provision (id., Approved Forms, J13) that the court retains jurisdiction for the purpose of making such further custody decree "as it finds appropriate under the circumstances existing at the time application for that purpose is made to it" (italics supplied). Such a modification is, as already noted, permitted by law when authorized by the totality of 96*96 circumstances, including the existence of the prior decree. Moreover, the language of the rule makes indelibly clear that it is the circumstances existing at the time of the application for change that governs whether a change should be made, whether or not any of them can be characterized as extraordinary. This, of course, does not mean that a matrimonial court in the Second Department has the authority to change custody simply because change is requested, but that it has the discretion to do so when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.

It thus appears that the standard applied by the courts below was not legally incorrect.

jeesh. said...

All that above.. and this was all you got??

*******************

The Supreme Court possessed adequate relevant information so as to enable it to
make an informed and provident temporary custody determination (see Matter of Levande v Levande,
10 AD3d 723, 723). The evidence before the Supreme Court was sufficient to enable it, even without
a hearing, to reach a sound conclusion that, under the circumstances of this case, it was in the child’s
best interest to award temporary residential custody to the father until such time as a hearing could
be conducted on the issue of permanent custody (see Matter of Levande v Levande, supra at 724;

WithoutHearingorEvidence? said...

In a matrimonial action in which the parties were divorced by judgment entered
August 3, 2005, the mother appeals, as limited by her brief, from stated portions of an order of the
Supreme Court, Queens County (Strauss, J.), dated February 23, 2007, which, without a hearing,
inter alia, granted the father’s cross motion for sole custody of the parties’ son to the extent of
temporarily changing the residential custody of the parties’ son from the mother to the father subject
to further order of the court.

COA said...

Why do we bother having a Court of Appeals?

The Clerks who make orders do a much better job, eh?

Anonymous said...

I hope that there are enough people to go to be court watchers and that the press is there to see how this case is handled.

Anonymous said...

NY NOW is opposing joint custody as preferred or even an option in the NY Legislature. The bar must be grateful to NY NOW that our present totally disfunctioanl system continues as it assures extensive litigation. Every woman's lawyer knows all that you have to do to insure much litigation is to promise the woman either much child support or that the court will declare you the perfect parent and him a scoundrel and you can feel good about yourself. And if the man is smart enough to know the system is corrupt, he pays a high fee to get a lawyer crony of the judge and get sole custody. The evil is the system and its corrupt judges and lawyers. NY NOW is the enabler of corruption and an enemy of the children.

Justify said...

Is it Smart or Corrupt?

Isn't it easier to be your so-called "smart" when the crony judge helps to starve one while making sure that the other can easily afford litigate?

Conscience vs. Conscious said...

You do realize, that to get crony favors..

One has to be willing to hurt their family and violate the spirit of the law..?

Keep making it an us vs. them..

Instead of calling it what it is..

CORRUPTION!..

on so many levels!!

POOF!! said...

Big Smart Favor, eh?

You've gained the world.. and lost your soul!!

TheRainisGone said...

Hey wait..

This dude pulled a chrony favor, which violated the spirit of the law, for religious reasons??

How does ONE do that??

Maybe he doesn't epitomize moral virtue after-all.

Anonymous said...

Didn't the judge who changed custody, call a rabbi and then make the change based on the rabbi's advice?

Besides being wrong, wasn't that some kind of ex parte thing?

????? said...

Was the call an ex parte hearing?

with transcribed advice?

"3. To compel respondent to file in this Court a transcript of the exparte hearing in which ****** testified .

Anonymous said...

does any one know the output of this case? What did Judge Greco order?

Thanks.

James said...
This comment has been removed by the author.
Anonymous said...

case decided!
http://www.nycourts.gov/reporter/3dseries/2013/2013_04785.htm

father won the custody.

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