Matter of H.P. v. B.P. 1/22/2008 NYLJ 19, (col. 3)

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1 CHAPTER 2 WORKING IN FAMILY LAW Decision of Interest Although the decision below concerns a family offense case and thus could have been included in the updates for Chapter 11, we have placed it here because of its useful discussion of venue. It would make an excellent briefing assignment to accompany Chapter 2. Judge John G. Marks Matter of H.P. v. B.P. 1/22/2008 NYLJ 19, (col. 3) H.P. (hereinafter petitioner) filed an immediate family offense proceeding, on behalf of herself and the parties' three children, O.P., E.P. and Z.P., pursuant to Article 8 of the Family Court Act, against B.P. (hereinafter respondent). On September 25, 2007, based upon the allegations in said petition, an ex parte, a Temporary Order of Protection (TOP) was issued by Judge Philip M. Grella. The TOP ordered the respondent, in pertinent part, to stay away from the petitioner and the parties' three children, wherever they may be and granted temporary sole custody of the children to the petitioner. The petition and TOP were personally served on the respondent on September 27, The respondent, by answer dated October 17, 2007, denied the allegations contained in the petition and asserted two affirmative defenses, both alleging that the proper jurisdiction and venue for this proceeding is properly in the County of Queens and not Nassau County. A Demand For Change Of Place Of Trial was also filed. On October 18, 2007, the parties appeared before this Court. The petitioner was represented by Saltzman Chetkof & Rosenberg, LLP. The respondent was represented by Ganfer & Shore, LLP. Robin Kent, Esq., was assigned as Law Guardian for the children. At that appearance, the prior TOP was vacated. On consent, a new TOP was issued by Judge John G. Marks, with essentially the same provisions as the original TOP except that it permitted the respondent to have supervised visitation with the children at EACH or Visitation Alternatives for up to two hours per week. The respondent, by Notice of Motion to Change Venue -- Place of Trial dated October 26, 2007, moves this Court, pursuant to Articles 6 and 8 of the Family Court Act (FCA) 174, 818 and 165, and CPLR 503(a), for an Order changing the venue of this proceeding, to the Queens County Family Court and to consolidate it with the Custody proceedings commenced there under Docket Nos. xxx

2 The respondent contends this proceeding was improperly commenced in Nassau County as the proper venue for it is Queens County because that is where he and the petitioner resided since they were married in September 1999, and where the children have lived since their birth until on or about September 20, 2007, when the petitioner unilaterally and without cause, justification or his consent removed the children from the family home in Queens and moved initially to Brooklyn and then to Nassau County. The respondent asserts that he then immediately commenced custody proceedings in Queens County Family Court on September 24, 2007, under the docket numbers supra, and that Referee Francine Seiden, issued an ex parte Order, which ordered the children, E., Z. and O. P., not be removed from the court's jurisdiction. [FN1] The respondent further contends that Queens County is the proper venue for this proceeding since he commenced the custody proceedings in that County first and that this proceeding should therefore be consolidated with those proceedings. The respondent also asserts that Nassau County is an improper venue since the petitioner was not a resident of Nassau County nor did she meet any of the venue criteria set forth in FCA 818 at the time this proceeding was commenced since her stay in her sister's home must be viewed as temporary. The petitioner opposes the motion and argues that Nassau County is the proper venue as she was residing in Nassau County when she commenced this proceeding. She further asserts that due to her fear of the respondent she fled the marital home, with the children, on September 21, 2007, for her safety and the safety of the children. She initially went to her brother's home in Brooklyn due to its proximity to the marital residence; however, still fearing for her and the children's safety she left her brother's home with the children and relocated to her sister's home in Oceanside, Nassau County, New York. She further asserts that since relocating in Oceanside the children have been enrolled in kindergarten in the Oceanside School District. Additionally, the petitioner commenced an Action For Divorce in Nassau County Supreme Court on October 1, The Law Guardian also opposes the respondent's motion arguing adopting some of the petitioner's arguments, in addition to the fact that, upon information and belief, there are two ongoing investigations involving the children being conducted by Nassau County CPS, based upon information provided by the children. The Law Guardian asserts that the children are being monitored and counseled by mental health professionals in Nassau County. Additionally, she asserts that it would be inconvenient for potential witnesses from petitioner's family as well as from the Oceanside School District. The Law Guardian also believes that it would be unnecessarily disturbing to the children for them to have to be interviewed and questioned by a new Law Guardian if this action was transferred to Queens County. The Law Guardian further argues that FCA 818 specifically provides for venue in a County where a person who is the subject of a Family Offense is being sheltered on a

3 temporary or emergency basis such as the petitioner and the children who are currently residing with the petitioner's sister who is providing housing and emergency shelter to them. It is well settled that 'the residence of a party for purposes of establishing venue must be determined as of the time of the commencement of the action ' (Mandelbaum v. Mandelbaum, 151 AD2d 727, 728 [2nd Dept 1989]). Proof of residence acquired after the commencement of the action is irrelevant to a determination of venue and although it is not necessary to show intent to make a place a permanent home to establish residency, mere physical presence is not necessarily sufficient to establish residency for purposes of venue (id.). But, a party may maintain more than one residence which could be used for venue purposes. See, CPLR 503(a) which provides that 'A party resident in more than one county shall be deemed a resident of each such county.' Family Court Act Article 8, residence for the purpose establishing venue, is more liberally construed. Similarly, regarding Venue, FCA 818 provides: Proceedings under this article may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides. For the purposes of this section, residence shall include any residential program for victims of domestic violence,... or facility which provides shelter to homeless persons or families on an emergency or temporary basis. Accordingly, FCA 818 clearly provides for venue in Nassau County since the petitioner resided there upon commencing this action, even if the petitioner acknowledged to be staying on a temporary basis. As an aside, since the petitioner alleges that she fled the marital residence in Queens County due to abuse, and even though her current residence does not meet the criteria of a 'residential program for victims of domestic violence' as set forth in Social Services Law 459(a)(4), this Court would follow the reasoning in Dobbs v. Dobbs, 186 AD2d 455 [1st Dept 1992] which considered claims of abuse and need to flee the marital home as a proper basis to determine venue appropriate in Nassau County. Here, based upon the claims in the petition and the petitioner's sworn affidavits, without determining the merits of the petition, Nassau County is a proper venue for this proceeding, pursuant to FCA 818. At a minimum, Nassau County is where the petitioner was residing/staying with her children when this proceeding was commenced. FCA 174 in relevant part reads: 'The family court in a county may

4 (emphasis supplied) for good cause shown transfer a proceeding to a family court in any other county where the proceeding might have been originated and shall... ' Here the respondent has not shown 'good cause' for this proceeding to be transferred. On the other hand, based on the allegations contained in the petition, the children being enrolled in the Oceanside School District and their contact with Mental Health Professionals in Nassau County and the possibility of Oceanside School District personnel being called as witnesses, good cause to maintain venue in Nassau County has been established and mitigate against transferring this matter to Queens County. Therefore, based on the foregoing, IT IS HEREBY, ORDERED, that the respondent's motion to change venue to Queens County and consolidate it with the proceedings he commenced in that County are denied in its entirety. This constitutes the Decision and Order of the Court. FN1. That ex parte Order was served on the petitioner, in this proceeding, on October 1, New Court Rule COURT RULES STATE OF NEW YORK STANDARDS AND ADMINISTRATIVE POLICIES RULES OF THE CHIEF JUDGE Dated October 17, 2007, effective immediately ADMINISTRATIVE ORDER OF THE CHIEF JUDGE OF THE STATE OF NEW YORK Pursuant to the authority vested in me, and in consultation with the Administrative Board of the Courts, and with the approval of the Court of Appeals, I hereby promulgate, effective immediately, a new section 7.2 of the Rules of the Chief Judge, relating to the functions of the attorney for the child, to read as follows: 7.2. Function of the attorney for the child << NY R CHIEF J 7.2 >> (a) As used in this part, 'attorney for the child' means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.

5 (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation. (c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position. (1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances. (2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests. (3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.

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