Primarily servicing the greater New York City metropolitan area



LEONARD M.WEINER, ESQ, Ph.D.
DIVORCE SOLUTIONS
206 East 38th Street
New York, N.Y. 10016
(212) 370-1660

CHILD CUSTODY & CHILD SUPPORT

Question #62:
My husband is in an awful custody visitation situation. In February he received temporary custody of his son in our county Onieda county, because there was some issues at home and his son asked him to talk to mom about staying at our home. Mom is from Bronx county where the child resided at the time. When my husband tried to talk to her about the issues she said take him he is your son if he wants to live with you he can forget he has a mother and can never come back, she and her live in partner also told his son the same thing, so my husband brought him back home and filed a petition for custody stating what mother said and so he would be able to attend school. We had a court date March 21 set for custody and in between several calls from mom harassing and her family also then she changed he mind a week and a half before our court date up here and filed in supreme court habeas corpus that my husband was holding and concealing the child and refused to return him. The supreme court had my husband served for a court hearing to bring himself and return the child on March 18. The court and lawyers up here and her lawyer and the supreme court were disputing that we already had a court date here and my husband had an order of temporary custody. The judge in the supreme court in ny, ny said she didn't care and my husband was to attend her court date and to return the child he kidnapped according to her court clerk when we called. The Judge down in supreme court received all certified copies of custody order and papers from the court in our county.
They ( the court law guardian, husbands lawyer and his ex wifeís lawyer decided we could hold a court date over the phone between the two courts to come to an agreement. So March 17 they did the over the phone hearing and my husbandís lawyer and his sons law guardian told my husband his son said he changed his mind and they agreed upon him returning his son and said that he no longer needed to appear in NY, ny supreme court that since his son was returned it was settled and there was no court date. My husband was to go to our original court date in Onieda county for visitation which they could not settle on the 17th because the mother and her lawyer did not want to give my husband any visitation. when we showed up to court on the 21st my husbandís lawyer and his sons law guardian explained to the judge the circumstance and he only said he wasn't modifying original custody order to visitation, that he made the order for custody and asked for the judges number in NY,ny and reset a court date and told us we had to have her served for new court date.
When we returned home we had an order in the mail from supreme court that his son had a child advocate lawyer assigned by the judge in ny, ny in the matter of visitation and custody of his son and we were to call that lawyer when we received the order to see if he wanted to interview all or any members of the household, so confused we called. The order was dated March 16,2011 , the cover letter was dated March 18,2011 and the order at the end had for the parties and the counsel to appear in this court on March 18,2011 9:30 am and the post mark from the post office was dated March18,2011. So us being very confused we called as it said and the lawyer from the order said he had already spoke to Joshua in court on March 18,2011 that they still held the court proceeding.
We don't know what to do, we don't know if they can do that and no one seems to have any answers for us, not the courts here and the courts there said he will just have to wait to see what the papers say from there court when we receive them in the mail. Can my husband fight this since he did not get any chance to speak in court at all ,to dispute anything, say what he wanted or defend himself.

Answer:
It seems clear from the information you have provided that your Attorney should be more intensely involved in resolving this conflict regarding which court has jurisdiction over the custody of your husbandís son and who shall be the resident parent going forward. Do not allow yourselves to be subject to a default judgment by not appearing. Have your attorney resolve this jurisdiction matter and make sure he understands that is his responsibility to make sure you are not in default and that you have an opportunity to appear before whichever court is finally determined to have ultimate jurisdiction over this matter.

Leonard M. Weiner, Esq. /Divorce Solutions
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